JD: Week 8 Discussion 1

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Targeted Killing in U.S. Counterterrorism Strategy and

A Working Paper of the Series on Counterterrorism and American Statutory , a joint
project of the Brookings Institution, the Georgetown University Center, and the

Hoover Institution

Kenneth Anderson*

May 11, 2009

* Professor of , Washington College of , American University, and Research Fellow, The Hoover
Institution, Stanford University and Member of its Task Force on National Security and the . Thanks to
members of the Hoover Task Force who offered comments on an early presentation of this material; they
are not responsible for any views expressed here. Thanks also to my research assistants at Washington
College of , Can Celik, Neil Pandey-Jorrin, David Wiseman, and Scott Yoo. 

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Introduction
It is a slight exaggeration to say that Barack Obama is the first president in American
history to have run in part on a political platform of targeted killings—but not much of
one. During the campaign, he openly sought to one-up the Republican nominee, Sen.
John McCain, in his enthusiasm for the use of targeted strikes in Pakistan against al
Qaeda figures. “You know,” he said in his speech at the Democratic National
Convention, “John McCain likes to say that he’ll follow [Osama] Bin Laden to the Gates
of Hell, but he won’t even go to the cave where he lives.”1 That he would, as president,
follow bin Laden to his cave, with or without the cooperation of the Pakistani
government, he made perfectly clear. “If we have actionable intelligence about high-
value terrorist targets and President [Pervez] Musharraf won’t act, we will,” he said in
another speech.2 Indeed, while he criticized President Bush for being too aggressive in
many aspects of counterterrorism, with respect to targeted killings, his criticism was the
polar opposite: “The Bush administration has not acted aggressively enough to go after al
Qaeda’s leadership,” he said. “I would be clear that if Pakistan cannot or will not take out
al Qaeda leadership when we have actionable intelligence about their whereabouts, we
will act to protect the American people. There can be no safe haven for al Qaeda
terrorists who killed thousands of Americans and threaten our homeland today.”3

Obama did not take long, on assuming office, to begin keeping his promise. On January
23, 2009 a mere three days into his presidency, strikes by Predator drones in the tribal
areas of Pakistan destroyed two compounds and killed numerous people, reportedly
including a high-value target.4 Strikes continued, even expanded, over the successive
months, and administration officials made clear that they had no plans to curtail them—
even as they reined in coercive interrogations and announced the closure of Guantánamo
Bay.5

Obama was right as a candidate and is correct as president to insist on the propriety of
targeted killings—that is, the targeting of a specific individual to be killed, increasingly
often by means of high technology, remote-controlled Predator drone aircraft wielding
missiles from a stand-off position. The strategic logic that presses toward targeted stand-
off killing as a necessary, available and technologically advancing part of
counterterrorism is overpowering. So too is the moral and humanitarian logic behind its
use. Just as crucial programs of Predator-centered targeted killing are underway now in
Afghanistan and, with increasing international controversy, Pakistan, over the long term
these programs of stand-off targeted killing will be an essential element in United States
counterterrorism into the future—and with targets having little or nothing to do with
today’s iteration of the war on terror.6 Future administrations, even if they naturally
prefer to couch the matter in softer terms, will likely follow the same path. Even if the
whole notion seems to some disturbingly close to arbitrary killing, not open combat, it is
often the most expedient—and, despite civilian casualties that do occur, most
discriminatingly humanitarian—manner to neutralize a terrorist without unduly
jeopardizing either civilians or American forces.

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But there’s a paradox in Obama’s embrace of targeted killing: Even as the strategic and
humanitarian logic for it increases in persuasiveness, the legal space for it and the legal
rationales on which it has been traditionally justified are in danger of shrinking. They are
at risk of shrinking in ways that might surprise members of Congress and the Obama
Administration. And they are at risk of shrinking through seemingly innocuous, unrelated
legal policy actions that the Obama Administration and Congress might be inclined to
take in support of various political constituencies, usually related to broadly admirable
goals of human rights and international law.

