A January 13 attack launched by a CIA-operated unmanned Predator aircraft against targets in the northern Pakistani village of Damadola has raised questions about the legal and policy aspects of such operations. In this case, U.S. officials say intelligence suggested al-Qaeda’s deputy, Ayman al-Zawahiri, was meeting with a group of extremist associates. Pakistani officials say Zawahiri was not in the village and eighteen civilians were killed setting off angry demonstrations across Pakistan against the United States.

Targeted killings are used by governments to eliminate individuals they view as a threat. Generally speaking, a nation’s intelligence, security, or military forces identify the individual in question and carry out an operation intended to kill him or her. Though questionable, the practice has been used by defense and intelligence operations by governments around the world and has been viewed with increased legitimacy since the start of the so-called war on terror. Gary Solis, visiting professor of law at West Point, says “targeted killings are no longer novel.”  

Typically, targeted killings focus on high-profile suspects whose capture is deemed impossible or too great a risk. “It’s a pretty dicey proposition capturing somebody,” says William Martel, associate professor of international security studies at Tufts University. “You can’t do a snatch and grab casually.” An example of a targeted killing took place in November 2002 in Yemen, when a Predator drone fired a Hellfire missile into the car carrying Abu Ali al-Harithi, a senior al-Qaeda leader. Along with al-Harithi, five other men died, including one American who was traveling with him.

In terms of domestic law, the main stumbling block to carrying out targeted killings is Executive Order 12333—issued in 1981 to protect both U.S. intelligence-gathering efforts and constitutional rights—which states, “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” However, “It is permissible to attack individuals who are heads of [either state or non-state] organizations in combat against the United States,” says Martel.

A separate question is the constitutional issues of limits to executive power and whether the president has the power to authorize targeted killings. In the case of the 2002 strike in Yemen, then-National Security Adviser Condoleeza Rice told reporters, “I can assure you that no constitutional questions are raised here. There are authorities that the president can give to officials [and] he’s well within the balance of accepted practice and the letter of his constitutional authority.” During peacetime this might be a more contentious issue, but former Assistant Secretary of Defense Lawrence Korb explains that in this case, “the congressional authorization of force gave [the president] the power to do this.”

The Bush administration is not the first to attempt this sort of operation. Experts say President Clinton relaxed the executive order banning assassinations to allow for targeted killings. In 1998, following evidence that al-Qaeda was behind twin bombings of the U.S. embassies in Sudan and Tanzania, Clinton ordered a missile strike on an al-Qaeda training camp in Afghanistan and a factory in Sudan. Other similar attacks had occurred before 1998, but great care was taken to avoid the appearance of targeting a specific person to avoid violating Executive Order 12333. During the 1980s and 1990s, U.S. presidents launched a number of missions characterized as punitive air raids or efforts to disrupt enemy operational capacity. Some of these attacks employed bombing from aircraft (Panama 1991, Somalia 1993, Iraq 2003), some used naval gunfire (Lebanon 1984), others used Tomahawk cruise missiles (Iraq 1993 and 2003). In each case, the target was said to be a base or command and control center of a foreign enemy. Probably the most famous example occurred in 1986 after Ronald Reagan authorized the bombing of Libyan leader Muammar el-Qaddafi’s villa following evidence that Libya sponsored an attack on a Berlin disco that killed U.S. soldiers. Qaddafi’s infant daughter died in the attack.

While the congressional resolution authorizing President Bush “to use all necessary and appropriate force…in order to prevent any future acts of international terrorism against the United States,” is cited by the administration as the legal foundation for these actions, experts suggest such operations still raise several questions with regard to international law. One such issue is that of national sovereignty. Unless attacks are authorized by the nation in which the operations take place, they may well be considered a violation of sovereignty.

Two customary principles of the Law of Armed Conflict, which is derived from international law, also apply to targeted killings: distinction and proportionality. Distinction requires combatants “distinguish between combatants and non-combatants,” Solis says, while proportionality is the principle stipulating the “destruction of civilian property must be proportional to the military advantage gained.” These principles are intended to limit collateral damage, but targeted killings involving unreliable intelligence or the remote firing of missiles are at a greater risk of causing collateral damage.

