Excerpt From My Targeted Killing Paper: The U.S. and Israel

America and Targeted Killing

The two faces of targeted killing are the United States and Israel. Other countries partake in targeted killing, but it is these countries whose utilization of targeted killing is likely to make the news. The use of targeted killings dates back many decades, but for purposes of our inquiry here, the areas of concern are those targeted following the attacks on September 11. The issue of targeted killing can be traced back to the Church Committee’s criticism of the covert assassination program during the Cold War, which brought President Gerald Ford to promulgate an executive order banning assassinations, a prohibition that was later incorporated into Executive Order 12333 (1981) signed by President Ronald Reagan, which remains in effect today.

The first targeted killing post 9/11 is believed to be attributed to Qaed Salim Sinan al-Harethi, who was killed in November 2002, when a Predator Drone fired a missile into a car he was in. Al-Harethi was a suspect in the bombing of the USS Cole, and the attack was executed with the approval of the Yemeni government, removing some concerns regarding its legality. The U.S. has since used its targeted killing program in a number of countries, but the program can be split into two. One targeted killing program exists in Iraq and Afghanistan, both of which were recognized as war zones, and thus an “extension of conventional warfare.” It is the second program, operated by the CIA, which is the object of controversy, and for many around the world, profound ire.

Under domestic law, the AUMF allows the President to “use all necessary and appropriate force” against those who “planned, authorized, committed, or aided” the 9/11 attacks or “harbored” the attackers. But domestic law, except for the cases of American citizens, is not really an issue in regards to the CIA program. The issue is with international law. (editor's note: the AUMF is presumably supposed to apply to Al-Qaeda and its affiliates, and is supposedly in relation to the attacks on 9/11, but it has been decided (unconscionably) that it now applies to ISIS. ISIS had no relationship to 9/11 and specifically broke off from Al-Qaeda.)

A targeted killing conducted by one state in the territory of a second does not violate the latter's sovereignty if either the second state consents, or the first, targeting, state has a right under international law to use force in self-defense under Article 51 of the UN Charter, because the second state is responsible for an armed attack against the first state, or the second state is unwilling or unable to stop armed attacks against the first state launched from its territory. International law permits the use of lethal force in self-defense in response to an “armed attack” as long as that force is necessary and proportionate.

President Obama laid out the guidelines for the use of targeted killing in 2013. The requirements include having a legal basis to use force and that the target pose a continuing, imminent threat to U.S. persons. Once the decision to strike is made another set of determinations must be made, which include near certainty that the terrorist target is present; near certainty that non-combatants will not be injured or killed; an assessment that capture is not feasible at the time of the operation; an assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and an assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons. There is also a requirement of abiding by international legal principles, including respect for sovereignty and the law of armed conflict.

The ACLU has argued that the AUMF only allows strikes in war zones or battlefields, suggesting that even the border regions with Pakistan would not qualify. Their position is directly contrary to the Obama administration and others, and the assertion seems misplaced. There is no geographic limitation explicitly stated in the AUMF. If you were to use the logic employed by the ACLU, the strike on Osama bin-Laden would exceed President Obama’s authority.

In a paper, concerning the legality of targeting Anwar Al-Awlawki, Robert Chesney suggests that treaty language does not impose geographic restrictions and that a strict, formalistic approach to geographical scope would encourage parties to spread their forces outside the armed conflict zone, destabilizing peaceful states. Certainly, this does not mean that the United States can strike in friendly countries, who exercise control and who are opposed to Al-Qaeda. It is the countries like Pakistan, whose efforts in stamping out terrorism are suspect, and in Yemen, where the government is very weak, that targeting could be permissible.

The difference between Israel and the United States appears to be the individualized suspicion and case by case determinations. Additionally, it appears as though the United States, in its drone war, may not exactly know who it is targeting, relying on what are termed “signature strikes,” which target groups of men believed to be associated with terrorist groups, but whose identities aren’t always known. The other type of strike, known as “personality” strikes, targets known terrorist leaders.

These signature strikes cannot withstand scrutiny. If you do not know who the target actually is, then it is impossible to assess the possible threat that they may pose. It is difficult to determine how many of these types of strikes have been perpetrated since 9/11, but the number is likely significant, as the total number of drone strikes (including personality strikes) numbers in the hundreds, including 122 in Pakistan alone in 2010.[ix] If Pakistan is any indication, the numbers do not look good. Only 58 known militant leaders have been killed in drone strikes in Pakistan, representing just 2% of total deaths. The lack of statistics presents a difficult challenge, but there are numerous instances in which large numbers of civilians have been killed.

