by John Yoo
3
ASSASSINATION
On November 4, 2002, Abu Ali al-Harithi, al Qaeda's top operative in Yemen and a planner of the 2000 bombing of the USS Cole, and five other suspected al Qaeda members were driving in a car outside the Yemeni capital of Sana. An unmanned Predator drone, controlled remotely by a CIA pilot from a base in Djibouti and over-seen by commanders in Saudi Arabia, located the car and fired a Hellfire missile. All six men were killed. All that was left was the charred hulk of a bombed-out car sitting in the desert. Unnamed government sources boasted of the strike to the New York Times as an example of a victory in the war on terror produced by high technology and actionable intelligence.1
Among the dead was a naturalized American citizen, Kamal Derwish. Derwish was said to be the leader of an al Qaeda sleeper cell that had been discovered in the Buffalo area.2 The other cell members, known as the "Lackawanna 6," were arrested and pled guilty in 2003 to providing material support to terrorists. Derwish, however, left the country and ended up in the car in Yemen. Derwish had not benefited from an arrest warrant, lawyers, or a plea bargain. Instead, he escaped the reach of the FBI only to meet his end on the receiving end of a CIA missile. Civil liberties lawyers have complained loudly of the treatment of captured enemy alien combatants held at Guantanamo Bay, Afghanistan, or Iraq. Few have protested the summary killing of an American citizen by remote control.
The Yemen strike was not a onetime event in the war, but an example of targeted killing, or what some see as assassination. During the November 2001 invasion of Afghanistan, CIA Predator drones attacked a high-level al Qaeda meeting in Kabul, missing Osama bin Laden but killing his military chief, Mohammed Atef. In May 2002, the CIA reportedly launched a missile against Gulbuddin Hekmatyar, an Afghani warlord who had joined forces with the Taliban. In May 2005, the CIA reportedly killed al Qaeda leader Haitham al-Yemeni, who had been hiding in the fiercely independent area of northwestern Pakistan out of reach of government troops.3
In June 2006, the United States successfully targeted and killed Abu Musab al-Zarqawi. As the leader of al Qaeda's operations in Iraq, Zarqawi was responsible for scores of terrorist attacks designed to drive out American troops and to spark sectarian violence between Iraqi Shiites and Sunnis. American intelligence had been given the location of Zarqawi's spiritual adviser, Abdel Rahman, during the questioning of an Iraqi courier.4 By tracking Rahman, the United States located Zarqawi in an isolated house, and called in an airstrike by a single F-16. Two 500-pound bombs killed Zarqawi, Rahman, and a man, two women, and a child. American commanders chose a targeted attack from the air because no ground troops were in the area and they did not want to risk his escape.
Washington Post reporter Bob Woodward has reported that all of these strikes were authorized by a secret order signed by President Bush less than a week after the September 11 attacks.5 President Bush obliquely referred to its purpose on September 17, 2001, when he spoke to reservists. "Do you want bin Laden dead?" a reporter asked. "There's an old poster out West, as I recall, that said, 'Wanted Dead or Alive,'" the President replied.
Woodward has written that the President's order authorized the CIA to kill or capture the leaders of al Qaeda and other allied terrorist organizations. As with all covert activity, the executive order was set down in writing, and a copy given to the House and Senate intelligence committees, reportedly including a list of the leading figures to be targeted, such as bin Laden and al Zawahiri.6
Satellite imagery, sophisticated electronic surveillance, unmanned drones, and precision-guided munitions allow American intelligence and its military forces to strike enemy targets virtually anywhere in the world, anytime. Today we can reach beyond the traditional battlefield. We no longer need to rely on strategic bombing of the enemy and its support structure. Once U.S. intelligence agents receive information that, say, an enemy leader is in a safe house in western Pakistan or in a car in Yemen, force can be deployed in hours, if not minutes, rather than the days and weeks it used to take to plan and execute attacks. These capabilities allow the United States to match the unconventional organization and tactics of al Qaeda with a surgical response that can target its leaders without the extensive harm to civilians that has characterized previous wars.
