Professor Guiora’s article in Foreign Policy

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JEB SHARP: One tactic Israel has used against Hamas in Gaza is the targeted killing of militant leaders. That’s a tactic the United States has used too against suspected terrorists in other parts of the world. We’ve heard recently about CIA plans to conduct targeted killings of senior Al-Qaeda members. Those plans were never used before CIA director Leon Panetta cancelled them last month. Amos Guiora was a legal advisor to the Israeli defense commander in Gaza from 1994 to 1997. In that capacity he gave legal advice on targeted killings. He says there are several legal and moral complexities to consider.

AMOS GUIORA: The most important aspect of targeted killings to understand is what I call a four-part analysis which requires us to think about international law; questions of morality; how we gather intelligence; and also how we determine effectiveness. Because at the end of the day what we’re talking about is the dilemma of the decision maker that the decision maker being the commander. He needs advice but at the end of the day it’s his call. But there are critical issues that go into that decision making and in order to make the most reasoned and cautious decision the commander needs to understand the limits of power. He needs to respect the limits of power. But he also needs to understand that operational counter terrorism requires making those very difficult decisions.

SHARP: The idea of a targeted killing is that one person is targeted but the reality is often that civilians get killed too. When you’re thinking about the issue of what makes a targeted killing legal how do you reconcile that with the fact that killing innocents is still wrong?

GUIORA: That’s an outstanding question. So first of all, international law talks about collateral damage. But it says that the commander must make every reasonable effort to minimize collateral damage which translates crassly and roughly into an understanding of the forefathers of international law that when you’re engaged in operational counter terrorism there’s always a chance that innocent civilians will be injured or killed. The requirement of the commander is obviously to minimize that. Nowhere does it say that there can be no loss of life amongst innocent civilians. That said it is clearly one of the considerations or calculations of making the decisions. You know the hit will be done in such a way that the person will be in that particular moment not surrounded by innocents. Obviously there clearly have been examples where the target killing has gone forward and as a result of which innocent civilians were killed and then that obviously raises important legal and moral questions.

SHARP: You are dealing with a military program aimed at stopping suicide bombings but here in the US now we’re talking about a CIA program targeting terrorists overseas. How are these situations different from each other?

GUIORA: Well I think if we think about the CIA program that the first question we would have to ask ourselves is whether or not it’s future preventive, predicated or retribution predicated. I would argue, without knowing all the facts of the CIA program, but I would suggest that if the plan was retribution based killing somebody for an act done in the past without any intelligence information suggesting future activity that kind of program would not meet my four-part test. On the other hand if the program was intended to prevent future acts of terrorism based on intelligence information that reliable, credible, viable, and valid then I would say that would meet international law standards. So the fundamental question which needs to be asked is whether or not the program is future based or past based.

SHARP: Why do you think CIA director Leon Panetta shut the American program down?

GUIORA: As far as I can tell from you know what one reads and what one hears because I think there was concern exactly on that issue was that past or future what kind of intelligence had been gathered and whether it really was preventive or more retribution based. And I think maybe, again based only what I’ve been able to read, that there was maybe concern as to whether or not congress had been fully kept abreast of the program which raises other equally significant questions in the American paradigm in terms of checks and balances and separation of powers in terms of when does the executive have to confer with the congress.

SHARP: Yeah that’s interesting that the controversy seems to focus on the secrecy of the program and yet there are all these larger issues to discuss. I mean what do you think is the main issue that should discussed in reference to this apparent program?

GUIORA: Well I think that almost eight years after 9/11 the time has come for the American public to begin – underline the word begin – having a serious discussion about what are America’s counter terrorism policies. I would suggest that eight years later we really haven’t had that discussion. We’ve had maybe discussions about tactics but I don’t think we’ve had the kind of sophisticated candid discussion about strategy and policy. And I think you’re absolutely right the response seems to be to cancel the program because congress wasn’t briefed or congress is upset because congress wasn’t briefed. That’s not the issue. And we’ve never really engaged in that very, very difficult discussion about what exactly are we trying to do and what are the limits of what we’re trying to do.

SHARP: Amos Guiora is a professor of law at the University of Utah. He served in the Israeli defense forces judge advocate general’s core for 19 years. Thanks so much for talking to us.

GUIORA: Thank you so much for having me.

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