Documentos de Académico
Documentos de Profesional
Documentos de Cultura
Targeted Killing Neg ENEMY COMBATANTS ARE RESTRICTED FROM COURT ACCESS............................................................20 TARGETED KILLING IS IMMORAL IN THAT IT SANCTIONS THE USE OF LETHAL FORCE WITHOUT DUE PROCESS .........................................................................................................................................................21 TARGETED KILLING IS MORE IMMORAL THAN INDEFINITE ATTENTION............................................21 TARGETED KILLING DENIES DUE PROCES.....................................................................................................21 GENERALLY BAD...........................................................................................................................................................23 TARGETED KILLING IS A BAD WAY TO FIX PROBLEMS..............................................................................23 TARGETED KILLING IS A BAD WAY TO FIX PROBLEMS..............................................................................23 TARGETED KILLINGS DRAW BACKS ARE MANY AND VARIED..................................................................24 OTHER STATES MAY EMULATE THE U.S. AND ISRAELI TACTICS ON TARGETED KILLING..............25 HISTORICAL SIGNIFICANCE.......................................................................................................................................26 IN THE PAST ASSASSINATION HAS LED TO NEGATIVE CONSEQUENCES.............................................26 INTERNATIONAL LAW VIOLATION...........................................................................................................................27 THE UNS STANCE ON DETAINING TERRORISTS..........................................................................................27 TARGETED KILLINGS DO NOT FULLY COSIDER INTERNATIONAL LAW................................................27 CURRENT INTERNATIONAL LAW IS NOT IN A PLACE TO GUIDE THE BEHAVIOUR OF STATES USE OF TARGETED KILLING........................................................................................................................................27 TARGETED KILLINGS STATUS IS UNCERTAIN UNDER INTERNATIONAL LAW...................................29 TARGETED KILLING VIOLATES INTERNATIONAL LAW..............................................................................29 TARGETED KILLING THREATENS INTERNATIONAL LAW PROTECTING CIVILIANS..........................29 TARGETED KILLING VIOLATES INTERNATIONAL LAW..............................................................................30 POLITICAL/NON-POLITICAL DISTINCTIONS CANNOT ACCOUNT FOR NON-STATE ACTORS LIKE TERRORIST ORGANIZATIONS............................................................................................................................30 TARGETED KILLING IS ILLEGAL...............................................................................................................................32 THE LEGAL CONCERNS OF TARGETED KILLINGS........................................................................................32 GOVERNMENT ILLEGALLY USING TARGETED KILLING FOR THEIR OWN PERSONAL AGENDA....32 TARGETED KILLINGS JUSTIFIED WITH SELF DEFENSE ARE ILLIGAL ..................................................32 ARTICLE 61 SHOWS THAT TARGETED KILLING IS ILLEGAL .....................................................................33 STATE LEADERS ARE NOT LEGITIMATE TARGETS OF TARGETED KILLINGS......................................33 SUPPORTERS OF TERRORISM ARE NOT LEGITIMATE TARGETS OF ASSASINATION......................33 MORAL QUESTIONABILITY ........................................................................................................................................35 MORAL QUESTIONABILITY OF TARGETED KILLINGS.................................................................................35 TARGETED KILLING UNDERMINES HUMAN DIGNITY AND THE RULE OF LAW.................................35 TARGETED KIILING UNDERMINES PEACE/STABILITY; VIOLATES HUMAN RIGHTS.........................35 TARGETED KILLINGS PUT NATIONS ON A MORAL SLIPPERY SLOPE.....................................................36 RETALIATION.................................................................................................................................................................37 BACKLASH FROM KILLING OSAMA BIN LADEN............................................................................................37 RELEASING BIN LADEN DEATH PICTURES WOULD INCITE BACKLASH................................................37 RETALLIATION FOR KILLING BIN LADEN .....................................................................................................37 TARGETED KILLING PROVOKES RETALIATION AND HARMS INNOCENTS...........................................37 REVENGE AND INTIMIDATION ................................................................................................................................39 INTIDMIDATION AND/OR REVENGE IS NOT TARGETED KILLING .........................................................39 NAMED KILLINGS/ASSASINATIONS VIOLATE JUST WAR BECAUSE THEY ARE MOTIVATED BY VENGENCE, NOT SELF-DEFENSE......................................................................................................................39 TARGETED KILLING SHOULD ONLY BE USED IN WAR.......................................................................................40 TARGETED KILLING ONLY SHOULD BE USED IN WAR...............................................................................40 TARGETED KILLING FOR REVENGE IS NOT JUST................................................................................................41 MILITARY STRIKES ARE NOT ACTS OF SELF-DEFENSE...............................................................................41 TERRORISM....................................................................................................................................................................42 ACTS OF TERROR WERE CONSIDERED AS INDIVIDUAL CRIMES, NOT AN ACT OF WAR, DURING THE CLINTON ADMINISTRATION AND THEY WERE TREATED AS SUCH..............................................42 THE USE OF TARGETED KILLING AS A COUNTER-TERRORISM ACT HAS BEEN CONSIDERED ILLEGAL THUS FAR...............................................................................................................................................42 TARGETED KILLING DISTRACTS FROM PREVENTION OF TERRORISM.................................................42
Targeted Killing Neg TERRORISM IS GROWING DUE TO DISTRACTION OF TARGETED KILLING..........................................42 TURNING BIN LADEN INTO A MARTYR WOULD BE BAD............................................................................43 TARGETED KILLING UNDERMINES INTERNATIONAL LAW AND DUE PROCESS................................43 TARGETED KILLINGS RISK FURTHER EMBOLDENING TERRORIST ORGANIZATIONS.....................43
Targeted Killing Progressive Neg I negate the resolution (Resolved: targeted killing is morally permissible as a foreign policy tool) I accept all of the affirmatives definitions excluding_______ I would like to add these definitions to the debate____ Defintions: Morally Permissible In Ethics in the First Person, Deni Elliott defines permissibility thusly:
A moral system differentiates among behaviors that are morally prohibited, those that are morally permitted, those that are morally required, and those that are morally encouraged.... Permitted [means] behavior that is within the bounds of the moral system. It is morally permitted to
act in any way that does not cause others unjustified harms.
