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

For almost a decade, the United States has deployed unmanned aerial vehicles, or “drones,” to kill targeted members of Al Qaeda and the Taliban. Central Intelligence Agency (CIA) drone strikes in Pakistan have, in particular, stirred strong debates over the legality of such actions. Some commen-tators insist that these strikes are legal under international humanitarian law (IHL) or as a matter of self-defense. Others insist that the United States’ targeted killing amounts to murder.It is critical for the law to determine how to control killer drones and the future of warfare. As technology evolves, drones will develop sharper senses and become more precise and lethal. The power to use drones to find and kill specific human targets—and states’ temptation to use (and abuse) that power—will grow over time. On other fronts, drones may become fully automated, and their use in surveillance may spread along the borders with Canada and Mexico and into the U.S. heartland.To rein in the killer drones, this Article looks to foundational IHL principles to develop limits on the CIA’s campaign in Pakistan and on the possible extension of that campaign to other countries outside the United States. In particular, this Article argues that IHL’s requirements of distinction and military necessity generally require the CIA to achieve a very high level of certainty that a targeted person is a legitimate object of attack before carrying out a drone strike. To capture this level of certainty, one might borrow the “beyond reasonable doubt” standard from the criminal law, the “clear and convincing” standard from civil law, or create some new phrase. Also, to honor the principle of precaution, 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. The results of these reviews should be made as public as consonant with national security. These controls are, in the language of IHL, “feasible precautions” for the remote-control weapons of the new century.The Article closes by considering whether targeting of U.S. citizens by the U.S. government should be subject to stricter due process controls than targeting of non-Americans—a point that also has stirred controversy. The Article concludes that, if the controls on targeted killing are not good enough for U.S. targets, they are not good enough for Pakistanis, Yemenis, Somalis, and others. The law can develop a set of standards to ensure that states use targeted killing, whether as part of an armed conflict or in self-defense, only against legitimate targets—no matter their citizenship.

The full text of this Article is available to download as a PDF.