Opinion

Alan M. Dershowitz | Part 4

Targeted killings and the rule of law

Tactic is here to stay; legal system needs to catch up with military technology

edel rodriguez for the boston globe

Alan M. Dershowitz addresses the trade-offs between civil liberties and national security

President OBAMA recently announced that the United States had targeted and killed Ahmed Abdi Godane, the leader of an Al Qaeda-linked group of terrorists in Somalia, and that it is now targeting ISIS leaders for assassination. We have, of course, targeted several alleged terrorists in the past, including at least one US citizen.

Although our government’s official position is that we would prefer to capture and detain wanted terrorists, rather than kill them, the way the Navy SEAL team went after Osama bin Laden strongly suggests we preferred him dead rather than alive. But his killing may have been an exception — because of his high visibility — to the salutary general rule that it is better to capture than to kill, if for no other reason than that a live detainee is a potential source of valuable intelligence.

But what should a democracy, constrained by the rule of law, do if a dangerous terrorist cannot be captured, or can only be captured with undue risk to our soldiers? There are two basic options: Allow him to continue with his terrorist actions and plans, or use our extraordinary technology to target and kill him, while trying to minimize “collateral damage” (a rather antiseptic way of describing the inadvertent killing or maiming of innocent bystanders).

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Most democracies — including the United States, the United Kingdom, and Israel — have opted for targeted killing. This is nothing new, except that the technology — particularly the use of drones with GPS-guided missiles — has made it easier and more accurate. In the old days, we assassinated enemy leaders by poison and other face-to-face measures, or we carpet-bombed areas in which they were believed to be. Today we can “target” our terrorist enemies with greater precision.

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The decision to employ this tactic has generated considerable controversy, most particularly when the target is an American citizen who has joined a terrorist group. But it is also controversial when the target has no connection to our country, other than his hatred of it and his intention to do us harm. The Obama administration’s efforts to provide a legal justification for this practice has proved less than convincing to many.

Several objections have been raised against targeted killing, or as has sometimes been called “targeted assassination.” The first is that it is a form of “extrajudicial execution,” carried out without due process. The government is judge, jury, and executioner — and there is no appeal.

This argument is a red herring, however, since all military killings are by their nature extrajudicial. Indeed, it is judicial executions that I, and many other civil libertarians, strongly oppose, precisely because there is the alternative of lengthy, even life imprisonment. The person to be judicially executed is, by definition, already in captivity and no longer a direct danger. With regard to targeted killings, there is generally no viable option other than allowing the terrorist to continue killing. Targeted killings of terrorists are more akin to the killing of a dangerous felon who is fleeing from arrest or to killing in self-defense, both of which are extrajudicial but entirely lawful.

The relevant question to be asked of targeted killings is not whether they are extrajudicial, but whether they are lawful and moral. To answer that difficult question a number of factors must be considered, including the evidence that the targeted suspect is in fact a terrorist involved in ongoing operations, the imminence and likelihood that these terrorist operations will succeed, the availability of less lethal alternatives, and the possibility that others will be killed or injured in the targeted attack. (In other words, how well targeted will the attack be?)

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The American Civil Liberties Union has proposed what is, in effect, a “targeted killing warrant,” which it argues should be required before anyone can be targeted for death. Such a warrant would have to disclose the evidentiary basis for the required conclusions that the targeted person is, in fact, a dangerous terrorist, that he cannot be apprehended, and that his killing will not result in the deaths of innocent people. It will not always be possible, of course, to secure such a warrant in advance of every targeted killing, especially if the target is suddenly located in an area where he can be attacked with little collateral damage, and is likely to soon move away from that area. In such exigent circumstances, the warrant can be sought after the fact, so that there would be at least some visibility and accountability. Not a perfect solution, but better than the current ad hoc approach, which has little visibility or accountability.

As a report issued by a group under the direction of Philip Heymann of Harvard Law School recognized: “. . . targeted killings against known terrorists have become a real and accepted option within the United States as the only reasonably effective way of reaching a hostile target.”

Targeted killing of terrorists is here to stay. Indeed, it is likely to increase in frequency as we fight ISIS and other shadowy terrorist groups. We will not and should not give up the technological advantage accorded us by drones with GPS-guided missiles. It is imperative, therefore, that this important but controversial tactic be cabined by the rule of law. At the moment, our legal system is playing catchup with military technology, as it often does. We must accelerate the process of striking the appropriate balance between defending ourselves against terrorism by preemptive drone strikes and maintaining our commitment to legal norms.

Alan M. Dershowitz addresses the trade-offs between civil liberties and national security

Alan M. Dershowitz is an emeritus professor of law at Harvard University. His newest e-book, “Terror Tunnels: The Case For Israel’s Just War Against Hamas,’’ has just been published.