Thus, we are able to draw a distinct line between assassination and targeted killing. In sort: assassination is a killing conducted against an individual or individuals for purely political or ideological reasons. Targeted killing, in sum, is a killing conducted against an individual or individuals without regard for politics or ideology, but rather exclusively for reasons of state self-defense. The value is human rights which is the paramount value for this round because human rights are our shield against evil. Kant said that human rights are non-evil and the core of our morality. In a world where human rights are sacrificed in the name of a convenient foreign policy tool, any action could be conceivably justified. If we The Criterion for this round is the Universal Declaration of Human Rights or the UDHR established by The United Nations. This debate will be concerned with Article 3. Everyone has the right to life, liberty and security of person. Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment Article 6. Everyone has the right to recognition everywhere as a person before the law. Contention 1: Setting the precedence of killing Julian Assange will lead to escalation of conflict. Sub. A) KILLING JULIAN ASSANGE DOESNT SOLVE FOR CYBER THREATS Naya, 2010. (Pramod K, Staff Writer. Wikileaks, the New Information Cultures and Digital Parrhesia. The Economic and Political Weekly. No. 52 (December 25, 2010) p.28) WL cannot be identified just with an individual Julian Assange, even though he pops up as soon as one opens the website. Assange is a messenger, he is neither messiah nor the message. But, fortunately or unfortunately, he has become identified as the face of WL. However, to do this is to personaliseindividualise what is really a cultural phenomenon. It draws breath from the subcultural hacker movement. For protest to effect any political change, cyborg theorist Chris Hables Gray, the creator of
the Cyborg Bill of Rights, points out, it requires embodiment: you testify to the truth with your body (2001: 44). The persecution of Assange his dramatic arrest, the rape charges, the threats of extradition and possible assassination makes for a very strange mix where the virtual meets the fleshandblood: online activity whose validity and value are sworn to by the very real threat to the person of Julian Assange. Conversely, does eliminating the body of Assange alter the virtual threat that
the new culture of information represents? The answer is no, for we are in the age of an electronic civil society and information culture unlimited to bodies, geographies or national boundaries
These human rights proponents expound that a policy of targeted killing will not shake the foundations of terrorism but rather will only attract retaliation, thereby [*877] widening the gap between Arab and Western societies and confirming that Islam is being singled out, scrutinized, and targeted. Fiercer voices vehemently condemn the practice of targeted killing under international law - with some emphasis on foreign policy and diplomatic considerations regardless of the circumstances. The most attractive argument against a policy of targeted killing relies predominantly upon due process concerns and procedural safeguards. In addition, not only is targeted killing incompatible with due process, but it also eludes the traditional war paradigm, while being inconsonant with the United States' obligations toward Iraqi and Afghani nationals on their respective territories. Sub b) TARGETED KILLING UNDERMINES HUMAN DIGNITY AND THE RULE OF
LAW
Proulx, 2005 (Vincent-Joel, Doctoral Candidate, If the Hat Fits, Wear It, If the Turban Fits, Run for your Life: Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists, Hastings Law Review 56.801, 889-890). This leads us to the most compelling argument against a policy of targeted killing: The lack of due process resulting from this practice. When armed forces proceed to aerial attacks without warning, they are actually curtailing due process, violating the audi alteram partem principle, preventing the target from contesting the determination that he or she is a terrorist, and imposing a unilateral death penalty. In this [*890] way, the very purpose of international human rights is defeated, whether through the violation of the right to a fair trial, the absolute circumvention of the right to liberty, or the disregard of the inherent right to life. The targeted individual is not afforded the opportunity to surrender nor to claim POW status. Unlike indefinite detention, where the suspected terrorist is temporarily deprived of personal freedom, targeted killing entails far greater consequences with absolutely no margin for judicial review, appeals, or any kind of procedural or substantive safeguards for the targeted individual. In this light, it becomes accurate, and perhaps trite, to state that targeted individuals are stuck in a legal black hole. In any given case, endorsing a policy of targeted killing essentially means that a single bullet will be prosecutor, judge, and executioner all at once. On that basis alone, the international community should categorically deplore and condemn targeted killing under international law, as it challenges fundamental notions of law and dignity. Human rights are defeated through the violation of the right to a fair trial, the absolute circumvention of the right to liberty, disregard of inherent right to life.
DEFINITIONS
TARGETED KILLING DEFINED
Melzer, 2008 (Nils, PhD researcher of law. Targeted Killing in Law. Oxfordshire, in South East England: Oxford University Press, p. 3). Targeted killing: a use of lethal force by a subject of international law that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary), and deliberate (meaning that the death of the targeted person [is] the actual aim of the operation, as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims) http://ejil.oxfordjournals.org/content/20/2/449.full
ASSASSINATION DEFINED
Parks, 1989 (W. Hays, Special Assistant for Law of War Matters to The Judge Advocate General of the Army, Memorandum on Executive Order 12333 and Assassination. Department of the Army: Office of the Judge Advocate General of the Army. (November 2, 1989) www.hks.harvard.edu/cchrp/Use%20of %20Force/.../Parks_final.pdf accessed July 10, 2011). While assassination generally is regarded as an act of murder for political purposes, its victims are not necessarily limited to persons of public office or prominence. The murder of a private person, if carried out for political purposes, may constitute an act of assassination. For example, the 1978 poisoned-tip umbrella killing of Bulgarian defector Georgi Markov by Bulgarian State Security agents on the streets of London falls into the category of an act of murder carried out for political purposes, and constitutes an assassination. In contrast, the murder of Leon Klinghoffer, a private U.S. citizen, by the terrorist Abu el Abbas during the 1985 hijacking of the Italian cruise ship Achille Lauro, though an act of murder for political purposes, would not constitute an act of assassination. The distinction lies not merely in the purpose of the act and/or its intended victim, but also under certain circumstances in its covert nature.5 Finally, the killing of Presidents Abraham Lincoln, James A. Garfield, William McKinley, and John F. Kennedy are regarded as assassination because each involved the murder of a public figure or national leader for political purposes accomplished through surprise attack.
THE ROOT OF ASSASSIN DOESNT MATTER BECAUSE THEY ALL POINT IN THE SAME GENERAL DIRECTION
Machon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, Targeted Killing as an Element of US Foreign Policy in the War on Terror. Monogram. (May 25, 2006) p. 12) Regardless of the root derivative of the Arabic word, this radical sect of Ismaili Muslims in the Middle Ages introduced the word assassin into most modern European languages. In general, it means a murderer, more particularly one who kills by stealth and treachery, whose victim is a public figure and whose motive is fanaticism or greed.
Targeted Killing Neg public position and the killing motivated to achieve some political objective.41 Colonel Parks rationalizes that a peacetime killing, in order to constitute assassination, may also require the act to constitute a covert activity.42 This monograph adopts the analysis of Major Tyler Harder, in which he summarizes most definitions of peacetime assassination and establishes the requirement for the following three elements to be present: (1) a murder, (2) of a specific individual, (3) for political purposes.43 For a killing in peacetime to qualify as an assassination, all three of these criteria must be met.
ASSASINATION
TARGETED KILLINGS OBJECTIVE IS ASSASINATION
Proulx, 2005 (Vincent-Joel, Doctoral Candidate, If the Hat Fits, Wear It, If the Turban Fits, Run for your Life:
Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists, Hastings Law Review 56.801, 874).
The policy of targeted killing shares an intimate connection with the policy of indefinite detention, in that both practices have a significant impact on human rights and due process. However, there is one significant difference between the policies, hinging on the range of consequences on the international human rights scheme. Under indefinite detention, the rights of the detainee are suspended temporarily, while the reintegration of the individual in society is still possible. Conversely, under the targeted killing practice, such prospect does not exist: the whole objective of the policy is to assassinate the target. n354 This objective inherently carries with it significant circumvention of usual due process and constitutional safeguards with no possibility of appealing the decision nor of presenting a defense against the adversary's finding of culpability. Aside from the separate issue of torture, which partially falls under the question of indefinite detention, these two policies are the most important and troublesome practices in the war on terror. In assessing their validity, one common thread must act as a point of reference: international human right standards
Much has been written on the issue of targeted killing, both in favor and against such a policy. Many compelling arguments have been advanced in legal scholarship. For example, several commentators expound that, under certain circumstances, targeted killing may be interpreted as a legitimate exercise of the inherent right to self-defense under international law. Although it is fair to assert that targeted killing can, at best, only be reconciled tenuously with the extant international framework, it has been argued that a logic of anticipatory self-defense could also justify such practice. In this spirit, it has sometimes been advocated that targeted killing is the most attractive remedy in forestalling terrorist activities. Even though the conceptual difference between "targeted killing" and "assassination" has engendered confusion, influential voices argue that killing terrorists is a lawful exercise of military activity, as opposed to assassination, which necessarily entails removing civilian political leaders for political purposes. In fact, several American presidents have endorsed the idea of targeted killing and, consequently, enticed the Department of Defense to develop a guiding policy on this issue. For instance, President [*876] Clinton reportedly vetted Osama bin Laden's capture or death. The response to 9/11 is no exception. After that day, President Bush apparently authorized the Central Intelligence Agency (CIA) to "pursue an intense effort to end bin Laden's leadership of Al Qaeda."