American domestic law—the law codifying the existence of the CIA and defining its
functions—has long accepted implicitly at least some uses of force, including targeted
killing, as self-defense toward ends of vital national security that do not necessarily fall
within the strict terms of armed conflict in the sense meant by the Geneva Conventions
and other international treaties on the conduct of armed conflict. Categories of the use of
force short of armed conflict or war in a juridical sense—by intelligence services such as
the CIA, for example—or by military agents in furtherance of national self defense and
vital security interests, yet outside of the legal condition of armed conflict, date back in
codified law to the founding of the CIA and, in state practice by the United States and
other sovereigns, far further still. Yet as a matter of legal justification, successive
administrations have already begun to cede this ground. Even the Bush Administration,
with its unrivaled enthusiasm for executive power, always sought to cast its killing targets
as the killing of combatants in what it legally characterized as armed conflicts, governed
by the laws of war on the conduct of hostilities, known as “international humanitarian
law” (IHL). This concession, however, if followed by the Obama Administration and
beyond, will likely reduce the practical utility of a policy and security tool of both long-
standing provenance and proven current value. It will likely reduce the flexibility of the
United States to respond to emerging threats before they ripen into yet another war with
non-state terrorists, and it will reduce the ability of the United Sates to address terrorist
threats in the most discriminating fashion advancing technology permits.

At this moment in which many policymakers, members of Congress and serious
observers see primarily a need to roll back policies and assertions of authority made by
the Bush Administration, any call for the Obama Administration and Congress to insist
upon powers of unilateral targeted killing and to claim a zone of authority outside of
armed conflict governed by IHL that even the Bush Administration did not claim must
seem at once atavistic, eccentric, myopic and perverse. Many will not much care that
such legal authority already exists in international and U.S. domestic law. Yet the
purpose of this chapter is to suggest that, on the contrary, the uses to which the Obama
Administration seeks to put targeted killing are proper, but they will require that it
carefully preserve and defend legal authorities it should not be taking for granted and that
its predecessors, including the Bush Administration, have not adequately preserved for
their present day uses.

People who threaten serious harm to the United States will not always be al Qaeda, after
all. Nor will they forever be those persons who, in the words of the Authorization for the
Use of Military Force (AUMF), “planned, authorized, committed or aided” the attacks of

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September 11.7 As I will explain, it would have been better had the Bush and Clinton
Administrations, for their parts, formulated their legal justifications for the targeted uses
of force around the legal powers traditionally asserted by the United States: the right of
self-defense, including the right to use force even in circumstances not rising to the level
of an “armed conflict” in order to have firmly fixed in place the clear legal ability of the
United States to respond as it traditionally has. Although the United States still has a long
way to go to dismember al Qaeda, its affiliates and subsidiaries, although Osama bin
Laden and key al Qaeda terrorist leaders remain at large, and although the President of
the United States still exercises sweeping powers both inherent and granted by Congress
to use all national power against the perpetrators of September 11, time moves on. New
threats will emerge, some of them from states and others from non-state actors, including
terrorist organizations. Some of those new threats will be new forms of jihadist terrorism;
others will champion new and different causes. Even now, Islamist terror appears to be
fragmenting into loose networks of shared ideology and aspiration rather than tightly
vertical organizations linked by command and control.8 It will take successive feats of
intellectual jujitsu to cast all of the targets such developments will reasonably put in the
cross hairs as, legally speaking, combatants.

Yet the problem is still deeper and more immediate than that, for the accepted space for
targeted killings is eroding even within what a reasonable American might understand as
the four corners of our conflict with al Qaeda. In many situations in which any American
president, Obama certainly included, would want to use a targeted killing, it is unclear to
some important actors—at the United Nations, among our allies, among international law
scholars, and among NGO activists—as a matter of international law that a state of armed
conflict actually exists or that a targeted killing can qualify as an act of self-defense. The
legal situation, therefore, threatens to become one in which, on the one hand, targeted
killing outside of a juridical armed conflict is legally impermissible and, on the other
hand, as a practical matter, no targeted killing even within the context of a “war” with al
Qaeda is legally permissible, either.

Congress’s role in this area is admittedly a peculiar one. It is mostly—though not
entirely—politically defensive in nature. After all, the domestic legal authorities to
conduct targeted killings and other “intelligence” uses of force have existed in statutory
form at least since the legislation that established the Central Intelligence Agency in 1947
and in other forms long pre-dating that.9 The problem is that although domestic legal
authority exists for the use of force against terrorists abroad, currents are stirring in
international law and elsewhere that move to undermine that authority. Powerful trend
and opinion-setting—so-called “soft law”—currents are developing in ways that, over
time, promise to make the exercise of this activity ever more difficult and to create a
presumption, difficult to overcome, that targeted killing is in fact both illegitimate and,
indeed, per se illegal except in the narrowest of war-like conditions. The role of Congress
is therefore to reassert, reaffirm, and reinvigorate the category as a matter of domestic
law and policy, and as the considered, official view of the United States as a matter of
international law.

