JURIST Contributing Editor Amos Guiora of the University of Utah SJ Quinney College of Law says that the US executive branch’s practice of using drones to engage in the targeted killing of suspected terrorists should be subjected to some form of judicial review…

Targeted killing sits at the intersection of law, morality, strategy and policy. I am a proponent of targeted killing because it enables the state to protect its innocent civilian population. However, my support for targeted killing is conditioned on the process being subject to rigorous standards, criteria and guidelines.

My advocacy of both targeted killing and criteria-based decision-making rests largely on 20 years of experience with a “seat at the table” of operational counterterrorism. The dangers inherent in the use of state power are enormous. On the opposite side of the equation, however, is the terrible cost of terrorism; after all, terrorists deliberately target innocent civilians.

However, broad definitions of imminence combined with new technological capabilities drastically affect the implementation of targeted killing predicated on legal and moral principles. The recently released US Department of Justice (DOJ) “white paper” regarding the Obama administration’s drone policy defines “imminence” so expansively there need not be clear evidence of a specific attack to justify the killing of an individual, including US citizens. This extraordinary broadness creates a targeted killing paradigm akin to interrogation excesses under the Bush administration that followed in the wake of the Bybee Memo.

The solution to this search for an actionable guideline is adoption of a strict scrutiny standard which would enable operational engagement of a non-state actor predicated on intelligence information subject to admissibility standards akin to a court of law. Such intelligence would have to be reliable, material and probative.

To re-phrase, this strict scrutiny test seeks to strike a balance by enabling the state to act sooner but subjecting that action to significant restrictions. This paradigm would be predicated on narrow definitions of imminence and legitimate targets. Rather than enabling the consequences of the DOJ memo, the strict scrutiny test would ensure implementation of person-specific operational counterterrorism. That is the essence of targeted killing conducted in accordance with the rule of law and morality in armed conflict.

This proposal is predicated on the understanding that, while nation states need to engage in operational counterterrorism, mistakes regarding the correct interpretation and analysis of intelligence information can lead to tragic mistakes. Adopting admissibility standards akin to criminal law minimizes operational error.

Rather than relying on the executive branch to make decisions in a “closed world” devoid of oversight and review, the intelligence information justifying the proposed action must be submitted to a court that would ascertain the information’s admissibility. The discussion before the court would necessarily be conducted ex parte; however, the process of preparing and submitting available intelligence information to a court would significantly contribute to minimizing operational error that otherwise would occur.

The logistics of this proposal are far less daunting than might seem — the court before which the executive would submit the evidence is the US Foreign Intelligence Surveillance Court (FISA Court), established by the Foreign Intelligence Surveillance Act. Presently, FISA Court judges weigh the reliability of intelligence information in determining whether to grant government ex parte requests for wire-tapping warrants. Under this proposal, judicial approval is necessary prior to undertaking a counterterrorism operation predicated solely on intelligence information. The standard the court would adopt in determining the information’s reliability is the same applied in the traditional criminal law paradigm.

The court would cross-examine the representative of the executive branch and subsequently rule as to the information’s admissibility. While some may suggest that the FISA Court is largely an exercise in “rubber-stamping,” the importance of this proposal is in requiring the government to present the available information to an independent judiciary as a precursor to engaging in operational counterterrorism.

While this proposal explicitly calls for changing the nature of the relationship between the executive and the judicial branches of the government, it would serve to minimize collateral damage in drone attacks predicated on narrow definitions of legitimate target.

This proposal does not limit the state’s fundamental right to self-defense. Rather, it creates a process seeking to objectify counterterrorism by seeking to establish standards for determining the reliability of intelligence information that is the backbone of targeted killing decision-making.

The practical impact? A drone policy predicated on the rule of law and morality rather than the deeply troubling paradigm established by the Obama administration in the DOJ white paper.

Amos Guiora is a Professor of Law, SJ Quinney College of Law, University of Utah. He is the author of numerous books dealing with military law and national security including Legitimate Target: A Criteria-Based Approach to Targeted Killing (Oxford University Press, forthcoming April 2013)

Suggested citation: Amos Guiora, Drone Policy: A Proposal Moving Forward, JURIST – Forum, Mar. 4, 2013, http://jurist.org/forum/2013/03/amos-guiora-drone-policy.php