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A Justice Department “white paper” released this week offers a legal rationale for the Obama administration’s targeted killings of alleged al-Qaida operatives who are also American citizens. But legal experts say the document’s broad interpretation of who represents a legitimate target — and an imminent threat to U.S. safety -– gives commanders carte blanche to kill. Kojo explores the legal and ethical issues with a legal scholar who formerly advised Israel on targeted killings.
- Amos Guiora Professor of Law at the S.J. Quinney College of Law, University of Utah; retired Lieutenant Colonel in the Israel Defense Forces; author of "Legitimate Target: A Criteria-Based Approach to Targeted Killing"
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, video portraits of people who make up Washington's network, but first, this week, the world finally got a look in black and white at the U.S. government's rationale behind its targeted killings of al-Qaida suspects, including those aimed at U.S. citizens. But the legal reasoning laid out in the 16-page leaked memo was anything but black and white.
MR. KOJO NNAMDIThe so-called white paper went beyond anything the public has heard from government officials so far about when and why suspects are chosen for attack. Instead it provided expansive descriptions of what constitutes an imminent attack and when the U.S. can act in self-defense. The documents' broad language has raised red flags for legal analysts and lawmakers alike, especially as Congress holds hearings on the next CIA director.
MR. KOJO NNAMDIBut as Orwellian as it may sound, legal scholars say there are still ways the U.S. can write a policy that meets legal, ethical and moral standards, and that we need look no further than Israel for the model. So joining us now from member station KUER at the University of Utah in Salt Lake City is Amos Guiora. He is a professor of law at the University of Utah and author of the upcoming book "Legitimate Target: A Criteria-Based Approach to Targeted Killing." He served for 19 years in the Israel Defense Forces where he gave legal advice on targeted killings. Amos Guiora, thank you for joining us.
PROF. AMOS GUIORAThank you so much for having me on the show today.
NNAMDII'd like to talk a little bit first about your personal experience advising Israel on its targeted killings in the 1990s, but first, I'd like to briefly dissect the white paper that the Justice Department released this week. You were very disturbed by the language this paper contained. So let's address your main concerns, namely who constitutes a legitimate target and whether they represent an imminent threat.
GUIORASo you have hit the nail on the head in your introduction because indeed I was deeply concerned because the definition of imminence or imminent threat as articulated in the white paper is such that there need not be clear evidence that a specific attack on U.S. persons is about to occur nor that interests -- well, the interests will be impacted in the immediate future, which means that from the perspective of the law that this extraordinarily broad definition of imminence means in essence that legitimate target is so broadly defined that almost literally anyone is a legitimate target.
GUIORAYou need not be a direct participant and the fact that there need not be clear evidence of the specific attack by specific individuals opens the door, the slippery slope, you know, we can use of any of those other expressions, if from our perspective of someone who's been involved in this process that this is indeed, to your words, deeply disturbing.
NNAMDIThe white paper says that President Obama can give the order to kill an American citizen if an -- quoting here -- "informed high-level official decides he is a senior al-Qaida leader and presents an imminent threat of violent attack," but the definition of high-level official and imminent seemed squishy here. What does this...
NNAMDIGo ahead, please.
GUIORAI think that, first of all, high-level official I understand that to be someone in the executive branch who's been mandated or tasked by the president to be recommend their authorizer. That probably worries me less than two other important issues: one, again, the imminence question in terms of articulating, defining when a threat is posed by a specific person, and the other issue that is disconcerting/disturbing is the lack of external review. And if we're going to end up talking about the Israeli model, which is very different from...
GUIORA...the American model, in many ways what this white paper is, it harkens back to the unitary executive theory articulated by Prof. John Yoo in the Bush administration when the Bush administration implemented the torture policy with the administration articulated implemented torture largely predicated on the memos. And in many ways I think you can draw a direct link between that paradigm and this paradigm.