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The Strategic and Moral Logic of Targeted Killings
American counterterrorism is a hybrid employing distinct palettes of legal tools. One is
criminal law enforcement; another is armed conflict.10 Americans have been arguing
about these two palettes—their relative uses, merits, and limitations—nonstop since
September 11. Each occupies important ground in the legal and policy regulation of uses
of force and violence in counterterrorism. As a matter of long-term counterterrorism
strategy, each will continue to play an important role. Moreover, despite many now-
familiar arguments, sometimes ferocious, over such issues as Guantánamo, habeas
corpus, civilian versus military criminal trials, detention, rendition, and interrogation,
each of these fields—law enforcement and armed conflict—have well established legal
and policy protocols.

Criminal law is not about killing people as such; it is, rather, about arresting, literally
stopping their activities and punishing them for ones that violate the law. Resisting arrest
can lead to deadly violence, but the paradigm of law enforcement is one that
fundamentally takes place within an ordered domestic society in which the governmental
use of deadly force is incidental to the attempt to arrest alleged criminals. That is, its
virtue is that it takes place in a settled, ordered society with a legitimate government.
That also represents its limitation in dealing with terrorists, who are at once enemies of
that society and criminals in their methods and often shelter beyond the reach of its
institutions.11

Armed conflict accepts a willingness to kill people in the pursuit of political ends, and
those killings are not limited merely to killings incident to attempted arrest. Its virtue is
that it is addressed to enemies who come from outside a settled society, but its limitation
is that its uses of force are not underwritten with the legitimacy of a state in an ordered
society. Policing and war-making are two radically different deployments of violence by
the state, the former the exercise of a legitimate near-monopoly on violence and the latter
the exercise of the level of violence dictated by military necessity so as to create a
monopoly on violence.12 Yet core standards are reasonably clear for both criminal law
and war law. To the extent that we debate these core standards, we normally do so on
account of their uncertain application to an activity—terrorism by transnational non-state
actors—that lies at the margins, rather than the core, of each.

Even pre-dating the September 11 era,13 however, counterterrorism as practice, law, and
policy has also consisted of activities that do not fall neatly under either of these two
existing legal regimes.14 Their broadest policy description is “intelligence,” but that term
encompasses an extraordinarily heterogeneous set of activities. These include classical
intelligence gathering functions, such as surveillance—including telecommunications and
Internet surveillance, human intelligence, satellite and observation intelligence, and
analysis of material collected by whatever other means. They also include intelligence
community, law enforcement, military, and diplomatic coordination and exchange of
information with friends and allies abroad. They include—of ever-increasing
importance—the interdiction of terrorist finances and the investigation, seizure, and
freezing of economic assets essential to terrorist organizations. In this discussion, I

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loosely refer to all these activities as a “third” aspect of counterterrorism, a “third way of
counterterrorism,” or as “intelligence” activities in counterterrorism, despite their
heterogeneity.15 And this third aspect of counterterrorism also includes the traditional
intelligence function of the covert uses of force.16

Within the wide range of intelligence functions, one naturally stands out as especially
controversial: the use of, or the threat to use, deadly force. For while intelligence
activities raise many thorny issues of domestic and international law, particularly when
conducted on foreign territory and in violation of local law and sovereignty, none is so
difficult as those which involve killing people.

Call it a “war on terror,” however, call it something else, it does not really matter.17 A
full response to terrorism, to al Qaeda and beyond, requires actions across all three of
these areas: criminal law, armed conflict, and “intelligence” functions, including covert
deadly force and targeted killing. The Obama Administration and the administrations that
follow it will rely increasingly on intelligence-based uses of force in counterterrorism
undertaken outside the United States. However the activity is characterized as a legal
matter or as a public relations label or policy euphemism, U.S. administrations will rely
upon targeted killing as a means of dealing with suspected terrorists—with al Qaeda, its
successors, imitators and emulators, and with those who come after it, whether they share
similar or dissimilar ideological causes, and whether or not Congress has passed a
successor to the Authorization for the Use of Military Force.18 The Predator and Hellfire
missile were identified early on by candidate Obama as the weapons of the future, as the
U.S. gradually seeks to ratchet down its full-on, overt wars.19 And the Obama
Administration is not wrong to see the strategic advantages of the Predator, now and into
the future.

