'Don't ask, don't tell': secrecy, security, and oversight of targeted killing operations

Governments around the world have been targeting and killing individuals to prevent them from committing terror attacks or other atrocities. They use this method secretly, sometimes without even taking responsibility for such operations, and without making public most of the relevant information: who is being targeted and what are the criteria for targeting individuals, what evidence is used to make targeting decisions, and what procedures (if any) are adopted to identify mistakes or misuse of this method. Recently released documents, such as the U.S. Department of Justice Drone Memo (analyzing lethal operations against U.S. citizen Anwar Al-Aulaqi), the more general White Paper on targeted killings of US citizens, or the Report of the Israeli Special Investigatory Commission on the targeted killing of Salah Shehadeh, shed some light on otherwise highly secretive decision-making processes, thereby introducing to the public debate important information previously unavailable. At the same time, in revealing only a small amount of relevant information, they emphasize the thick veil of secrecy that still surrounds the discussions in this field. Moreover, the information that is available demonstrates the vague nature of the relevant rules; the security oriented implementation of these rules; and the inadequacy of current oversight mechanisms of targeted killing operations. These challenges to a process designed to take human lives emphasize the need to develop effective and independent accountability mechanisms, with powers to investigate high-level policymakers as well as operational-level decision makers. The paper proposes concrete solutions to the main weaknesses of the current legal framework: it narrowly (and clearly) defines legal terms such as ‘imminent threat,’ ‘feasibility,’ and ‘last resort’; it develops an activity based test for determinations on direct participation in hostilities; it designs an independent ex post review mechanism; and it calls for governmental transparency and meaningful oversight. Most importantly, it promotes a targeted killing policy that protects civilians from both terror and counter-terror attacks.