On December 17, 2009, according to numerous media reports and Amnesty International, the United States launched cruise missiles carrying cluster bombs at a village in southern Yemen called Al-Majalah.[xi] The strike killed 41 civilians, including 14 women and 21 children. The target was supposedly an Al-Qaeda training camp, and there were reports that 14 militants were also killed, but the primary target, Qasim al-Raymi, is believed to have survived.

Four years later, following Obama’s more stringent regulations for targeting, hellfire missiles struck a convoy in southern Yemen. The convoy was believed to have actually been a wedding procession. The missiles killed at least 12 and wounded at least 15 others.

On July 6, 2012, in a small village called Zowi Sidgi, in North Waziristan, Pakistan, a series of drone strikes killed 18 male laborers, including one child. The first strike struck a tent where men had gathered for an evening meal. The second strike occurred minutes later after others had come to help those injured in the first strike.

Because of the lack of available statistics, it is hard to determine the number of civilian deaths, as a percentage of total deaths. But, as you might expect, the United States and Pakistan have different numbers than a number of human rights organizations. Last year, Pakistan claimed that only 3% of U.S. drone strikes were noncombatants (67 out of 2,160). However, the UN has claimed the number to be much higher, closer to 18%.

In a moment of candor last year, Lindsey Graham, asserted that drone strikes had killed 4,700 people outside the recognized battlefields of Iraq and Afghanistan. Graham’s death count would raise questions about the much-vaunted precision of the strikes. Using the Bureau of Investigative Journalism’s count, the U.S. has launched between 416 and 439 drone strikes in Yemen, Pakistan and Somalia since the U.S. first successfully weaponized an MQ-1 Predator a decade ago. Using the 18% figure determined by the UN, those 4,700 deaths would mean that nearly 850 civilians have also been killed.

Oddly enough, there was once a time where targeted killings were abhorrent to United States policy makers. The American Ambassador to Israel, Martin Indyk, said, in 2001, before the attacks on 9/11 that, “The United States government is very clearly on record as against targeted assassinations. . . . They are extrajudicial killings, and we do not support that.” Now, there is no longer any doubt that targeted killing has become official U.S. policy. Gary Solis, who once ran the law program at the U.S. Military Academy, commented on the change. “The things we were complaining about from Israel a few years ago we now embrace,” Solis says. Now, he notes, nobody in the government calls it assassination. 

At first, some intelligence experts were uneasy about drone attacks. In 2002, Jeffrey Smith, a former C.I.A. general counsel, told Seymour M. Hersh, for an article in the New Yorker, “If they’re dead, they’re not talking to you, and you create more martyrs.” And, in an interview with the Washington Post, Smith said that ongoing drone attacks could “suggest that it’s acceptable behavior to assassinate people. . . . Assassination as a norm of international conduct exposes American leaders and Americans overseas.” According to the New America Foundation, Obama authorized as many drone strikes in his first nine and a half months than President Bush did in his final three years. By 2012, President Obama had ordered six times as many drone strikes in Pakistan than President Bush did in his eight years in office.

Are Targeted Assassinations Good for Israel?

In the 1990s, Israel insisted that it did not engage in targeted killings. When accused of doing so, the Israel Defense Forces “wholeheartedly” rejected the accusation, stating that “there has never been, nor will there ever be an IDF policy of intentional killing of wanted fugitives ... the sanctity of life is a basic IDF value.”

Israel’s public acknowledgement of its targeted killing policy in 2000 was, for some, a revelation. As is often the case within the Israeli-Palestinian conflict, tendentious views and interpretations of the policy quickly emerged. For those with only a facile understanding of the conflict, such a public pronouncement could elicit reactions that Israel had been surreptitiously hiding the program. The reality is that the public acknowledgement was merely an affirmation of an already well-known reality; a paradoxical reality that dates back to Israel’s independence.

Before Israel was founded, in 1948, there were three main Zionist military forces operating in the British Mandate of Palestine. The Haganah, meaning “Defense,” was the main body, which would later make up a large chunk of the newly formed Israel Defense Forces. However, there were two other bodies active before Israel’s founding, the Irgun and Lehi. Both of these organizations were more militant than the Haganah, and would later form the more conservative blocs of Israel’s political system. The two groups are notable for a number of deadly attacks carried out against various targets during Israel’s founding. The King David Hotel Bombing, which killed nearly 100 people, was orchestrated by the Irgun. Lord Moyne, a notable British businessman, and Folke Bernadotte, a Swedish diplomat, were both assassinated by the Lehi. And most notably of all, the massacre of Deir Yassin, a brutal and abhorrent attack on a Palestinian village, which left over 100 civilians dead; committed by both the Irgun and the Lehi. At the time of the Deir Yassin massacre, the Irgun was led by Menachem Begin, who would later become Prime Minister. Members of both units would later merge into the Israel Defense Forces.