Precision strikes against enemy leaders have lately been the focus of media scrutiny and critical commentary.7 The critics argue that it violates U.S. law banning assassinations. They also argue that, even if technically legal, such targeted attacks are unwise because they risk reprisals against Americans. Perhaps the most well-known strike was against Saddam Hussein's sons, Uday and Qusay, who also served as two of his top aides. At the outset of the Iraq war, President Bush ordered an acceleration of the invasion timetable to take advantage of intelligence revealing the location of Saddam Hussein and his top leaders. The Air Force attack missed.8 Once Baghdad fell, a team of elite Army soldiers set out to hunt down the missing leaders of the Hussein regime. In July 2003, U.S. special forces tracked down Uday and Qusay to a house in Mosul and killed them after a long firefight.9 Flanked by Rumsfeld and Paul Bremer, civilian head administrator in Iraq, President Bush praised the action in a Rose Garden speech.10
More recently, significant public protests raged in Pakistan in response to the latest example of targeted killing. In December 2005, a Predator drone fired a missile that killed Hamza Rabia, who was reputed to have become one of the top five al Qaeda leaders in the wake of the deaths or capture of more well-known figures in the terrorist organization.11 CIA officials followed up that success with another attack in January 2006, targeting a dinner where al Zawahiri was supposed to be in attendance. Apparently he did not show up, and the attack killed at least eighteen Pakistani civilians and reportedly at least one aide to Zawahiri instead. Local rallies broke out in protest.12
Critics believe that such uses of force are illegal or just bad policy. Executive Order 12,333 states: "No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination."13 In the wake of the Yemen strike, the Swedish foreign minister called the attack "a summary execution that violates human rights," a view also espoused by Amnesty International.14 After the attacks that killed Uday and Qusay, George Gedda of the Associated Press asserted that "pursuing with intent to kill violates a long-standing policy banning political assassination," adding, "It was the misfortune of Saddam Hussein's sons...that the Bush administration has not bothered to enforce the prohibition."15 Intelligence analyst Thomas Powers argued in the New York Times that efforts to kill Iraqi leaders would invite retaliation: "Mr. Hussein is not the only figure in danger of sudden death in Iraq at the moment, and it is a toss-up who is in greater danger--Mr. Hussein or Paul Bremer."16 Some human rights advocates believe that such attacks violate international law because the targets are civilians, not uniformed soldiers, and must therefore be handled by law enforcement--making any preemptive attack illegal.
These criticisms rest on profound misconceptions of the nature of the war on terrorism and the rules of warfare. Because we are at war with al Qaeda, we can certainly use force to conduct hostilities against the enemy's leaders. This does not violate any American law--constitutional, congressional, or presidential--or any ratified treaty. Killing the enemy is what warfare is. Targeted attacks further the goals of the laws of war by eliminating the enemy's leaders with minimal but more effective force and reducing harm to innocent civilians. Because we face an enemy that resembles a network, not a nation, the best strategy is to attack those who comprise the key hubs of that network because there will rarely be armed forces to assault conventionally. Destroying training camps alone will amount to no more than "pounding sand."
Taking out terrorist leaders, whether by Predators firing Hellfire missiles from the sky or by Delta teams on the ground, is ongoing, it is legal, and it is wise policy. The crime approach to terrorism seems to forbid such acts, but this only shows how misconceived this approach is in this war. In the peacetime
world of criminal enforcement, preemptive attacks against "suspects" are, of course, illegal. But in war our intelligence and military must have the ability to carry out targeted strikes. Despite a great deal of innuendo to the contrary by those who disapprove of this war on policy grounds, no American political leader seriously disputes the legality or necessity of targeting terrorists.