This view is deeply embedded within the mainstream of President Obama’s party. To cite
only one example, note how unambiguously Democratic international relations and
intelligence eminence grises Graham Allison and John Deutch endorsed the Predator
policy with regards to Pakistan:

The counterterrorism strategy [of Predator strikes] in Pakistan that has emerged
since last summer offers our best hope for regional stability and success in dealing
a decisive blow against al Qaeda and what Vice President Joe Biden calls
“incorrigible” Taliban adherents. But implementing these operations requires light
U.S. footprints backed by drones and other technology that allows missile attacks
on identified targets [emphasis added].20

In response to the increasingly heard claim that the drone-and-missile targeted killing
strategy backfires by inflaming Pakistani public opinion against the United States
because of collateral civilian deaths—most recently, for example, from Australian
counters=insurgency expert David Kilcullen, who urged Congress in testimony to “call
off the drones”21—Allison and Deutch offer a remarkably realpolitik answer. If “many
Pakistanis see covert actions carried out inside their country as America ‘invading an
ally,’” the problem is not the drone campaign, they write; it is, rather, merely that “the
U.S. government no longer seems capable of conducting covert operations without
having them reported in the press [emphasis added].”22

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There is a fundamental strategic and moral rationale lying behind both the policy trend
toward targeted killing and toward the use of robotic and stand-off platforms such as the
Predator drone as the preferred means of effectuating it. The United States has found the
limits of how extensively it can wage full-scale wars with its military; even if it wanted to
take on more wars, it has logistical and political limits. In addition, the United States has
discovered that full-on war is useful principally against regimes. Full-scale, large-scale
warfare of the kind waged in Afghanistan and Iraq is useful primarily for bringing down
a government that, for example, might harbor or support terrorists, or which might be
believed to be willing to supply terrorists with materials for weapons of mass destruction.
While this tool has a crucial strategic place in national counterterrorism policy, by its
nature, its role is about states and state-like groups. Large-scale military operations are
less useful directly against transnational terrorists, who are few in number, dispersed
across populations and often borders, disinclined to fight direct battles, and more
efficiently targeted through narrower means. The fundamental role of overt warfare in
counterterrorism is to eliminate the regimes that provide safe haven to terrorist groups;
terrorist groups themselves can be strategically understood as an extreme version of a
guerrilla organization engaged in a strategy of logistical raiding—in which civilian
morale and the resulting manipulation of political will is the logistical target.23 Logistical
raiders typically need a safe base to which to retreat, and full-scale war is most useful in
eliminating such safe bases and convincing other regimes not to provide them.24 But it is
not usually an efficient way of going directly after the transnational terrorist groups
themselves.25

enforcement utilized outside the United States, on the other hand, has also
discovered its outer limits. Many debates are still to be had over the rights of alleged
terrorists once in U.S. custody. But whatever they are, few would argue that going out to
“arrest” terrorists in, for example, Pakistan’s tribal zones is a winning policy or a serious
option. The same is true in Somalia and other places, and it will be true in other places in
the world in the future.

Moreover, the political costs for any U.S. administration in taking and holding detainees
are now enormous.26 Once you hold them, over time, they will likely be accorded quasi-
Constitutional protections by the courts in some matters, and they will receive at least
some version of habeas corpus. Politically, the most powerful institutional incentive
today is to kill rather than capture them. The intelligence losses of killing people, rather
than capturing and interrogating them, are great.27 But since the U.S. political and legal
situation has made aggressive interrogation a questionable activity anyway, there is less
reason to seek to capture rather than kill. And if one intends to kill, the incentive is to do
so from a standoff position, because it removes potentially messy questions of surrender.

All of this speaks to the advantages to the U.S. government of targeted killing of
terrorists or persons seriously believed to be terrorists; it also speaks to the advantages to
the government of using stand-off robotics technology to perform these attacks. But the
humanitarian advantages of targeted killing are enormously important as well and ought
to be on the table. This is particularly so given that targeted killing has come in for a

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barrage of criticism, legal and ethical, much of which seems perversely motivated by the
fact that it can be more discriminate than full-scale military assault.28 The fear seems to
be that targeted killing using Predators and other robotics systems “lower[s] the threshold
for violence.”29 It makes violence too easy to undertake.30