NNAMDIWe're talking with Amos Guiora. He is a professor of law at the University of Utah and author of the upcoming book "Legitimate Target: A Criteria-Based Approach to Targeted Killings." We're taking your calls at 800-433-8850. What do you think defines an imminent attack, one that's happening the next day, next month, next year? Or do you think the military is justified in killing a U.S. citizen overseas if it suspects that person is planning an attack?
NNAMDI800-433-8850. You can also send email to firstname.lastname@example.org or send us a tweet, @kojoshow. What does this memo say about the demise of those who are, well, nearby when these targeted attacks occur, whether there are innocent civilians or more minor actors working with an intended target? One recalls that Anwar al-Awlaki's 16-year-old son was killed in a separate drone strike that killed Anwar al-Awlaki, and the 16-year-old was also an American.
GUIORAThis obviously goes to the question of collateral damage. According to international law, collateral damage is tragically inherent to conflict. The responsibility of the commander of the state is to seek to minimize collateral damage. It doesn't mean that there will be no collateral damage because one of the inevitable/tragic results of conflict is collateral damage. The question is whether or not the model, the paradigm that is put into play actively, proactively seeks to minimize collateral damage.
GUIORAOne of my grave concerns about this white paper is the moment you create a paradigm where imminence is so broadly defined that there need not be, again, specific evidence, clear evidence of a specific attack, it really broadens -- first of all, who's a legitimate target? And the moment you broaden who's a legitimate target, it's inevitable that you then all but inevitably broaden the number of individuals who will be killed as collateral damage because if you have narrow articulation of a threat, then there are limited number of people who can be on your kill list.
GUIORABut the moment you have this very broad list, if you will, because, again, because imminence is so broadly defined that you significantly enlarge the pool of potential collateral damage. And the moment you enlarge the pool of collateral damage, not only from my perspective, that you're in violation of international law, but I think you make a clear argument that you're also impacting your stand how the world views you in the context of the court of international opinion.
GUIORASo collateral damage, A, a legal issue, but, B, also very much a policy/public, quote and unquote, "public relations issue" that I'm not sure how carefully was taken into consideration when this very broad definition of imminence was articulated and presented in the white paper.
NNAMDIThe memo discuses why targeted killings of U.S. citizens would not be a war crime or violate a U.S. executive order banning assassinations. How do they justify this, and what's the difference between an assassination and a targeted killing, if any?
GUIORACorrect. Assassination is -- when we use the term assassination, we're referring to the killing of a political leader. Targeted killing is implemented against individuals who are viewed as direct participants in terrorism. And those individuals at least in the Israeli model who've been identified as legitimate targets for targeted killing are not political leaders. They're terrorists.
GUIORASo I think you can draw a clear distinction between assassination, political leader, targeted killing, direct participant in hostilities and terrorism. That articulation, that distinction or delineation from my perspective, that's fine. Where it gets tricky, again, is how you define who's a legitimate target? I think in many ways one of the issues that we need to discuss is how you go about determining who's a legitimate target, are you doing this broadly or narrowly.
NNAMDIWe are going -- we're going to get to that in a second.
NNAMDIHow does the language in a memo like this hold up under international law?
GUIORAFirst of all, this memo is not legally binding. It's a Department of Justice white paper, memo. But in the context of international law, if we think about narrowly defining who's a direct participant, then I would suggest that a memo runs headstrong into international law and not on a path with but heads strong into. And I think that's troubling.
GUIORAIn spite of the fact that the memo articulates a three-part test for legitimizing target killing of Americans, one that has to be in accordance with the laws of war that there have to be no alternatives, and, three, that in the context of imminence. But in spite of that three-part test, because of this broad definition of imminence and the byproduct I think will be wide scale or at least broad collateral damage I think there's going to be significant concerns raised by, you know, academics who are engaged in international law.
