Israeli Legal Expert: Lack of Judicial Oversight in Targeted Killings a ‘Recipe for Disaster’

Amos Guiora gave legal advice on targeted killings to the Israeli Defense Force in Gaza in the 1990s.

He’s troubled by the vague language in the leaked Justice Department memo (PDF), and tells anchor Marco Werman why he thinks the lack of judicial oversight in targeted killings is a ‘recipe for disaster.’

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Marco Werman: Amos Guiora gave legal advice on targeted killings to the Israeli Defense Forces in the 1990s. Today he is a professor at the University of Utah where he writes and lecturers about counter-terrorism and law. Amos, you’ve read through the leaked Justice Department memo that contains guidelines for the targeted killings of US citizens abroad. So compare this for us with the Israeli approach, which you know pretty intimately. Are the courts a part of a decision-making process there?

Amos Guiora: In Israel because of the High Court of Justice, which is a branch of the Supreme Court, there is very engaged and robust judicial review of the executive decision-making process. That’s in direct contrast to here in the United States, where frankly there really is, in context of something like the drone policy there is no robust judicial review. And so when the Israeli Supreme Court a number of years ago ruled an Israeli targeted killing policy, it very much set down guidelines criteria for the Israeli executive and its decision-making process. And that frankly is in direct contrast to the American system. And if you read through this memo, well if you get into the details of it, in articulates, establishes a paradigm that from my perspective is not really rooted in the rule of law, not really reflective of morality in armed conflict, and raises some pretty important questions about its effectiveness.

Werman: So get into the details then, because from what I read of the Israeli decision, they won’t attack civilians unless the civilians for such time as they take a direct part in hostilities, then they will. So how does that differ from the US construct?

Guiora: It’s probably the wrong expression, but you hit the nail on the head. The two most important sentences in the DOJ memo suggest or articulate that there need not be clear evidence that a specific attack on US persons and interest will take place in the immediate future. And that’s how imminence is defined, meaning there really is no imminence requirement, and that you’re absolutely right. The DOJ…

[crosstalk]

Werman: So how does Israel define imminent threat then?

Guiora: Imminent threat is defined as imminent threat, that’s an attack that is going to occur, that the plan is well under way, and it’s not abstract, nor ephemeral, and that you need to have clear evidence that it’s a specific attack. It’s not vague. And this DOJ memo, not to wear too much the legal hat, but it’s overbroad with broad breadth and an amorphousness in the context of a clear lack of specific guidelines and criteria. The moment that it says–and I’m reading from the memo–does not require the United States to have clear evidence that a specific attack on US persons and interest will take place in the immediate future. Probably the best way to put this in the colloquial, and I apologize for the expression, it’s carte blanche. And there’s nothing more dangerous in operational counter-terrorism than to give a commander carte blanche.

Werman: Is it possible Amos Guiora that there is a strategic advantage to the ambiguity in the Department of Justice memo? There are scenarios that a country just can’t anticipate like of 9/11.

Guiora: Right. I think that this ambiguity and vagueness, I understand it. I have sat at the table of operational counter-terrorism for 20 years. That said, my fear is that we’ve opened the flood gates extremely broadly in terms of the very loose definition of legitimate target/direct participant. The business of counter-terrorism is an ugly business. And the moment that commanders have been given this extremely broad definition by the Administration through the DOJ memo, my great concern is that we’re going to proceed forward in a targeted killing or drone policy paradigm that is not predicated on rational-based decision making, devoid of criteria, with no guidelines and no self-imposed restrains. I find that deeply disturbing.

Werman: And generally speaking Amos Guiora, what’s your take on the morality of targeted killing, target assassination?

Guiora: Targeted killing, I don’t call it assassination because assassination according to international law is of a political leader. Political leaders aren’t being targeted here. Terrorists are being targeted. I think that targeted killing when done, predicated on rational-based decision-making was very strict, criteria and guidelines in the context of self-defense reflects morality in armed conflict. But, a paradigm which is so broad in terms of no clear evidence, that may not take place in the immediate future, I would suggest that this memo morphs into that disturbing gray area where morality crosses into the line or sphere of immorality.

Werman: Amos Guiora, thank you very much for your thoughts on this.

Guiora: It’s absolutely my pleasure, any time.

Werman: Amos Guiora, a legal expert on targeted killing at the University of Utah.

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