n355 n356 n357 n358 n359 n360 n361 n362 n363 n364
overwhelming influence during the Civil Rights Movement. But it still cannot be the case that the person killed must be a "political leader" of some sort, because we consider the targeted killing of a "top al Qaeda operative ... who planned and supervised the attack in Yemen on the U.S. warship Cole" an assassination, but we would not consider him to be a political leader. But even there, one might [*476] argue that by definition, terrorism is politically motivated, so a leader within a terrorist organization is a "political leader."
n89 n90
part in the engagement and die, he would not necessarily have been assassinated because, even though he was intentionally killed by a member of the military in his role as a member of al Qaeda, he wasn't (at least in this hypothetical) killed based on his position as al Qaeda leadership. Although one might argue that necessitating that the individual be killed because of his or her title, position, prominence, or influence incorporates a motive for the killing into the act, this is not the case. A person could be targeted vis a vis his or her position for a variety of motives, including financial, political, or religious, but what is significant is not why he or she is targeted, but who is targeted, and in what capacity. Indeed, it is this element that distinguishes assassination from other types of intentional killing
n100
COLLATERAL DAMAGE
OBAMAS RAISE IN DRONE ACTIVITY WITH TARGETED KILLING LEADS TO GREATER CIVILIAN DEATHS
Khan, 2011 (Jemima, Column writer, The things you say sound great Mr. President. So why do you end up disappointing us? The Independent Issue.Number (June 25, 2011): p.14). It didn't take long for Pakistanis to realize and for local newspapers to report with colorful snaps of collateral damage that while dastardly Bush - the real baddie, surely - had used unmanned predator drones 45 times in his eight years in office, Obama was not going to be outdone. He unleashed 118 drones on Pakistan last year alone. According to a Brookings Institute report, charmingly entitled "Do targeted killings work? for every one militant killed by these strikes, 10 or so civilians have died. According to US commanders' official figures, 14 al-Qa'ida leaders have been killed in the tribal areas and 700 civilians. Officials were quick to point out that, of those 700 innocents, "only" 25 per cent were a direct result of Nato bombs. Phew.
OBAMAS RAISE IN DRONE ACTIVITY WITH TARGETED KILLING LEADS TO GREATER CIVILIAN DEATHS
Hameed Khan, 2009 (Farooq, Staff Writer, Licence to kill without accountability! The Nation (Pakistan) Nationwide International News.Number (July 14, 2010): p.#). While there were 47 drone strikes in 2009 with 708 killed, this year has already seen 35 attacks causing 350 civilian deaths. More intensified drone strikes mean more innocent men, women and children are getting killed causing increased hatred against the US. Consequently, more young tribals line up to join their militant comrades with calls for revenge growing louder.
OBAMAS RAISE IN DRONE ACTIVITY WITH TARGETED KILLING LEADS TO GREATER CIVILIAN DEATH
Byman, 2009 (Daniel L, Senior Fellow, Do Targeted Killings Work? U.S. Military, Military Technology, Defense Strategy, Intelligence (July 14, 2009): p.#). Critics correctly find many problems with this program, most of all the number of civilian casualties the strikes have incurred. Sourcing on civilian deaths is weak and the numbers are often exaggerated, but more than 600 civilians are likely to have died from the attacks. That number suggests that for every militant killed, 10 or so civilians also died
OBAMAS RAISE IN DRONE ACTIVITY WITH TARGETED KILLING LEADS TO GREATER CIVILIAN DEATHS
Ofek, 2010 (Hillel, Writer, The Tortured Logic of Obamas Drone War . New Atlantis No. 27 (Spring 2010): p.35-44). Second, while U.S. drones have impressive surveillance and targeting capabilities, the intelligence they rely on is never infallible; many Predator strikes are planned in response to tips from local informants who have their own agendas. This can result in the deaths of innocent civilians. As Jane Mayer put it in The New Yorker, "The history of targeted killing is marked by errors." According to a New America Foundation report assessing reliable press accounts of the strikes, the 123 reported drone attacks in northwest Pakistan from 2004 to March 29, 2010 have killed between 871 and 1,285 individuals, about a third of whom were civilians. The Long War Journal, a blog that tracks terrorist groups, calculates a much lower civilian casualty rate, with 1,114 militants and 94 civilians killed in Pakistan since 2006. (Of course, it should go without saying that the real blame for innocent deaths will, at bottom, always lie with terrorists, who refuse to follow the laws of war that require combatants to separate themselves from civilians.)
U.S. MUST JUSTIFY ASSASSINATION POLICY DUE TO HIGH COLLATERAL DAMAGE RATES
Macintyre, 2010 (Ben, Staff Writer, U.S. Must Justify its Policy of Secret Killings The Australian Issue.Number (March 26, 2010): p.10). The US's preferred euphemism is ``targeted killing''; on the ground the procedure is called ``find, fix and finish''. The Obama administration prefers the term ``elimination'' to ``assassination'', yet that is what is taking place. The CIA's targeted killings may be justified on legal, ethical and practical grounds: if a gun is pointed at your head, violent self-defense is a reasonable response. The problem is that the US administration has not sought to justify, or even properly acknowledge, its tactics, just as Israel has neither admitted nor defended the al-Mabhouh hit. Drone strikes take place amid the strictest secrecy. The US administration has made no direct comment on them, nor divulged the criteria by which individuals are selected. The CIA reportedly keeps a constantly updated list of shoot-to-kill targets ``deemed to be a continuing threat to US persons or interests''. But how a person gets on that list -- or off it -- is unclear. Are terrorists and insurgents singled out for what they have done in the past, or what they might do in the future? The latter may be a defensible rationale for assassination, the former is not. Is the risk of collateral damage factored in? How secure is identification before the trigger is pulled? As Milt Bearden, a former CIA officer, recently observed: ``there is precious little intelligence reliable enough to be the basis for a death sentence. The legal basis for drone strikes is also murky. Assassination may be justifiable in time of war, but the CIA is a civilian organization, and the US is not at war with Pakistan, Yemen or Somalia. Obama has plainly decided that ``targeted killing'' is a legitimate and effective tool of war. He must now justify that to the world and provide an official accounting of how, when and why life-and-death decisions are taken.
Targeted Killing Neg rising by the year.According to International Council on Security and Development, 90% of Afghan territory is now under the control of or in the grip of insurgents.