The same criticism is offered of evolving robotic technology that increasingly allows
targeted uses of force without having to risk one’s own personnel. Not using one’s own
personnel allows a party to attack without the fear of counterassault that might increase
the need to use greater amounts of force and cause greater collateral damage—but it also,
so it is sometimes argued, thereby reduces the inhibitions on the decision to use force.31
Military technology theorist P.W. Singer, for example, says of robotic unmanned
weapons systems: “When faced with a dispute or crisis, policymakers have typically
regarded the use of force as the ‘option of last resort.’ Unmanned systems might now
help that option move up the list, with each upward step making war more likely.”32

Whatever the critics say, however, is unlikely to sway U.S. strategic policy under the
Obama Administration or anyone else subsequently.33 The humanitarian benefits of
precision targeting are far more obvious than the more remote and abstract suppositions
of their humanitarian costs. Their direct policy consequence is to introduce greater
discrimination in targeting than full-scale military assault and large-scale war permit.
Advancing technology allows for more discrete surveillance and, therefore, more precise
targeting that is better able to minimize collateral civilian damage. This is a good thing
for those who do not want to kill innocent civilians. Indeed, humanitarians long called
upon advanced militaries to shift from designing more destructive weapons systems to
designing more discriminating ones; weapons designers have been seeking to comply
over decades, and there is something perverse about now criticizing their evolving efforts
as making war so much less destructive and so discriminating as to be too easy to
undertake.

The result is a strategic and moral incentive for targeted killing and for increasing the
quality of technology to make targeted killings both more precision-targeted and more
standoff. Precision targeting and standoff delivery are each independently desirable and,
in combination, considerably increase this incentive.

None of this alters the equally impeccable strategic logic underlying the use of law
enforcement mechanisms in some circumstances. Nor does it alter the logic behind other
forms of intelligence activities, such as surveillance or financial interdiction, or even the
use of open, full-on war.34 We can by no means rule out the toppling of a regime in
pursuit of counterterrorism during the next ten or twelve years. But these are not
disjunctive policies. Targeted killing is likely to increase as a policy preference as full-
scale wars decrease in number and intensity and become less desirable as a means of
effectuating counterterrorist objectives. Bush’s Iraq adventure has surely reduced the
American appetite for invading the tribal regions of Pakistan, for example, and something
has to fill the gap. That need is partly what has augmented the Predator’s appeal,
especially to the Obama Administration. No doubt there will be political pushback—
claims that the effect of the Predator campaigns in Pakistan are backfiring by mobilizing

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Pakistani anger at civilian casualties, for example. But given the political unreliability
and military ineffectiveness of the Pakistani army and its preference for artillery barrages
over focused counterinsurgency, these arguments are not likely to persuade.

The United States has long accepted a legal, political, and policy space for the use of
force that does not take place in the course of judicially supervised law enforcement
operations but also takes place outside of the context of large-scale, open armed conflict
meeting the treaty definitions, or rising to a sufficient level of violence, so as to be
governed by IHL. This was a space of activity accepted and considered vital to self-
defense and national security throughout the long decades of the Cold War. Only in
certain narrow times and places, after all, was the conflict with the Soviet Union and its
allies a “hot” war, characterized by open and large-scale armed conflict, the sort of
clashing of armies formally governed by IHL.35 Political violence during the Cold War
was often covert, often denied, but it was authorized and endorsed by American domestic
law, dating back at least to the statutes founding the CIA in 1947. That was so even
though the activity in question frequently violated the law and sovereignty of states in
which it took place and unsurprisingly was sometimes, too, a source of grave diplomatic
and other friction. Following the revelation of abuses by the CIA in the 1970s, U.S.
domestic law was tightened, “assassination” prohibited by President Ford’s 1976
Executive Order, and Congressional oversight mechanisms strengthened. But, as
discussed below, far from eliminating this category of violence by limiting such uses of
force solely to “armed conflict” in the meaning governed by IHL, U.S. domestic law
quietly and intentionally preserved the category while strengthening the oversight.

This category of force is now an obvious means by which to confront non-state
transnational terrorists outside the territorial United States. The United States is no longer
in the Cold War. But the legal and political regimes that it (and other states, both friend
and foe) elaborated through state practice, allowing uses of covert and discrete force as a
matter of self-defense, are, if anything, more relevant in confronting transnational
terrorism today. Yet as matters now stand, great pressures will come to bear against the
very existence of this legal and political category—great precisely because they are
idealistic and morally well-intended. Should these pressures prevail, they will bind the
hands of the President and Congress so as to prevent them from taking what is
paradoxically the most discrete and most precisely-targeted lethal measures available
against terrorists. The result would be to throw the United States into the much more
difficult policy dilemma of using larger-scale military activity against terrorists …