Drone strikes: What the U.S. could learn from Israel [Blowback]
Amos N. Guiora, a law professor at the University of Utah and author of a forthcoming book on targeted killings (Oxford University Press, 2013), responds to The Times' Sept. 25 editorial, "A closer look at drones." If you would like to write a full-length response to a recent Times article, editorial or Op-Ed, here are our FAQs and submission policy.
The Times raises profoundly important questions regarding the drone policy initially implemented by President Bush and significantly increased by President Obama. The editorial, while not condemning U.S. drone policy, suggests that moral and legal questions must be addressed, particularly regarding "the process by which the military and the CIA determine who belongs on a target list."
The U.S. could learn a lot from Israel's policy on targeted killings. I know -- I was involved in its implementation.
I support using drones to eliminate terrorists, but I believe their legality and morality depend on the development and implementation of a criteria-based decision-making model. The Israel Defense Forces take such an approach to targeted killings, going to great lengths to gather and verify intelligence to ensure that potential targets are, in fact, still actively involved in terrorism. As has been documented extensively, excessive collateral damage both violates international law and provides effective recruiting posters for terrorist organizations.
In any targeted killing decision, three important questions must be answered: First, can the target be identified accurately and reliably? Second, does the threat the target poses justify an attack at that moment or are there alternatives? And finally, what is the extent of the anticipated collateral damage?
To answer these questions using the criteria-based process, extensive intelligence must be gathered and thoroughly analyzed. The intelligence community receives information from three different sources: human (such as individuals who live in the community about which they are providing information to an intelligence officer), signal intelligence (such as intercepted phone and email conversations) and open sources (the Internet and newspapers, for example).
One of the most important questions in putting together an operational "jigsaw puzzle" is whether the received information is "actionable;" that is, does the information warrant a response? This question is central to the criteria-based method, or at least to a process that seeks -- in real time -- to create objective standards for making decisions based on imperfect information (as almost all intelligence is). It is essential that intelligence information, particularly from humans, be subjected to rigorous analysis.
The first step in creating an effective counterterrorism operation is analyzing the threat, including the nature of the threat, who poses it and when it is likely to be carried out. It is crucial to assess the imminence of any threat, which significantly impacts the operational and legal choices made in response.
To ensure both the legality and morality of drone strikes, I propose the following standards:
1) A target must have made significant steps directly contributing to a planned act of terrorism.
2) An individual cannot be a legitimate target unless intelligence action indicates involvement in future acts of terrorism.
3) Before a hit is authorized, it must be determined that the individual is still involved and has not proactively disassociated from the original plan.
4) The individual’s contribution to the planned attack must extend beyond mere passive support.
5) Every effort must be made to minimize collateral damage. However, the willful endangerment by the non-state actor of its own civilian population need not be a deterrent from implementing an authorized act of preventative self-defense.
6) Verbal threats alone are insufficient to categorize an individual as a legitimate target.
The Obama administration's articulation that mere "likelihood" of membership in a terrorist organization justifies defining a target as legitimate is highly problematic in the context of criteria-based decision-making. A criteria-based model facilitates necessary redirection away from the Obama administration's targeting of suspects who are only "likely" to be engaged in terrorist activity. "Likelihood," after all, casts an unacceptably wide net; the criteria-based process above narrowly and specifically defines a legitimate target.
Deciding to authorize a legitimate drone strike depends on a process that analyzes the nature, identity and imminence of the threat. Trying to make a targeting decision in the absence of narrow criteria and specific guidelines highlights the concerns The Times’ editorial correctly raised.
Addressing these issues will significantly contribute to operational counterterrorism firmly rooted in legality and morality.
-- Amos N. Guiora
Photo: A protester in Karachi gestures during a rally last June against drone attacks within Pakistan. Credit: Athar Hussain / Reuters