LT Toren G. Evers-Mushovic, JAGG, USN of Code 45 and LT Michael Hughes, JAGC, USN, have published an article: Rules for When There Are No Rules: Examining the Legality of Putting American Terrorists in the Crosshairs Abroad, 18 New Eng. J. Int’l & Comp. L. 157 (2012).
The article’s thesis is that targeted killing of U.S. citizens in military operations abroad should be controlled by “a rigorous approval process” and proposes “a series of rigorous Rules of Engagement (ROEs) and administrative procedures” to do so.
Here are the suggested ROE:
ROE 1: The Location of the Terrorist Precludes Capture
ROE 2: Terrorist Must Take Direct Part in Hostilities
Their first proposed administrative procedure is to reserve to the President the authority to place a U.S. citizen on the High Value Individual List. Their second proposed administrative procedure is to require the Executive Branch to “conduct an independent and impartial investigation of all operations that target an American terrorist off a recognized battlefield to ensure that the ROEs and administrative procedures we have proposed are followed” due to the impracticability of “a pre-operation investigation and hearing through the courts.” “Once the investigation is completed it should be delivered to both the U.S. Senate and House of Representatives Committees on Intelligence in order for Congress to wield its oversight powers. Additionally, the findings of the investigations should be made public, with classified sections redacted as necessary.” They suggest that “the investigatory body could be modeled after the Central Intelligence Agency’s Inspector General (IG), in which the IG is subject to Senate confirmation and can only be removed by the President.”