“Targeted Killings – What We Don’t Know”
One day last month several men – the number is disputed — were incinerated in a hamlet in
Pakistan. The Pakistani military called them Al Qaeda terrorists. Local villagers said they were
innocent civilians. The Pakistani military claimed they were killed by Pakistani helicopter
gunships. Villagers said they were killed by a missile fired from a familiar sight in their skies — a
Predator, an unmanned drone operated by American intelligence.
What is the truth? Will we ever know? How?
On another day a few years ago, several men were incinerated in a car traveling across the
Yemeni desert. United States government sources let it be known that they were killed by a
missile fired by a CIA Predator drone. At least one was believed by American intelligence to
have been involved in an Al Qaeda attack that killed sailors on an American ship in a Yemeni
harbor years earlier.
Was the incinerated man guilty? What about his companions? What intelligence sources, with
what degree of credibility, led to their deaths? Will we ever know? How?
Questions like these have been left unanswered ever since President Bush, in the wake of 9/11,
reportedly issued a directive authorizing targeted killings of suspected terrorists. How many
killings have been carried out? Against whom? Where? On the basis of what quality of
Again, we do not know. Decades may pass before declassified documents give us the
government’s version, at least, of these killings. By then it may be too late to check whether
other evidence may corroborate – or impeach — the official story.
Are these killings lawful? The short answer is, it depends. The problem is, it depends on facts
which are secret, and virtually unknowable outside a small circle of people inside government.
Only they have access to the relevant classified intelligence. They are subject to no effective
check or balance.
Under international human rights law, if one views the targets of our Predator missiles as persons
suspected of criminal acts of terrorism, then the killings are plainly unlawful – unless the victims
were targeted while preparing an imminent terrorist attack which could not otherwise be
The contrary view – that an executive official, on the basis of secret intelligence information –
can impose what amounts to instant capital punishment, with no trial or due process of law –
would open the door to tyranny.
But what if the suspected terrorists are viewed, not as criminal suspects, but as enemy combatants
engaged in armed conflict against the United States?
In that view the killings must be viewed through the lens of international humanitarian law. How
one should apply the Geneva Conventions and other laws of war to targeted killings is a matter
debated by scholars.
Where the killings take place in a recognized war zone, such as Afghanistan, there is a strong
legal argument that persons believed to be in Al Qaeda may be targeted as combatants.
On the other hand, where the killings take place in Yemen – far from any battlefield, and long
after the attack on our Navy ship – the case for the existence of an “armed conflict” within the
meaning of the Geneva Conventions is weak. And the risk of bypassing the ordinary restraints of
due process of law is greater: the targets begin to look more like criminal suspects and less like
combatants in a war.
Israeli human rights expert David Kretzmer, a former member of the United Nations Human
Rights Committee, proposes to bridge the dichotomy between suspect and combatant. In cases of
armed conflict between a state and a terrorist group, he would apply aspects of both human rights
and humanitarian law. Suspected terrorists could be targeted, but only on the basis of clear and
convincing evidence that they are in fact terrorists, and only when necessary to prevent an
imminent terrorist attack.
In theory this is defensible. If the intelligence information is shaky, the suspect could not be
targeted. Or if he could feasibly be arrested, he could not be executed instead.
The problem comes in practice. No one outside the small circle of decision makers knows the
quality of the intelligence information. No court – not even the secret wiretapping court –
reviews the identification of the suspect as a terrorist, or the imminent threat he supposedly
presents. The executive acts alone, unchecked.
Even if Americans are inclined to entrust their President with such a license to kill, are we
prepared to grant that same license to other Commanders in Chief? After all, if international law
permits George Bush secretly to kill people he suspects are terrorists, then despots like Robert
Mugabe, Fidel Castro and Muammar Khaddafi can also claim the right to kill people they say are
“terrorists” — on the basis of secret Zimbabwean, Cuban or Libyan intelligence, unseen and
unreviewed by any court.
No President should have such power outside a traditional combat zone. Whatever uncertain gain
there might be in the war on terrorism, the cost to the rule of law is simply too high. Unless, of
course, we are content to convert the entire world into Dodge City.
Doug Cassel’s commentaries are generally broadcast Wednesdays during the noon hour of the
Worldview program on Chicago Public Radio, 91.5 FM, and rebroadcast at 9 PM in the evening.
Views expressed are personal views of the author and not necessarily those of Notre Dame Law
School, the Center for Civil and Human Rights or Chicago Public Radio