WHILE TARGETED KILLINGS MAY COMPLETE THERE OBJECTIVE THEY ALSO TAKE OUT CIVILLIANS
Fisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, Targeting Killings, Norms, and International Law, Columbia Journal of Transnational Law, (2007) P. 712-713) On November 3, 2002, a U.S. Predator unmanned aerial vehicle launched a missile at a car traveling in a remote part of Yemen, killing six men, all suspected members of the al Qaeda terrorist network. n1 Among the dead was the principal target of the attack, Qaed Sinan al-Harithi, one of Usama bin Laden's former security guards and a key figure in the October 2000 assault on the U.S.S. Cole. n2 Since 2002, the United States has continued to employ the same tactic used in the al-Harithi attack in its "Global War on Terror." Well-known examples include the December 2005 elimination of senior al Qaeda operative Abu Hamza Rabia in Pakistan and the unsuccessful effort to kill al Qaeda co-leader Ayman al-Zawahiri in January 2006, also in Pakistan, which killed eighteen civilians. n3 These instances seem to demonstrate that the United States has adopted a tactic similar to one the Israeli government has openly used to counter terrorist attacks since the outbreak of the al-Aqsa Intifada in September 2000. n4 During the current Intifada, Israel has identified, located, and attacked hundreds of alleged terrorists with bullets, booby traps, car [*713] bombs, tanks, helicopter gunships, and fighter aircraft. n5 In the course of conducting
such operations, from the al-Aqsa Intifada's inception through March 2006, Israel has killed 215 alleged terrorists and 119 civilians.
the use of drones far away from active theaters of war is increasing, but that the operators of the drone program have expanded their target list to include a motley collection of actors such as Pakistani insurgents, individuals selected by the Pakistani government, and drug lords
COUNTRYS CONSENT
THE UNITED STATES CONDUCTS TARGETED KILLINGS WITHOUT THE CONSENT OF INVOLVED COUNTRIES
Schmitt 2009 (Michael, Dean and Professor of International Law George C. Marshall European Center for Security Studies, Targeted Killing in International Law, American Journal of International Law, (October 2009) P. 814) Despite the ostensible normative clarity, the subject of "targeted killings" became highly politicized following Israel's 2000 acknowledgement that it was engaged in a policy of conducting them in its conflict with Palestinian fighters. U.S. targeting of transnational terrorists beyond the battlefields of Afghanistan and Iraq instigated further international opprobrium. Even today the United States is actively conducting attacks against specific Al Qaeda and Taliban leaders in the tribal areas of Pakistan, at times without the overt consent of that country's government. The Obama administration has maintained this Bush-era strategy. Although the controversy over targeted killings derives in great part from the fact that Israel and United States are its main actors, other states, notably Pakistan and Russian, have engaged in similar strikes. Moreover, numerous states have adopted peacetime law-enforcement policies to undertake actions that, while not targeted killing as that phrase as understood in common parlance, might be styled as such. These policies have spawned significant domestic legal debate in affected countries--and also litigation.
DUE PROCCESS
TARGETED KILLING VIOLATES DUE PROCESS
Target News Service, 2010( Targeted News Service, Court Urged to Dismiss Challenge to Targeted Killing of U.S. Citizen, Targeted News Service, 5 October, L/N)
The lawsuit was filed by the ACLU and the Center for Constitutional Rights on behalf of Al-Aulaqi's father. The suit alleges that senior Executive Branch officials have targeted Al-Aulaqi for death. Al-Aulaqi, who is in hiding in Yemen, has been determined to be a leader of al Qaeda on the Arabian Peninsula (AQAP) and is believed responsible for the attempted bombing of a Northwest Airline flight as it approached the airport in Detroit last Christmas Eve. The lawsuit does not dispute Al-Aulaqi's affiliation with al Qaeda. The ACLU alleges, however, that the targeted killing of an American citizen outside of a war zone (which the ACLU defines to include Afghanistan and Iraq) violates the Due Process Clause of the Constitution. The ACLU asserts that due process restricts use of lethal force against an American citizen to situations in which the citizen "presents a concrete, specific, and imminent threat to life or physical safety and there are no means other than lethal force that could reasonably be employed to neutralize the threat." The ACLU seeks an injunction against the use of lethal force outside of a war zone, except under the circumstances outlined above.
THE US CONSTITUTION RESTRICTS DIPRIVING LIFE WITHOUT DUE PROCESS Murphy, Radsan, 2008 (Richard, Afsheen, Professors of Law at Texas Tech University and William Mitchell College of Law, DUE PROCESS AND TARGETED KILLING OF TERRORISTS, cardozolawreview.com, p. 5)
This Article stays closer to home, arguing that American due process principles should control targeted killing of suspected terrorists and applying those principles to alleged CIA Predator strikes. One obvious spur to our inquiry is the text of the Fifth Amendment itself, which, without obvious limitation, bars the federal government from depriving any person of life without due process of law.21 Other spurs include recent blockbuster opinionsHamdi v. Rumsfeld22 and Boumediene v. Bush23that use administrative law principles to limit executive authority to detain persons as enemy combatants.
TARGETED KILLING IS IMMORAL IN THAT IT SANCTIONS THE USE OF LETHAL FORCE WITHOUT DUE PROCESS
Fisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, Targeting Killings, Norms, and International Law, Columbia Journal of Transnational Law, (2007) P. 718-719) The supporters of this view maintain that, because IHR is most applicable under the circumstances, the legal assumptions and rules pertaining to law enforcement models based on the principles of [*719] due process should apply. As such, every individual should benefit from the presumption of innocence; persons suspected of perpetrating or planning terrorist attacks should be arrested, detained, and interrogated with due process of law; and force should only be employed if it is absolutely necessary, there are no other measures available, and is not of a lethal nature if a lesser degree of force can be effective. "The paradigmatic case in which the use of force would be justifiable [in the law enforcement context] is where serious violence against the person to be protected is so imminent that trying to arrest the perpetrator would allow him time to carry out his threat." For those claiming that targeted killing should be examined under IHR, the tactic is illegal because it sanctions the use of lethal force without the necessary due process. More specifically, proponents of the IHR approach would likely argue that no instance of targeted killing by the United States or Israel has yet satisfied the law enforcement principles of imminence and absolute necessity.
In a broader sense, from the perspective of international law and order, condoning the targeted killing of human beings, without any form of legal or judicial adjudication, regardless of the crimes involved, would be tantamount to an aberration. Unlike forcible displacement or abduction of suspected terrorists, where the objective is to neutralize, relocate, and prosecute certain individuals under domestic law, the very purpose of targeted killing is to eliminate a human being without detention or interrogation. The policy of targeted killing inherently entails greater stakes and, correspondingly, moral objection to it should be heightened.
n388 n389
The ticking bomb paradigm has sometimes been invoked to vindicate a policy of targeted killing. Yet, when armed forces are in fact pursuing a plan to eradicate a suspected terrorist through covert or surreptitious means, the case for the ticking bomb argument is disabled. In such instances, the admitted objective, whether grounded in pre-emption or reaction, is not to prevent a future attack. Rather, it is to remove the person for reasons of convenience or to circumvent any subsequent judicial proceeding involving the targeted individual. Hence, the threat, which was the very existence of the suspected terrorist, has been eliminated without any genuine efforts to prosecute the targeted individual through legitimate channels. This troublesome practice offers all the convenience, practicality, and peace of mind of sentencing a criminal to death, but without the initial finding of culpability.
