Harvard Professors' Proposed Legislation Would Authorize Targeted Killings

April 20, 2005

By Liz Aloi, Editor-at-Large
As part of the Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terrorism at Harvard University, Professor Philip Heymann of Harvard Law School and Professor Juliette Kayyem of the Kennedy School of Government have proposed the creation of legislation to authorize targeted killings. This proposal is part of a larger package of policy changes they recommend to confront America's security threats.
This proposal to authorize targeted killings would apply in the following hypothetical scenario: Imagine that the zone of active combat for our current "war on terror" includes the states of Afghanistan and Iraq. United States intelligence has word that John Doe, a key advisor and operative for the Al-Qaeda leadership, is hiding out in Yemen and is a short time away from launching a dirty bomb attack on United States. This legislation could authorize United States forces to kill John Doe, in Yemen. Professors Heymann and Kayyem argue that this is necessary for the sake of national security because foreign governments cannot be relied on to eliminate or turn over to the United States individuals who present a threat. Foreign governments may either not have control over the territory where a terrorist is operating or may simply not be friendly to America's cause.

Currently, both international and federal laws are unclear as to what conduct is permissible with regard to targeted killings outside of traditional zones of combat. Executive Order 12,333, which does not apply to a hostile state's military during a conflict, bans assassination by United States operatives, but it can be suspended by the President. The first manifestation of this ban was instituted by President Lincoln, and it originated with the work of Columbia Professor Francis Lieber at the time of the American Civil War. Provisions of international law, mostly notably Article 51 of the UN Charter, allow the United States to engage in acts comparable to targeted killings when the US is acting in self defense, but only with regard to an "armed attack."
Professor Heymann argues that Executive Order 12333, taken together with the self-defense provisions of international law, does not adequately protect United States interests within the paradigm of terrorism. The Heymann-Kayyem proposed legislation is very specific in its applicability. First, the authorization of targeted killing would not apply in zones of active combat. Zones of active combat include the (1) the theater of operations in connection with a declared war or armed conflict; (2) the occupied territory following an armed conflict; and (3)within a territory where the United States has been asked to assist in connection with the suppression of an armed insurrection or uprising.
The standards under this legislation for the use of targeted killing would be as follows. First, it must be justified as necessary to prevent greater, reasonably imminent harm or in defense against an imminent threat. Second, despite this justification, this legislation does not authorize the killing of United States citizens, nor any person found in the United States, nor any individual who has agreed to incapacitate those reasonably suspected of planning terrorist attacks on the United States. These exceptions are explicit because the killing of United States citizens, or persons on United States soil, is violative of multiple federal and state laws. Lastly, the President must approve every killing, and the findings leading to that approval must be provided to Congressional leaders.
If the United States government adopted this policy, it would not be the only nation to utilize targeted killings as a form of self defense. Israel authorizes such killings under similar circumstances to those outlined in the aforementioned proposal. The Israeli policy has received a mixed response in the international arena. Specifically, there is debate over whether or not it is a successful means of national defense.
The 9/11 Commission Report indicates that assassination has been considered a viable response to terrorist threats in the past. Still, any formal change in policy on this issue would be an about-face for the United States, who actively condemns the assassination of any type. Thus far no member of Congress has introduced legislation regarding targeted killing as a response to terrorist threats. There will no doubt be much public debate on this issue should the United States follow Professors Heymann's and Kayyem's recommendations and revisit our law on assassination.