This reality of Israel’s nascent years was that there was very little hesitancy in using violence to achieve strategic objectives, a tactic which would later be embraced and used by members of Israel’s upper echelon of leaders. It is also important to put such willingness into context. Israel was emerging out of the ashes of the Holocaust, and many were determined to undertake any means necessary to ensure its survival. Fear and apprehension gripped the Jewish community.

Amos Oz poignantly and brilliantly discussed this in his prodigious autobiography, A Tale of Love and Darkness. Oz describes the fear that gripped Jews living in Palestine in the years before 1948, dealing with threats from Arab leaders like Azzam Pasha, the former secretary general of the Arab League. Pasha warned Jews that “if they dared to attempt to create a Zionist entity on a single inch of Arab land, the Arabs would drown them in their own blood.” Oz characterized Jewish Jerusalem at the time as a “Chekhovian town, confused, terrified, swept by gossip and false rumor, at its wits’ end, paralyzed by muddle and terror.” Thus, the need to use force as a necessity is rooted in its foundation. But the use of violence also coincided with a clear willingness to seek peaceful solutions. Israel’s reality is that it is a paradox, embodied within its famous leaders.

Ariel Sharon was well known for his military prowess and ruthlessness, presiding over the Qibya Massacre in the West Bank, and bearing indirect responsibility for the Sabra and Shatila Massacre in Lebanon. Yet, Sharon, who was once closely aligned with Israel’s right-wing Likud party, also orchestrated Israel’s withdrawal from the Gaza Strip, removing Jewish settlers and handing over the territory to the Palestinians. Former Prime Minister, Yitzhak Rabin, signed a peace treaty with Jordan and the Oslo Accords with the Palestinians, a move for which he was later assassinated, by a Jewish extremist. But Rabin was also the former Defense Minister, with a distinguished military career, responsible according to some for the mass expulsion of Palestinians from Lydda and Ramla during the War of Independence.

The issue of targeted killings is a microcosm of this paradox. There is a legitimate and undeniable need for Israel to use force to defend itself. Since its founding, a myriad of different groups have been trying to destroy it. First, it was Arab countries in the War of Independence, the Six Day War, and then during the Yom Kippur War. Then it was various groups, who received funding and safe-haven from Arab countries. Today, the Sunni Islamist group Hamas controls the Gaza Strip while its political leader lives in Qatar (formerly Syria), receiving funding and weapons from Iran. Hezbollah, the Shiite fundamentalist group, controls large parts of Lebanon, while aiding Bashar Al-Assad in Syria, and receiving huge support from Iran. Both groups have made no qualms out of stating their intent to destroy Israel. Is it possible to placate these groups and their leaders? Is it quixotic to think the cessation of targeted killing will also bring about an onset of acceptance and embrace? Are targeted killings myopic; a means of retribution that only embitters more hostility and hatred towards Israel? The answer, just like every answer regarding this conflict, is that it’s complicated.

Two of the most notable targeted killing operations were Operation “Wrath of God” and Operation “Spring of Youth.” The two operations were separate, but interrelated, both done in response to the Munich Massacre at the 1972 Olympic Games, where 11 Israeli athletes and coaches were murdered by Palestinian terrorists belonging to the organization Black September. Both operations resulted in the deaths of dozens of Palestinians, some with blood on their hands, and some not involved in violent activities, as well as the death of innocent civilians. In 1973, in an operation gone wrong, now known as the Lillehammer Affair, Mossad agents killed a Moroccan waiter, who they thought was the noted terrorist, Ali Hassan Salameh. When Salameh was eventually killed, years later by a 100 pound car bomb, 8 others were killed, including four civilians. During Operation Spring of Youth, Israeli forces, led by Ehud Barak, who would later become Prime Minister, stormed a safehouse in Beirut killing three top PLO leaders. One of those was Kamal Adwan. He was shot 55 times in front of his family; his 5 year old daughter, Dana, witnessed the killing.

The reality of those operations was that they were carried out because, according to Golda Meir, bringing those responsible to trial would be impossible. But was it effective? Or does it matter? Was this the only means of justice? What are the long-term ramifications for the family members who witnessed the murder of their husband or father? At what point does the cycle end? In the movie Munich, which details the Munich Massacre and the subsequent retaliation, one of the agents tasked with killing Palestinian suspects wonders what he has accomplished. He wonders whether those responsible should be brought to justice in a courtroom rather than with a bullet. Has the killing brought about its intended objective? “Every man we have killed has been replaced by worst,” he says, asserting that, “There is no peace at the end of this.” 