n451 n452
GENERALLY BAD
TARGETED KILLING IS A BAD WAY TO FIX PROBLEMS
McLenaghen, 2011, (Don, Contributor, radio freethinker. Radio Free Thinker, Targeted Killings, Our Lesser Selves. 5/15/011)
As we have all heard Bin Laden (the supposed mastermind of the USS Cole attack, the US Embassy bombings and of course 9/11) was killed by a USA Naval SEAL hit team. There are many way that commentators have tackled this issue but the one I think most interesting is how ordinary this event actually was. Bin Laden was one of thousands killed as enemy combatants in extra-judicial assassinations or targeted killings. So I thought I would see if a legal base could be found for the killing of Bin Laden. I should preface this discussion by stated that I shed no tears over Bin Ladens death and agree the world is better without him however
does the rational and method of his demise perhaps cast a dark shadow that may harken a darker and less civilized world on the horizon?First; irrespective of the legality of the assassination of, there is the issue of whether the US had to kill, Bin Laden. This argument falls into three camps. First, if Bin Laden was attempting to (directly or through his minions) defend himself against the Navy SEALS and was killed in this fire-fight; we could understand them killing Bin Laden . This instance would be a
legal excuse for the killing, however the current story (which seems to be holding as accurate) states that there was no fire-fight, that the only armed person was outside the compound and that Bin Laden was unarmedso no legal cover here.Second,
it is not unreasonable that the SEAL team worried that Bin Laden was wearing a bomb-vest or more likely the place was booby-trapped; again we could understand them killing Bin Laden. One could
say that if he posed a credible threat even unarmed in a conventional sense lethal force was necessary however it seems unlikely (but not impossible) that Bin Laden wore a suicide jacket while lounging around the houseagain from reports there was no warning about the raid which proceeded to its target quickly; so its unlikely he would be wearing such a piece of equipment. With regards to booby-traps, it seems more valuable to keep him alive to have him point out the trapshow killing Bin Laden would disarm these traps is beyond meso again no legal cover found here.Third;
although not making the assassination moral or legal but justifying it on pragmatic grounds because it is also conceivable if Bin Laden were incarcerated there would be a large number Bin Laden sympathisers who would instigate innumerable (or maybe just one too many) hostage taking or acts of terror in order to get Bin Laden releaseda situation that would put the US in an impossible situation; again making the killing understandable. This is probably the true
reasoning for the kill order; even if no rescue operations were launched by his sympathisers, there is still the whole logistics of trying to bring him to trial. Unlike the other high ranking captures, its seems impossible for the US administration to disappear him in Gitmo and thus a trial would be necessary , and yet their near complete inability to try effectively any of the important terror suspects leads one to believe this would be one trial too far. We again seem to find no legal cover.A number of people in the pod-o-sphere have been comparing the assassination of Bin Laden to killing Hitler. Ignoring Godwins rule, is this an apt comparison? Well, it can be credibly argued both were people the world would be better off without, that thousands of people died due to these persons efforts and that both were the outspoken enemy of the USA.That said, Hitler was a leader
of an ACTUAL nation legally at war with the USA; Bin Laden was the apparent leader of a NGO with no legal framework. It is true that the USA declared war on Terrorism however; this is not a legal but rhetorical claim. It is also true that during times of war, killing the enemy has a long tradition (for example the killing of Admiral Yamamoto during WWII). However, the structure of Al-Qaeda is largely a fiction created by the USA. The very nature of a cellular terror network is to NOT have a hierarchical structure. This is not to say that Bin Laden was not involved in specific crimes (at least the land mark one of 9/11) but to equate his leadership to that of a commander of the air force or a dictator of a sovereign nation it ridiculous.Bin Laden had been charged (but not convicted) with various crimes in US courts, this is important because under the US law, it is illegal to punish someone charged prior to conviction. Although it is likely impossible to know exactly what happened but it seems plausible that Bin Laden would not have resisted arrest/surrender and could have seen this as a means to re- reinvigorate a waning celebrity. However it seems that when the US (Nobel Peace Prize winning) president Obama ordered the assault on the Bin Laden compound it was a kill order; an order perhaps understandable in a pragmatic way, acceptable in a moral view but highly questionable in a legal reading. This point has become quite murky in the current fog of fake war because of the current US policy of targeted killing.
Targeted Killing is the assertion made first by Israel (1973[1]) then the USA (2002[2]) and later the Russia (2006); that under specific albeit vague (yes, specifically vague is an oxymoron) circumstance the government could authorise the extra-legal execution of particular individuals who were deemed enemy combatants. Although this term itself is ill defined; in the past those assassinated were part of the military structure. In fact the Geneva conventions explicitly prohibited the targeting of specific civilians for assassination. Was Bin Laden an
enemy combatant? I think not. He defiantly was a criminal requiring prosecution and punishment but was not party to any war or civil war, further it is likely that he could have surrendered or been forcibly detained (with the caveats mentioned earlier). The Geneva conventions deemed killing of people who are taking no active part in the hostilities, including members of armed forces who have laid down their arms[3] to be a violation of the law of war and subject to war crimes investigation (at least).Of course under the Bush administration the US altered its definition of a enemy combatant by agreeing that legal combatants conform to the Geneva convention definition, however they introduced a new category unlawful combatants, who are defined as a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, Al-Qaida, or associated forces)[4]The US has made anyone who is a member of Al-Qaida a valid target (of course how one defines WHO is a member is defined largely by the USA although at the time of his death it is impossible to argue Bin Laden did not see himself as part of this group). This definition though was originally intended to provide a legal framework for the indefinite incarceration of detainees at Gitmo. It was only later that this definition was used to justify the extra-legal assignation of individuals BELIEVED to be a threat to US interests. It is also important that with some notable exceptions these targeted killings have been executed by air attacks (Helicopter/planes by Israel and Drone/rocket attacks by the USA) which often get their legitimate target as well as a number of collateral victims. The kind of assassination that happened to Bin Laden has been a common modus operandi of Israel however it is a new(er?) tactic of the USA; one that we should worry about.
OTHER STATES MAY EMULATE THE U.S. AND ISRAELI TACTICS ON TARGETED KILLING
Fisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, Targeting Killings, Norms, and International Law, Columbia Journal of Transnational Law, (2007) P. 738-739) A norm may spread and gain in prominence if States emulate the behavior of some prestigious or otherwise well-known actor, or an actor especially relevant to a particular issue area that has adopted the norm, "even if the emulated actor is not attempting to communicate its behavior." n157 As the world's only superpower, the United States is prestigious and well-known, particularly with regard to matters concerning the use of force, an area in which its geo-strategic position has seen it involved to a unique extent. Similarly, Israel is a conspicuous State that possesses "a special relationship with the subject matter of" n158 terrorism. As such, U.S. and Israeli martial and counter-terrorism norms and behaviors are susceptible to emulation by other States. A targeted killing norm may spread outwards, then, from the United States or Israel, or both, to other States in the international system via emulation. Importantly, emulation builds upon [*738] itself; as more States adopt a particular norm, the rate at which it is emulated is likely to increase as other States come to perceive adoption as "normal." n159 Moreover, because it is rational for actors to adopt innovations, including new norms, when they observe that they have already succeeded for others, targeted killing's exhibited effectiveness - to the extent that other States perceive it - may accelerate a targeted killing norm's emulation. n160 Such rationality may have been what initially led the United States, which has historically looked to Israel for counterterrorism lessons, to adopt a norm permitting targeted killing after 9/11.
