Rethinking Targeted Killing Policy: Reducing Uncertainty, Protecting Civilians from the Ravages of both Terrorism and Counterterrorism

Targeted killing is a lethal and irreversible counterterrorism measure. Its use is governed by ambiguous legal norms and controlled by security-oriented decisionmaking processes. Oversight is inherently limited, as most of the relevant information is top secret. Under these circumstances, attempts to assess the legality of targeted killing operations raise challenging, yet often undecided, questions, including: How should the relevant legal norms be interpreted? How unequivocal and updated must the evidence be? And, given the inherent limitations of intelligence information, how should doubt and uncertainty be treated? Based on risk analysis, organizational culture and biased cognition theories, as well as on recently released primary documents (including the U.S. Department of Justice Drone Memo and the Report of the Israeli Special Investigatory Commission on the targeted killing of Salah Shehadeh) and a comprehensive analysis of hundreds of conflicting legal sources (including judicial decisions, law review articles, and books), this Article offers new answers to some of these old and taunting questions. It clearly defines legal terms such as “military necessity” and “feasible precaution;” it develops a clear-cut, activity-based test for determinations on direct participation in hostilities; it designs an independent ex-post review mechanism for targeting decisions; and it calls for governmental transparency concerning kill-lists and targeting decisionmaking processes. Most importantly, it identifies uncertainty, in law and in practice, as an important challenge to any targeted killing regime. Based on analysis of interdisciplinary studies and lessons from the experience of both the United States and Israel, it advocates a transparent, straightforward, and unambiguous interpretation of targeted killing law—an interpretation that can reduce uncertainty and, if adopted, protect civilians from the ravages of both terrorism and counterterrorism