Policy
Under peacetime conditions, a democratic nation like the United States normally would never consider attempting to kill individuals before they committed a crime. Our criminal justice system acts retrospectively; a suspect must commit a crime before the police can arrest him. Under our Constitution and laws, a police officer in times of peace can use deadly force only to save his life or the life of another when it is in imminent danger. Police cannot use force to stop a fleeing suspect, even if they believe he might pose a threat to other lives at some time in the future, or to avert a crime that does not threaten someone's life.
Derwish, as far as we know, was not about to threaten anyone's life. He was killed while sitting in a car in the middle of the Yemeni desert. If authorities in peacetime had suspected Derwish of conspiring to commit terrorism, they would have had to gather enough evidence to show probable cause that he was involved in a crime in order to arrest him, then try him and prove to a jury his guilt beyond a reasonable doubt. Then, only if he were sentenced to death by a jury could he have been executed. These rules represent America's decision as a society that the harms of individual crimes, costly though they may be, cannot be fought by direct preemptive action.
War, however, brings forth a different set of concerns. When a nation goes to war, it seeks to defeat the enemy in order to prevent future harms on society inflicted by enemy attacks. Because war deals with prospective concerns, it relies less on exact information and more on probabilities, predictions, and guesswork. The military bombs a building when it estimates with varying degrees of certainty that enemy soldiers or enemy munitions are there. It does not wait to attack until it has proof beyond a reasonable doubt or even probable cause. That would risk allowing the enemy forces to escape, strengthen their position, and live on to attack another day. War by its nature seeks prevention, not punishment.
When the United States was still treating terrorism as a criminal justice system, it waited until after an attack before attempting a capture. Now that we are at war with al Qaeda, we are entitled to kill the enemy's commanders. This advances classic objectives of demoralizing the enemy, throwing their troops into confusion and disarray, undermining their planning, and removing their most able leaders. All wars, including World War II and the Korean War, witnessed numerous attacks on enemy military leaders.17 In the 1980s, President Reagan ordered U.S. jets to bomb Libyan locations where Colonel Qadhafi might be living and working.18
Launching a missile to kill al Qaeda commanders like Derwish, even though he was an American citizen, was perfectly legal. He was a member of the enemy forces, the equivalent of an officer--Derwish amounted to a captain or major in command of an al Qaeda cell, the equivalent of a military unit. Al-Harithi was even more important, something like a colonel. We are legally and morally free to target them for attack whether they are on the front lines or behind them.
If some readers find this outrageous, consider that killing the enemy commander can better promote the principles behind the rules of civilized war. Over the centuries, the laws and customs of war have developed to try to reduce the harm to noncombatants and limit the use of force to that which is proportional to military objectives. By specifically targeting enemy leaders, the United States can render enemy forces leaderless and minimize casualties, both civilian and military.
Using targeted killing as a primary tactic also takes better account of the new kind of war facing the United States. More tanks, more Army divisions, or more carrier battle groups and submarines won't win this war. This did not bring victory in Vietnam and it will not work against the even more diffuse al Qaeda. Traditional deterrence and the threat of retaliation will not be effective against a network with no territory or conventional soldiers to crush. In military parlance, this war is not about "kinetics." The means needed to frustrate or cripple al Qaeda is quite small, and well within the capabilities of a single division of U.S. troops.
The problem is not America's power, but how and where to aim it. Al Qaeda does not mass its operatives into units on a battlefield, or at least it didn't after its setbacks in Afghanistan in the fall and winter of 2001. Al Qaeda disguises its members as civilians, hides its bases in remote mountains and deserts or among unsuspecting city populations, and avoids conventional military confrontation. The only way for the United States to defeat it is to destroy its ability to function, and the best way to do that is by selectively killing or capturing its key members.