NNAMDIWe're talking with Amos Guiora. He is a professor of law at the University of Utah and author of the upcoming book "Legitimate Target: A Criteria-Based Approach to Targeted Killing." We're inviting your calls at 800-433-8850. Do you think the U.S. is justified in killing a U.S. citizen overseas if it suspects that person is planning an attack? Give us a call, 800-433-8850, or if you have a particular opinion or response to the leaked memo, then you can also call us.
NNAMDIAs I said, when I introduced you, Amos Guiora, you spent maybe two decades serving in Israel's defense forces where you attained the rank of lieutenant colonel. From 1994 to 1997, you also advised the military on its targeted killings in the Gaza Strip. Can you give us some context on why Israel instituted its targeted killing policy?
GUIORAI think the policy in Israel was implemented after significant policy discussions seeking to determine what's going to be the most effective mechanism to engage in what I refer to as person-specific operational counterterrorism. And targeted killing at least how it's been implemented, adopted and implemented in Israel is very much focused on the specific person who poses a direct threat with respect to a future act of terrorism narrowly defined.
GUIORAAnd that three-step process is fundamentally distinct from the paradigm articulated in the DOJ memo. And the idea of a person-specific targeted killing means that according to the intelligence community which is gathered information which analyses the information, that particular person is a direct participant in a future act of terrorism. And the word future also needs to be narrowly defined, not future amorphous but a future immediate. And that is how I would suggest that the word imminence must be defined in order to meet international standards and so...
NNAMDIAs future immediate.
GUIORAExactly. Not future, you know, down the road but future immediate, like about to occur now because what's really important in this entire discussion is when we analyze intelligence information is to ascertain not only its reliability, its credibility but also its time relevance. So if the source says something will occur, you know, next week, next month, I would think that that is so far down the road and there so many intervening variables that that would not be legitimate.
GUIORAAnd that's why from my experience the targeted killing paradigm needs to be implemented when the threat is immediate and, again, focusing on a specific person who he poses that imminent immediate threat.
NNAMDISo how does what you see in this white paper compare to the rules Israel followed in its targeted killings?
GUIORAFirst of all, I remind all of us that in Israel, the Israeli Supreme Court when it sat as the high court of justice in two separate opinions ruled that, A, the targeted killing policy is legal but -- and the but here is essential to discussion because it impose limits on how the policy can be implemented. And articulating how the policy can be implemented but limited, it focus very much on a specific threat posed by that specific individual and also put into play what I would call a criteria-based analysis in terms of determining who poses a threat and when is that threat posed.
GUIORAThe white paper -- going back to what I mentioned earlier about the unitary executive -- is an executive approach top-down, meaning that there's no judicial review. And I don't really see Congress, in spite of the hearings today, with respect to Mr. Brennan, I don't really see Congress playing an active role in reviewing administrative -- the administration's policies, which means that there really will be no executive review.
GUIORAIn terms of the difference between the two systems and the Israeli system and -- I welcome them. I'm a firm believer in robust judicial review. I think that in Israel, we enormously benefited from the Supreme Court sitting as the high court of justice imposing restrictions, limits and recommending criteria in determining who and when is someone a legitimate target.
NNAMDI800-433-8850. Who should ultimately make the call to take out a suspected terrorist in your view, and should there be judicial review? 800-433-8850. What as the procedure you followed when you got a call from a commander in the field who had a target in sight, Amos Guiora?
GUIORAI had developed -- we had developed criteria, a series of questions that I would ask the commander that enabled my developing a legal recommendation to him. But it's also important to remember that as -- though I was the legal adviser, it was his call ultimately, right? I'm the adviser, and he's the decision maker. But the decision-making tree that I implemented that I used enabled me to gather as much information as quickly as possible from the commander regarding what's the -- who's the source?
GUIORAWhat's the reliability of the source? Where is the commander? What's his assessment? What's the condition of his unit? I mean, questions designed to facilitate decision making and enhancing determination whether or not that particular individual indeed poses an immediate threat. Now, the point of this decision-making tree -- criteria-based decision making is to as much as possible minimize, a, collateral damage and to make sure that we are indeed focusing on that one specific individual.