HISTORICAL SIGNIFICANCE
IN THE PAST ASSASSINATION HAS LED TO NEGATIVE CONSEQUENCES
Fisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, Targeting Killings, Norms, and International Law, Columbia Journal of Transnational Law, (2007) P.747-748) The assassination of Henry VI of France in 1610, Europe's subsequent slide into the Thirty Years' War, and the political chaos that ensued during that conflict were responsible for associating assassination with systemic disorder and creating the idea that national political figures should be insulated from political violence. n222 Responding to and influencing the social and political structures of that time, early international lawyers Gentili and Grotius helped solidify and spread those notions. Both maintained that the practice of assassinating State political figures, with the titfor-tat cycle that it could engender, diminished the safety of everyday life and contributed to disorder in society. n223 Such changing views also corresponded with [*748] the emergence of the concept of sovereign statehood, which led to the development of mass armies and the notion that political actors, including national rulers, should be viewed merely as agents acting on behalf of their States. Large armies required the types of resources that only large States could provide; large States supported prohibiting assassination because it further advantaged them over smaller States by eliminating a means by which smaller States could have lessened the impact of material disparity. n224 The political-actor-as-State-agent concept effectively eliminated the claim that assassination touched only those most personally responsible and, in doing so, removed assassination's moral and ethical appeal. n225 Together, these shifts, acting in synergy, gave rise to the norm against international assassination, which persists today.
CURRENT INTERNATIONAL LAW IS NOT IN A PLACE TO GUIDE THE BEHAVIOUR OF STATES USE OF TARGETED KILLING
Fisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, Targeting Killings, Norms, and International Law, Columbia Journal of Transnational Law, (2007) P. 717-718) The international legal community is split over the legality of targeted killing as a counter-terrorism tactic under international law. Moreover, the divide is so splintered that there is as yet no agreement on what determinative elements or, for that matter, which legal regime should apply to the targeted killing question. As such, it is doubtful that current international law is in a position to guide the behavior of States with respect to targeted killing. This Part summarizes the many aspects of targeted killing that the international legal community is debating, including: whether international human rights law (IHR), the law of belligerent occupation, or international humanitarian law (IHL) should govern the legal evaluation of targeted killing; whether, if IHL applies as the lex specialis, the hostilities that the United States and Israel are engaged in with terrorists [*718] should be categorized as "international armed conflict" or "non-international armed conflict;" whether, under either of those categorizations of conflict, terrorists should be
defined as "combatants" or "civilians;" whether and for how long, if terrorists meet the definition of civilians, they can be targeted for "taking a direct part in hostilities;" whether targeted killing can ever satisfy the IHL requirement of "proportionality;" and whether targeted killing violates the IHL rule prohibiting assassination.
TARGETED KILLINGS STATUS IS UNCERTAIN UNDER INTERNATIONAL LAW Proulx, 2005 (Vincent-Joel, Doctoral Candidate, If the Hat Fits, Wear It, If the Turban Fits, Run for
your Life: Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists, Hastings Law Review 56.801, 810). There are no ideal solutions or courses of action when chasing a threat as complex and polymorph as terrorist networks. Hence, mitigation of tensions between competing legal concerns and the protection of human life remain noble objectives. We must strive to instill some legitimacy and caution into this international initiative, namely to make the war on terror a preventive rather than curative effort. Each competing legal value must be weighed against similar values with the aim of striking a delicate balance between the objectives of preventing, deterring, and prosecuting terrorist attacks, and fostering a multilateral legal system underpinned by reciprocal respect, restraint, and dignity. Hence, two inextricably linked aspects of the war on terror must be briefly reanalyzed from a human rights perspective. First, is the question of indefinite detention of suspected terrorists, and second is the issue of targeted killing. In addressing the legality of both policies, I survey some of the major relevant international legal restraints, so as to explore whether indefinite detention and targeted killing can prove compatible or, at least, somewhat aligned with the ideals of human rights law.
It is no secret that both the United States and Israel have been engaging in a policy of targeted killing of terrorists. This policy has been sharply criticized as an impediment to peaceful relations and other initiatives conducive to stability, especially in the case of Israel. In 2002, the High Court of Justice of Israel unanimously refused to intervene in the state's policy of targeted killing, which it saw as a non-justiciable issue. Under this policy, the military identifies a particular terrorist and proceeds to remove that person through an aerial strike or other means of assassination. Because this type of practice is incompatible with international law, which categorically prohibits extra-judicial executions, governments often dissimulate their actions. Such is the case in Israel, [*874] where the death sentence has only been judicially imposed once, in the trial of Adolf Eichmann. Nevertheless, senior Israeli officials have admitted that targeted killing is often used to thwart future terrorist attacks, to punish suspected terrorists, and to deter further terrorist activity. Some scholars argue that Great Britain, too, although not resorting to capital punishment of suspected terrorists through judicial channels, might have engaged in extra-judicial execution of individuals involved in activities hostile to the security of the state.
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From this legal framework, it is clear that the protection of civilians is sacrosanct and is the uncontested cornerstone of international [*881] humanitarian law. However, when faced with sophisticated terrorist organizations such as Al Qaeda, well-defined theoretical guidelines tend to
blur. We know for certain from Article 51(3) of the Additional Protocol that civilians who take part in hostilities are lawful targets. A contrary policy would entail perverse results: members of military forces could disguise themselves as civilians in order to deceive and to fulfill military objectives. Many jurisdictions have confirmed the validity of this statement, including in the case of Mohamed Ali. An interesting parallel may be drawn here between terrorists and mercenaries. It is fair to assume that both these classes of irregular combatants will usually not be afforded POW status, primarily because they do not conduct their operations in accordance with the laws of war. Even if we were to accept that these types of fighters do not raise a doubt as to their status and, correspondingly, attract less protection than regular combatants, they would nevertheless be entitled to a fair trial, along with all the guarantees found at Article 75 of the Additional Protocol.
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Conversely, one could also advocate that the provision on quarter governs the targeted killing issue, and rightly so. Although, in the past, these provisions have sometimes been understood through the lens of the first reading, I contend that targeted killing amounts to a violation of customary international law. When the United States or Israel proceeds to aerial attacks, they are effectively stripping the target of his right to claim POW status, which is in direct violation of Articles 4 and 5 of Convention III. Similarly, another legal restraint on targeted killing resides in Article 41 of the Additional Protocol, which grants immunity from attack to soldiers who are hors de combat. It follows that, when soldiers are not hors de combat, they remain lawful targets, provided the attack is carried out using weapons that discriminate between combatants and noncombatants to the extent possible. The language in this provision clearly indicates the intention of its drafters to regulate the conduct of hostilities. Even ordinary combatants who are entitled to POW status are not unconditionally lawful targets or invariably subject to attacks. This only reinforces the proposition that unprivileged combatants, who are deprived of POW status, should have the opportunity to surrender or lay down arms. Hence, a policy of targeted killing seems intractable under any circumstance, even if applied to regular combatants. There is a more than subtle distinction between situational fighting, where combatants have the opportunity to abdicate or to waive a white flag ostentatiously, and a willful plan to carry out an assassination without providing the human target the opportunity to surrender. I maintain that this distinction is authoritative.
