Presidential Policy on Targeted Killing Released

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Pursuant to a court order obtained in litigation filed by the American Civil Liberties Union (“ACLU”), the United States Government has released a Presidential Policy Guidance (“PPG”) on direct action against individuals believed to be terrorists or terrorist threats outside the United States and outside specific areas of active hostilities.  This “direct action” can involve capture or targeted killing.  However, the importance of the document and its release focuses on the latter through the use of drones in areas falling outside of established war zones.  Indeed, there has been significant debate on the ethics, legality, and effectiveness of killing terrorists through the use of drones.  As such, this document provides illumination on the policy shift that occurred in 2013 which restricted and tightened he use of such force.

Interestingly, the document prioritizes capture as the best means for counterterrorism efforts.  This stands in stark contrast to the perspective many observers have had that both Bush and Obama administrations preferred targeted killing of terrorists rather than capture.  In any case, the policy in the 2013 PPG clearly expresses capture as preferred over lethal action.  But, there obviously will be situations where capture will not be possible.  In these situations, the PPG provides means by which to obtain authorization for sanctioned lethal action.

Initially, a department’s legal counsel must make a determination that authority exists to engage in lethal targeting.  Then, the identify and location of the terrorist must be near-certain.  Further, there must be near-certainty that non-combatants will not be injured or killed in the attack.

Our review of the PPG shall continue.