Download this Paper Open PDF in Browser

Measure Twice, Shoot Once: Higher Care for CIA Targeted Killing

43 Pages Posted: 19 Jun 2010 Last revised: 5 Aug 2011

Afsheen John Radsan

William Mitchell College of Law

Richard W. Murphy

Texas Tech University School of Law

Date Written: June 16, 2010

Abstract

Killer drones are the future of warfare. Their use, viewed from one angle, generates few legal problems insofar as drones merely provide another tool for the longstanding military practice of killing enemies from the air. Yet, since the drone’s extraordinary capabilities have greatly expanded the government’s range for finding, tracking, and killing human targets in Afghanistan, Pakistan, and other places, commentators debate whether it is legal to kill suspected terrorists in self-defense or as part of an armed conflict - or whether America’s targeted killing is murder.

Assuming international humanitarian law (IHL) applies, we develop specific regulations for the CIA’s targeted killing of active members of al Qaeda and the Taliban. Our analysis complements a prior article that applied the enemy-combatant cases from the United States Supreme Court (Hamdi and Boumediene) as a parallel path toward internal due process. Whether through IHL or by American due process, we argue for heightened review from the CIA’s Inspector General.

To honor IHL’s principles of distinction and military necessity, we explain why the drone operator must be sure beyond a reasonable doubt that the trigger is being pulled on a functional enemy combatant. To honor IHL’s principle of precaution, we also explain why the CIA’s Inspector General must review every CIA drone strike, including the agency’s compliance with a checklist of standards and procedures for the drone program. To reach these conclusions, we adopt guidance from the International Committee of the Red Cross on who falls within the category of people “directly participating in hostilities,” subjecting them to targeting, and we apply techniques from American administrative law.

We also consider targeting American citizens. A program that establishes a very high certainty for targeting as well as a “hard-look” after each strike helps ensure fairness and accuracy regardless of the citizenship of the people in the cross-hairs. In today’s language of IHL, these are “feasible precautions” for the remote-control weapons of the new century.

Keywords: targeted killing, international humanitarian law, Predator drones, distinction, military necessity, precaution

Suggested Citation

Radsan, Afsheen John and Murphy, Richard W., Measure Twice, Shoot Once: Higher Care for CIA Targeted Killing (June 16, 2010). University of Illinois Law Review, Vol. 2011, No. 4, 2011; William Mitchell Legal Studies Research Paper No. 2010-14; Texas Tech Law School Research Paper No. 2010-25. Available at SSRN: https://ssrn.com/abstract=1625829

Afsheen John Radsan (Contact Author)

William Mitchell College of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

Richard Wyman Murphy

Texas Tech University School of Law ( email )

1802 Hartford
Lubbock, TX 79409
United States
806-742-3990 ex.320 (Phone)

Paper statistics

Downloads
761
Rank
25,987
Abstract Views
4,653