There are few people in Israel who understand these realties better than the leaders of the Shabak, or Shin Bet, Israel’s internal security organization; Israel’s FBI. Less than 2 years ago, an Israeli filmmaker released a documentary, which chronicled the history of the Shabak, through interviews with six former heads of the organization. A major segment of the documentary involves “targeted assassinations,” illustrating the impossible balancing act imposed on Shabak’s leaders. These difficulties manifested themselves most notably during the Second Intifada.

Yahya Ayyash was a senior member of Hamas and a bombmaker, known as “The Engineer.” Ayyash was responsible for bombs that killed dozens of Israelis in the 90s, actions done in part to derail peace talks between the Palestinian Authority and Israel. In response, Israel hatched a plan to kill him. The Shabak authorized an operation, by which a cellphone, loaded with explosives, would make its way to Ayyash. Ayyash missed his family dearly, and owing to this weak spot, Israel exploited his desire to talk to his father.[xxviii] On a Friday morning in January of 1996, Ayyash’s father called his son, and once the wiretap recognized the voice of Ayyash, the cell phone exploded, killing Ayyash. There were no other civilian injuries or deaths. For some it was justice. But the killing had consequences. At the time of the assassination, Israel had been relatively free of attacks. The response by Palestinian groups was devastating. On February 25, 1996 a bomb ripped through bus number 18 in Jerusalem, killing 26. On March 3^rd, bus number 18 was attacked again, killing 19. The next day a bomb exploded in central Tel-Aviv, outside Dizengoff Center mall, killing 13. When asked about the relationship between Ayyash’s assassination and the deaths of nearly 60 Israelis, former Shabak head Avi Dichter, confirmed there was a connection. But Dichter points out something very important in the logic of this causal connection. The alternative doesn’t guarantee non-violence. In other words, according to Dichter, the idea that not assassinating targets means they won’t try to kill Israelis is simply a false assertion.

Salah Shehadeh illustrates another danger of targeted killing. Shehadeh was the leader of Hamas’s military wing, Izzedine al-Qassam Brigades, a man thought to be personally responsible for the deaths of over one hundred Israelis. According to Avi Dichter, Shehadeh was the man who set Hamas’s terror operation in motion. The Shabak made plans to take him out. Instead of using a small explosive, like in the Ayyash killing, the Shabak decided to fire a missile into his home. On July 22, 2002, they had determined that he was home and that it his daughter was not, only his wife, and the decision was made to drop a one-ton bomb into a densely populated neighborhood in Gaza City. The results were devastating. Shehadeh was killed, along with fourteen others, including nine children. There were calls for the prosecution of Israeli officials responsible for the bombing, and accusations of war crimes and crimes against humanity. After the bombing, senior Hamas leader, Abdel Aziz Rantissi (who was later assassinated in 2004 with hellfire missiles), asserted that “there will be no peace initiative after today…We will chase them in their houses and in their apartments, the same way they have destroyed our houses and our apartments.”

These two separate incidents illustrate the collateral damage associated with targeted killings. The first is that the actions will embitter deep hatred and resentment, resulting in calls and acts of revenge, which will result in more death. The second is the inherent danger of targeting suspected terrorists within civilian areas; the deaths of innocents. In both, the apparent outcome is the same: more death. So, how does it end? Ami Ayalon, a former Shabak head, delves into the difficult and painful issue during the film.

Ayalon wonders how to tell the difference between those people committing the acts, or those who help facilitate the acts, and those who simply preach an ideology. It is the ideology, according to Ayalon, that ultimately leads to the death of Israelis. And if you keep killing each leader whom advocates this ideology, where does it end? Can it end? Is it immoral? Ayalon suggest that it may be. He asserts that when you don’t deal with the person posing an immediate threat and rather with the one who is preaching, “We are headed towards a place, which is forbidden by international law, and basic justice poses huge question marks as to its ethics.” Ayalon sees a parallel to Hannah Arendt’s classic phrase, The Banality of Evil. When you begin killing people en masse, as Israel has done, it becomes, according to Ayalon, a “conveyor belt,” and “you ask yourself less and less where to stop.”

He continues, “I can prove to you that Hamas did not become more moderate after Sheik Yassin was eliminated (Yassin was a spiritual leader of Hamas, confined to a wheelchair since he was a teen who was killed by an Israel missile while he was leaving morning prayers in 2004). I can prove to you that when we killed Abbas Musawi (former leader of Hezbollah) and Nasrallah took over instead, the security situation in Israel didn’t really improve.” It is this cogent assertion during the film by Ayalon, a man who is as familiar with Israeli security as any other person on Earth, which gets your attention. But Ayalon goes a step further regarding the effectiveness of targeted killing. “I’m talking to you as head of the Shin Bet. It’s ineffective.” But what does a Medal of Valor recipient, former Israeli commando, former Commander of the Navy, and former Head of Israeli’s Internal Security, really know about Israel?