The case for taking out individual al Qaeda leaders is even more compelling because al Qaeda is a decentralized network, not unlike the Internet, which gives it remarkable resiliency. A killed or captured leader seems to be quickly replaced by the promotion of a more junior member. While the United States succeeded in killing Zarqawi, he was soon replaced by another terrorist leader, this time an Egyptian. Most nation's militaries would have collapsed after the kinds of losses inflicted by the United States over the last five years: thousands of operatives killed, two thirds of al Qaeda's leadership killed or captured, and all of its open bases and infrastructure destroyed in Afghanistan and elsewhere. Al Qaeda continues to exist as a global, ideologically driven network infiltrating operatives into the United States, as well as carrying out new terrorist attacks in Iraq, London, Madrid, and Bali.
Al Qaeda exhibits the typical characteristics of what is known as a "free-scale network."19 A free-scale network is not created at random. It is made up of many nodes connected to many other nodes for some purpose, and built around hubs. In terms of the Internet, hubs are highly trafficked Web sites with connections to many other sites, such as google.com, yahoo.com, and msn.com. Users visit them often in order to connect to other sites, and a great many of these other sites connect to them as well. In a social or professional network, hubs are people whom a great many people know, who set trends, or whose work influences many others.
Decentralization is a network's great attribute. It can quickly collect and process information from a myriad of sources and coordinate the collective efforts of thousands of nodes located in different places and connected only by a common interest or affinity. If a node disappears, others simply move their connections. Networks can remain remarkably immune to attack. Randomly destroying its nodes will not bring collapse, and the loss of a single hub will not bring down the whole network. Since it has no real single leader, it can function even after suffering severe losses.
Al Qaeda is just such a network. Nodes are terrorists brought together by a shared desire to promote Islamic fundamentalism in the Middle East by any means necessary, including violence. Its hubs are leaders such as bin Laden and Zawahiri, and facilitators such as Khalid Sheikh Mohammed and Ramzi bin al Shibh. Capturing or killing an al Qaeda member is important for the discovery of other cells and plots.
Targeting al Qaeda hubs must be simultaneous. Random, individual attacks on a free-scale network will not work, in the same way that turning off random Web sites would have almost no effect, but closing down a Google or Yahoo would be very serious. Similarly, the functions of ordinary al Qaeda operatives are easily shifted to others. In order to take down the entire network, the United States must gather timely and accurate information and attack its most important leaders simultaneously rather than just stopping imminent attacks one by one.
This raises an important difference between law on the one hand, and good policy on the other. Simply because we can kill a member of al Qaeda does not always mean we should. We can interrogate captured leaders to learn not just about tomorrow's bombing, but about other plans for the future, and the identities and locations of other al Qaeda facilitators and commanders. It was far m
ore advantageous for American intelligence that al Qaeda leaders Abu Zubaydah, Khalid Sheikh Mohammed, and Ramzi bin al Shibh were captured in Pakistan rather than killed by missiles. Strong cooperative relationships with other nations to capture and detain hostiles are invaluable in this covert war. They can provide us with intelligence, cultural expertise, and capabilities, which is why effective diplomacy and strong alliances are crucial factors in wartime success. Reducing collateral damage to civilians near terrorists is a high priority not only because of American concern about human rights but because mistakes can undermine popular support for our efforts. But critics forget that some nations, such as Pakistan, Afghanistan, and Saudi Arabia, may make formal political protests to cater to their citizens, while quietly allowing us to conduct targeted strikes.
During the Afghanistan invasion, a missile strike on a caravan of SUVs reinforcing Kandahar was postponed based on a military lawyer's judgment that women and children seemed to be in the convoy, although intelligence reported a high probability that the caravan was indeed an al Qaeda and Taliban unit.20 Taliban and al Qaeda fighters in Afghanistan were bringing their families onto the battlefield intentionally, knowing that this would lessen their chances of being targeted.21 Decisions to attack in such circumstances cannot be spelled out in simple rules. Instead, the importance of the target must be balanced against the collateral damage to innocents nearby, by military commanders, in a matter of minutes.