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POLITICAL/NON-POLITICAL DISTINCTIONS CANNOT ACCOUNT FOR NONSTATE ACTORS LIKE TERRORIST ORGANIZATIONS
Knoepfler, 2010 (Stephen, JD, Dead or Alive: The Future of U.S. Assasination Policy Under a Just War Tradition, NYU Journal of Law and Liberty 5.457, p. 476-477) It may be that it doesn't really matter whether political motivation or political leadership is a necessary condition for an assassination to take place. In some ways, once an individual reaches a certain level of prominence, she qualifies as a political leader merely due to her influence. Similarly, "political motivation" could be defined narrowly or broadly. A narrow definition would focus only on the immediate gain: removing someone from political office or preventing someone from obtaining political office. A broader definition would be more policy oriented: "action which aims at effecting some modification of the practices, policies, laws, or institutions of some government or state." And in our current world, in which non-state actors play an evern91 n92 n93
increasing role, we could expand this "policy oriented" definition to include actions taken with the purpose of changing the status quo of political movements, including terrorism. But we need not go to these great lengths. The truth is, with certain prominent individuals, we don't care why that person was killed. Killers are motivated by all sorts of things: politics, religion, money, revenge, notoriety, insane fantasies. Although knowing the motivation would help us to understand why a killer targeted John F. Kennedy, Martin Luther King Jr., Robert F. Kennedy, Pope John Paul II, or Benazir Bhutto, we know immediately that these were assassinations or attempted assassinations, and knowing the motivation is not necessary in identifying or categorizing the act. Just as one could argue that any prominent individual is a political leader, or any killing of said individual is politically motivated, one could argue just the opposite. Requiring that an assassination be of a political leader or politically motivated merely invites those performing a targeted killing to distinguish or justify their actions post hoc by explaining that the person targeted, though prominent, was not a "political leader" [*477] or that the killing was motivated by something other than politics. We should avoid such ex post rationalizations if we can
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GOVERNMENT ILLEGALLY USING TARGETED KILLING FOR THEIR OWN PERSONAL AGENDA
Bovard, 2011 (James, contributor, Christian Science monitor, Assassination nation: Are there any limits on President Obama's license to kill?. 5/17/11) Unfortunately, the current assassination program is merely an extension of presidential power grabs going back into the last century. In 1998, President Clinton launched a missile strike against a Sudan pill producer after US embassies in Kenya and Tanzania were bombed. After the US government failed to offer any evidence linking its target in Sudan to the terrorist attacks, the owners of Sudans largest pharmaceutical factory sued for compensation for damage. In 2009, the US Court of Appeals for the District of Columbia Circuit decreed: President Clinton, in his capacity as commander in chief, fired missiles at a target of his choosing to pursue a military objective he had determined was in the national interest. Under the Constitution, this decision is immune from judicial review.
Fisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, Targeting Killings, Norms, and International Law, Columbia Journal of Transnational Law, (2007) P. 718-720) Those contending that targeted killing is illegal because it contravenes IHR point to Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) in support of their position. Article 6(1) states, "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." For them, using lethal force against an alleged terrorist without meeting the pre-conditions of the law enforcement model - due process, imminency, and absolute necessity - amounts to depriving the terrorist of his life arbitrarily.
and by "financier" I mean someone who knowingly gives money to support terrorism - appears to me to have too attenuated a connection to the war effort to justify directing hostility toward him. After all, how do we know whether the money the financier has provided is going to supply arms or going to feed, shelter, or clothe the terrorists? What is the difference (other than, perhaps, the justness of the cause) between a financier and a taxpayer? A financier and a person who donates to a "support the troops" campaign? A financier and a person who donated rubber in World War II? A financier and a head of state? Unlike terrorist leaders themselves, a financier of terrorism does not have the direct connection to lethality - the ability to decide where and when an attack should take place - to qualify as a combatant under just war theory. Admittedly, once one allows arms factory workers to be the legitimate targets of attack, the line between combatant and noncombatant blurs. Indeed, it is a fine line. But it must be remembered that the purpose of just war theory is to prevent wars from becoming total wars in which everyone is the moral equivalent of a soldier, where everyone is a legitimate target. The connection between financiers and the ability to injure in war is too attenuated to justify calling financiers of terrorism combatants. Therefore, they cannot be the legitimate target of assassination, even in war.
MORAL QUESTIONABILITY
MORAL QUESTIONABILITY OF TARGETED KILLINGS Waxman, Kebriaei, Byman, Clark, 2011 (Matthew C., Pardiss, Daniel L., Kate; Adjunct Senior Fellow for Law and Foreign Policy, Attorney, Center for Constitutional Rights, Professor at Georgetown University and Research Director of the Saban Center at Brookings Institution, Senior Analyst, Afghanistan Analysts Network. The Targetted Killings Debate, 6/8/11)
Should targeted killings continue? CFR's Matthew Waxman cautions against overreliance on them as a counterterrorism tool but says so far U.S. policy is within legal bounds. Constitutional lawyer Pardiss Kebriaei questions the legal basis that U.S. administrations have used to justify killing suspected terrorists off the battlefield, suggesting a violation of constitutional rights of due process. Decapitating terrorist networks is an effective strategy, says Georgetown's Daniel Byman, capable of robbing a group of charismatic leadership critical to its success. But Afghanistan expert Kate Clark argues that targeted killings often produce an organizational chaos that unleashes a more radical generation of subordinates.
This leads us to the most compelling argument against a policy of targeted killing: The lack of due process resulting from this practice. When armed forces proceed to aerial attacks without warning, they are actually curtailing due process, violating the audi alteram partem principle, preventing the target from contesting the determination that he or she is a terrorist, and imposing a unilateral death penalty. In this [*890] way, the very purpose of international human rights is defeated, whether through the violation of the right to a fair trial, the absolute circumvention of the right to liberty, or the disregard of the inherent right to life. The targeted individual is not afforded the opportunity to surrender nor to claim POW status. Unlike indefinite detention, where the suspected terrorist is temporarily deprived of personal freedom, targeted killing entails far greater consequences with absolutely no margin for judicial review, appeals, or any kind of procedural or substantive safeguards for the targeted individual. In this light, it becomes accurate, and perhaps trite, to state that targeted individuals are stuck in a legal black hole. In any given case, endorsing a policy of targeted killing essentially means that a single bullet will be prosecutor, judge, and executioner all at once. On that basis alone, the international community should categorically deplore and condemn targeted killing under international law, as it challenges fundamental notions of law and dignity.
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More importantly, such a policy impedes stability and peace-building, while placing collateral or by-standing civilians at significant risk: "Targeted killings shrink institutional repertoire by decreasing the stake of each side in peaceful means of dispute resolution. They also undermine
inclusion, because they tend to affect not only specifically intended targets, but also civilians from the same communities who happen to be in the way." As mentioned, not only do targeted killings engender collateral damage in the form of unnecessary civilian death, but they also have a deleterious effect on democratic due process, regardless of whether terrorist organizations may be targeted with military force. By assassinating a suspected terrorist, we are in fact stripping that person of all the procedural guarantees surrounding a fair trial and usually [*878] afforded any accused under domestic criminal law or human rights law. In short, we are depriving that individual of the right to a fair trial, a cognizable and irreconcilable affront to international human rights norm. The objective here is not to weigh every possible argument for and against targeted killing, nor is to resolve the debate surrounding such a policy. Rather, my analysis purports to briefly canvass the major international legal restraints on targeted killing, in order to demonstrate that, similar to indefinite detention, this practice is morally and legally unpalatable under the current scheme of international law. Furthermore, carrying out a shoot-to-kill policy when apprehension of a given suspect is reasonably feasible would clearly violate the Fourth Amendment.