NNAMDIHow did you weigh the information you were getting from your sources before those attacks took place? As we know, sources on the ground can sometimes have their own agendas.
GUIORAThat's one of the most complicated aspects of operational counterterrorism. Recall that when the commander would call me, I would not speak to the source. The commander would've received information from the intelligence community. So it goes from the intelligence community, to the commander, to me. In that sense, I'm dependent on the intelligence community's analysis of the source -- reliability source credibility.
GUIORABut you're absolutely right that one of the great dangers in this entire business called operational counterterrorism is the extraordinary reliance on the source and on intelligence community. On the other hand, truth be told, it is impossible to conduct operational counterterrorism without sources and without this great reliance on the intelligence community, which raises an interesting question, which I think you were hinting at earlier, who really should be the decision maker?
GUIORAAnd should there be external review of each and every targeted killing decision? It's an interesting question. I think that, first of all, not to have the policy externally reviewed is troubling. I would frankly welcome here in the American paradigm that the U.S. Congress conduct significant serious, not so much politically minded hearings but actual hearings to assess the legality of this policy.
GUIORAI think that's what Congress needs to do. And I'm not sure that will occur. And in the Israeli paradigm, there's no doubt that the hearings or the judicial process before the Israeli Supreme Court and those two decisions was essential in fine tuning and narrowly defining and narrowly implementing the targeted killing policy.
NNAMDIIn terms of sources, U.S. intelligence in the remote tribal areas of Pakistan has been, to say the least, problematic. Is it just inevitable that the current strategy will result in high collateral damage?
GUIORAAgain, because we are so dependent on information gathering the sources, but there are obviously different mechanisms to gather information. One is human sources. One is signal intelligence, which is intercepting various, you know, phone conversations and emails and so on. And at the end of the day, the intelligence community has to put together some kind of a sophisticated and complex jigsaw puzzle. But you used a term earlier which is unfortunately the reality that some sources clearly have an agenda.
GUIORAAnd the intelligence community's responsibility is to determine as much as possible that the sources who are being relied on are agenda free with the understanding that -- I don't know if the word is inherent but almost inherent to the process that obviously many sources clearly have an agenda. And so what you're trying to do as quickly as possible is to gather as much information as possible from a wide variety of sources. What must be done is to corroborate all the information before the determining whether or not indeed the information received justifies, you know, a go order.
NNAMDIOn to the telephones. Here is Caroline in Arlington, Va. Caroline, you're on the air. Go ahead, please.
CAROLINEHi. Thank you for taking my call. I was hoping your guest could comment more on the Israeli use of drones in Gaza. There has been extensive reporting by The Washington Post and New York Times describing that it's more or less an open air prison. So no Israeli boots are on the ground. Therefore, by international law, they don't to provide certain services or benefits. But they occupy the air. Therefore, the children are becoming psychologically damaged by this constant presence of drones in Gaza. Thank you.
NNAMDIIs that something you would like to comment on, Amos Guiora?
GUIORAWhat I only say in the context of the conflict between Hamas, sitting in Gaza, and Israel, whether or not drones are in the air or not, what is essential in understanding this particular paradigm is the, I think, you know, question that confronts everybody involved. And it is, how you do minimize the firing of (word?) Guard missiles from Gaza into Israel, raise significant self-defense questions. But that's point A.
GUIORAPoint B, obviously, hereto, whatever self-defense measures are implemented must be done in accordance with international law and is going to result in target killing by drone, again, going back to the model I mentioned earlier about -- with respect to person-specific and an immediate threat posed by particular individual.
NNAMDIThank you very much for your call, Caroline. Here is Bob in Oakton, Va. Bob, you're on the air. Go ahead, please.
BOBKojo, if the United States has engaged in a lawful conduct of war, that must be done by the uniformed military service branches of the Armed Forces of the United States. If the Central Intelligence Agency is doing it, it is not lawful conduct of war. It is illegal. And if they are targeting people for killing, it is murder.