The attack raises a number of legal, political, and security issues. At least four al-Qaeda members were killed in the attack, according to U.S. and Pakistani government sources. Zawahiri, the principal target, was not present during the attack. Eighteen civilians—including five children—were reportedly killed in the strike, raising both questions of distinction and proportionality. “How many lives is the No. 2 of al-Qaeda worth?” asks Solis. Several policymakers, however, defended the attack. “It’s terrible when innocent people are killed; we regret that,” Senator John McCain (R-AZ) told CBS. “But we have to do what we think is necessary to take out al-Qaeda, particularly the top operatives. This guy has been more visible than Osama bin Laden lately.”

Another issue is Pakistani sovereignty. National security analyst William M. Arkin says “there is not a question in my mind that Pakistani President Pervez Musharraf was privy to [the CIA strike],” pointing out the Predator aircraft took off from Pakistani soil. Pakistani Prime Minister Shaukat Aziz, denied advance knowledge and said the U.S. did not have approval for such attacks.

Experts say a presidential “finding,” a declaration that a covert operation is in the national interest, gives the authority to carry out covert operations such as targeted killings. “It would require the president to say ‘OK,’” says Korb. Following the January 13 Damadola attack, some reports indicated the operation was authorized by CIA Director Porter Goss. Korb says this would only be possible if “the president has delegated authority to him.” Arkin concurs: “The CIA director has to pull the trigger,” he says, “but I think an attack of this type does get presidential approval as well.”

Yes, but the type of review depends on what organization is carrying out the attack. If the U.S. military is involved, there is “a very sophisticated target-review process that checks and cross-checks any potential target with regard to constraints of international law, appropriateness of choice of munitions, blast effects as they relate to collateral damage, etc.” says Scott Silliman, executive director of Duke University’s Center on Law, Ethics, and National Security. This process is less clearly defined when the attack is carried out by the CIA, though Korb says “you’re going to have to get a lawyer to sign off before the director would sign off.” Likewise, experts say, there is a review process to ensure the accuracy of the intelligence prompting an attack.

Two instances are worth noting. The first, originally reported by Seymour Hersh in the New Yorker, occurred in Afghanistan in October 2001 when a CIA-operated Predator aircraft picked up the convoy carrying ousted Taliban leader Mullah Mohammed Omar. At the time, the CIA did not have the authority to launch a missile and deferred the decision to Gen. Tommy Franks, then-commander of United States Central Command, who explained, “My JAG [military lawyer] doesn’t like this, so we’re not going to fire.” Omar escaped and remains at large.

The second example occurred on April of 2003, when U.S. intelligence suggested Saddam Hussein and his sons were dining in a Baghdad restaurant. U.S. forces rained scores of missiles down on the area, destroying the restaurant and a few nearby homes, only to discover Hussein was not present. The blasts did kill fourteen civilians. While U.S. officials likely knew the attack could harm some civilians, they clearly believed the military advantage gained by Hussein’s death would outweigh the civilian cost.

Yes. During the Cold War, Soviet-bloc intelligence services regularly tracked down dissidents and, if they could not be kidnapped, they were often assassinated. One famous instance of this involved the Bulgarian dissident Georgi Markov, killed by a poison-tipped umbrella in London by a suspected KGB agent. Iran, Syria, North Korea, and many other repressive nations  have allegedly offed dissidents on foreign soil, too. China and Taiwan have accused each other of assassinating rival activists, and Cuba also has tracked down dissidents thought to be involved in plotting against Fidel Castro.

More recently, the Israeli government has used targeted killings extensively in its fight against militant Islamic groups such as Hamas and Hezbollah. Gal Luft, an Arab Affairs expert at Johns Hopkins University, wrote in the Winter 2003 edition of Middle East Quarterly that there had been some eighty such attacks launched by Israel since 2001.

Another incident took place on March 6, 1988, in Gibraltar, Spain, where British intelligence officers shot and killed three members of the Irish Republican Army they believed had planted a bomb outside the British Governor’s residence. The incident prompted public outcry in Britain but an investigation cleared the British agents of wrongdoing. In 1995, the European Court of Justice overturned that finding, ruling the officers had used excessive force.

On July 10, 1985, French intelligence operatives detonated limpet mines attached to the side of the Rainbow Warrior, a Greenpeace-operated boat docked in New Zealand, whose multinational crew planned to interfere with French nuclear tests in the Pacific Ocean. The mines were intended to cripple the ship without taking lives, but a photographer drowned when the boat sank. France initially denied involvement, but when local police arrested the French agents, a diplomatic crisis ensued between France and New Zealand, requiring UN mediation to resolve.