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Professor Cassese suggests a test for gauging the exercise of targeted killing which can be summarized as follows: only when an individual is wearing civilian clothing and is manifestly carrying weapons or bombs may that person be targeted. To some people, it may be synonymous [*886] with absurd to target Osama bin Laden only if those conditions are met. However, I maintain that this type of reasoning leads to a series of problems in the identification of terrorists, a concern sometimes labeled as "the slippery slope" argument. "By participating in assassination, a government places itself on a slippery slope. If the assassination of one leader is acceptable, then the assassinations of other leaders are tolerated, and if assassination is not condemned, then any troublesome individual may be subject to assassination by the United States." If we open the door to this type of measure, can the executive target anyone suspected of being a terrorist or can it remove someone who constitutes a mere inconvenience? This policy is obviously conducive to countless abuses or even honest mistakes. Moreover, if there is no doubt as to whether the targeted person is a terrorist and that - in carrying out the attack, the targeting military does not injure civilians - they are still acting on the assumption that the adversary accepts their determination that the targeted individual was involved in hostilities against the targeting power. We must recall that the laws of war are based on the concept of reciprocity, regardless of whether Al Qaeda is respectful of civilian life or not. It follows that protection "of the civilian population must always be the overriding consideration.
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RETALIATION
BACKLASH FROM KILLING OSAMA BIN LADEN
Bowater, 2011, (Donna, writer for the Birmingham Evening Mail. Bin ladens death means Backlash, Birmingham Evening Mail. 5/6/11, P# 11) Mrs Munday, from Coleshill, said: "Bin Laden Enhanced Coverage Linking Bin Laden was the figurehead but there's going to be others ready to step into his shoes.
groups. Additionally, targeted killing may hurt the longer term interests of States pursuing the tactic by removing potential future negotiating partners. Further, insofar as pursuing the intelligence needed to conduct targeted killings effectively diverts resources away from gathering and analyzing more existential threats, such as threats from other States or the proliferation of weapons of mass destruction, employing targeted killing as a counter terrorism tactice may be detrimental to longer-term interests.
NAMED KILLINGS/ASSASINATIONS VIOLATE JUST WAR BECAUSE THEY ARE MOTIVATED BY VENGENCE, NOT SELF-DEFENSE
Knoepfler, 2010 (Stephen, JD, Dead or Alive: The Future of U.S. Assasination Policy Under a Just War Tradition, NYU Journal of Law and Liberty 5.457, p. 487-88) This goes to another point that will bear on the permissibility of assassination in the context of war. Steven R. David argues that Israel's policy of "targeted killing" n149 is not based on deterrence or preventing terrorist attacks from occurring, but is instead based on principles of vengeance, punishment, and retribution. n150 Other authors agree. n151 However, David goes further, arguing that these rationales of punishment and vengeance and retribution justify the "targeted killings" under various principles of just war theory. n152 This is not true. n153 Under just war theory, "the purpose of a state's employment of force ... must always be preventive rather than punitive. The intention of the force employed is to halt or prevent future aggression directed against the state, not as a form of retaliation or retribution for past attacks." n154 This makes sense, given the rationale behind the permissibility of killing combatants in war. A [*488] combatant is justified in killing an enemy combatant based on the enemy combatant's reciprocal right and/or ability to use hostility. This is future-looking; it is saying, "Because you can kill me, I am allowed to kill you first." n155 It is not saying "you have acted wrongly, and you deserve to die." Certainly, past behavior is not irrelevant, as it can help to determine who is a combatant in the first place and "prior offenses serve to a large extent as an indication of future intentions." n156 But what makes a combatant "guilty" in the context of war is not his past behavior, but his capacity to injure others in the future. n157 Thus, under a just war tradition, any use of assassination must be directed at the target's future lethality, not his or her past wrongs.
TERRORISM
ACTS OF TERROR WERE CONSIDERED AS INDIVIDUAL CRIMES, NOT AN ACT OF WAR, DURING THE CLINTON ADMINISTRATION AND THEY WERE TREATED AS SUCH
Machon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, Targeted Killing as an Element of US Foreign Policy in the War on Terror. Monogram. (May 25, 2006) p. 6-7) Despite widespread recognition of terrorism as a form of warfare, the United States and the international community, Israel excepted, had largely chosen, prior to 9/11, to regard terrorist acts as individual crimes.19 This practice continued through the Clinton administration despite the 1998 declaration of the World Islamic Front; within which bin Laden and his al-Qaeda associates clearly state that: to kill the American and their allies civilian and military is an individual duty incumbent upon every Muslim who can do it in any country in which it is possible to do it. Despite this formal declaration of war upon the United States and alleged al-Qaeda complicity in the terrorist bombings of the Tanzanian and Kenyan embassies in 1998, in addition to the USS Cole bombing in 1999, US policy was to treat terrorism as a legal matter to depoliticize and delegitimize it by defining it as criminal activity instead of warfare. Resorting to indictments, extraditions, and trials, it was argued, was the best course.
THE USE OF TARGETED KILLING AS A COUNTER-TERRORISM ACT HAS BEEN CONSIDERED ILLEGAL THUS FAR
Fisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, Targeting Killings, Norms, and International Law, Columbia Journal of Transnational Law, (2007) P. 717-718) Amnesty International, n31 the U.N. Commission on Human Rights, n32 the U.N. Secretary General, n33 the U.N. General Assembly, n34 and several legal scholars n35 contend that the use of targeted killing as a counter-terrorism tactic, whether by the United States or Israel, should be assessed under IHR and that targeted killing actions conducted thus far have been illegal according to such an assessment.
mighty upsurges and long dormancy that distracts the attention of law enforcement and financial intelligence agencies from them
Conversely, some commentators assert that we must uphold the existing scheme of jus ad bellum, while placing particular emphasis on the fact that the Bush Doctrine is subverting the "immediacy of the threat posed" element under use of force law. These human rights proponents expound that a policy of targeted killing will not shake the foundations of terrorism but rather will only attract retaliation, thereby [*877] widening the gap between Arab and Western societies and confirming that Islam is being singled out, scrutinized, and targeted. Fiercer voices vehemently condemn the practice of targeted killing under international law - with some emphasis on foreign policy and diplomatic considerations - regardles s of the circumstances. The most attractive argument against a policy of targeted killing relies predominantly upon due process concerns and procedural safeguards. In addition, not only is targeted killing incompatible with due process, but it also eludes the traditional war paradigm, while being inconsonant with the United States' obligations toward Iraqi and Afghani nationals on their respective territories.
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Such is not the case with a policy of targeted killing: once the executive action is carried out, the individual is removed with no chance to appeal his situation or to contest the legality of the unilateral decision. Surely, the case for targeted killing of suspected terrorists becomes attractive when one considers that terrorists themselves do not distinguish between civilians and military targets in perpetrating attacks. In such cases, the parameters of the Caroline doctrine may appear to be fulfilled and a reprisal may be justified, at least on a prima facie basis. [*893] Although few people will convincingly advocate that the perpetrators of 9/11 deserved to perish, it is probably
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fair to assume that even fewer would mourn the passing of Osama bin Laden. However, there is a distinct possibility that a policy of targeted killing might engender the adverse effect of hoisting a targeted terrorist to the rank of martyr. If such eventuality was to materialize, namely if an influential terrorist or insurgent leader was removed, anti-West sentiment might increase and renewed support for the terrorist's agenda might ultimately transform that individual's quest into a crusade. As a result, the rationales of prevention and deterrence underlying the targeted killing of such individual would be defeated from the outset. Furthermore, eliminating some of Al Qaeda's senior leadership would only temporarily displace the problem: there are several other groups willing to commit widespread acts of murder. Therefore, the objective should not be to kill terrorists but rather to reorganize society so as to understand and prevent acts of terrorism
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