NNAMDII don't know the extent to which Amos Guiora has any expertise in that aspect of U.S. policy, but he may have an opinion, Amos Guiora.
GUIORAI would only say, with respect to the gentleman who's on the line, that I use the word in accordance with international law. We're not at war. War cannot be between states and a non-state actor, and al-Qaida -- parentheses -- whatever al-Qaida means today is not a state. So we're not at war. We are in some kind of a conflict.
GUIORAThere's no doubt that the CIA and I imagine other civilian agencies are also engaged in this conflict along with the military. I think from the president's perspective, as far as one can tell based on, you know, media reports from your colleagues, both the military and the CIA are involved in the targeted killing policy. I'm not sure there's a problem with that, with one exception. It goes to accountability.
GUIORAAnd one of the concerns that has been justifiably raised by some is, if the CIA is exclusively or solely engaged in this and not the military, then the question is, who's really monitoring the CIA in the context of accountability? I think that's a legitimate question to be asked. But in terms of CIA and the military involvement, I think that's just the reality of operational counterterrorism.
NNAMDIBob, thank you very much for your call. What are your recommendations on how to make the administration's targeted killings doctrine as, well, lawful as possible?
GUIORAI think my number one recommendation to the administration would be to totally redo this memo and to narrowly define imminent threat to highlight and emphasize the need to target person-specific counterterrorism, direct participant narrowly defined, legitimate target narrowly defined and to articulate clearly what are the decision-making trees involved in the process.
GUIORAI'm a firm believer in transparency. I very much supported the ACLU's lawsuit from last year with respect to the transparency of this policy. I don't think there's anything to hide here. And I think at the end of the day, the number one responsibility is to give commanders a memo that clearly articulates to them the limits of state power.
GUIORAWhat this memo has done has articulated a paradigm of an expansive view of state power in the context of international law, morality in armed conflict, effectiveness, and the court of international opinion -- a paradigm where state power is broadly, very broadly defined -- leads, at the end of the day, I think, to a slippery slope the concerns about immorality and significant concerns about illegality.
GUIORAFrom a commander's prospective, a memo like this is deeply troubling. I take it back to how I began referencing the Bybee Memos. From the prospective of interrogators at the time, interrogators clearly wanted specific guidelines, specific criteria as to the limits of interrogation. That paradigm is absolutely relevant to this paradigm.
NNAMDIAnd finally this, what relationship do you see, if any, to how this white paper is crafted, how this policy is crafted to the responses to drone strikes where they occur? It has often been said that these drone strikes create masses of anti-American anger and ultimately new waves of anti-American terrorists. What's the relationship, if any, between that phenomenon and how the policy is seen to be interpreted?
GUIORAThere's been some pretty compelling research on scholarship by Professor Kaplan at Yale University which has looked at the effect -- the blowback effect in the context of what happens after a targeted strike. Does it lead to an increase in terrorism? I think Professor Kaplan's work is extremely important to look at it. It does raise legitimate concerns.
GUIORAAnd the context of combining your question, Professor Kaplan's research and this memo, if you're expanding the pool of collateral damage, then I think you are expanding the possibility of a blowback attack, which I think from the prospective of terrorism, counterterrorism, is exactly the opposite of what should happen.
GUIORAAnd to that end, not to repeat myself, a person-specific counterterrorism policy minimizes collateral damage. The truth of the matter is that the other side, more often than not, understands why particular people are killed. They do not understand instances of widespread collateral damage.
NNAMDIAmos Guiora is a professor of law at the University of Utah and author of the upcoming book "Legitimate Target: A Criteria-Based Approach to Targeted Killings." He served for 19 years in the Israel Defense Forces where he gave legal advice on targeted killings. Amos Guiora, thank you for joining us.
GUIORAThank you so much for having me.
NNAMDIWe're going to take a short break. When we come back, video portraits of people who make up Washington's network. I'm Kojo Nnamdi.
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