How to Make A Kill-List

Gregory McNeal
Monday, February 25, 2013, 7:05 AM
Thanks to Lawfare for hosting me again.  I enjoyed my last visit, when I wrote about the U.S.

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Thanks to Lawfare for hosting me again.  I enjoyed my last visit, when I wrote about the U.S. military’s collateral damage estimation process, and I especially appreciated the helpful feedback (and in some cases, resources) I received from military and intelligence professionals and other thoughtful commentators.  For this round of guest posts I will focus on the kill-list creation process.  These posts are based on a massively updated version of the collateral damage estimation paper.  That paper is now called “Kill-Lists and Accountability” and will be available in SSRN on March 1st.  Just like the earlier version of the paper, it builds on government documents, training documents, military doctrine, reports in newspapers and non-fiction books and field interviews and observations.  Please note, much of what will appear in the blog posts are drawn directly from the article linked above, as such I’m not including footnotes or sourcing, they can be found in the article.


Much has been written lately about how to hold government officials accountable for targeted killing decisions.  A central part of that discussion has been questions about the process by which individuals find themselves on a kill-list, and what criteria is used in making such determinations.  The reality is that when the United States government kills people on traditional and non-traditional battlefields — and it does so on a near daily basis — bureaucrats play a key role in the killings. America's bureaucrats kill with amazing efficiency. They wield the nation’s strengths in technology, surveillance and reconnaissance and leverage those strengths through multiple levels of specialized analysis.  Dozens, perhaps hundreds of people make incremental contributions to a well-oiled killing machine, ensuring that by the time a target shows up in the cross-hairs of an operator he can rest assured that the target is worth killing.  Of course, with so many people involved in the kill-chain, somewhere along the way mistakes will inevitably happen.  But the process point remains --- the operator sits at the tip of a long analytical spear, with analysis that is so robust that he and the bureaucrats assisting him can focus most of their attention on preventing incidental harm to nearby civilians and civilian property (so called "collateral damage").  Napoleon once remarked “c’est la soupe qui fait le soldat” which translated means "an army marches on its stomach.”  Today’s armies can only fight after a hefty helping of bureaucratic analysis.


Many have already analyzed the potential legal rationales offered by the U.S. government in support of its targeted killing campaigns (the subject of Part I of the paper), therefore let me just offer this summary with regard to categories of targets.   There are three basic categories of targets who might find their way onto a kill-list: (1) Targets who fall within the AUMF, and its associated forces interpretations [AUMF Targets], (2) targets who fall within the terms of a covert action finding [Covert Action Targets], and (3) targets provided by allies in a non-international armed conflict in which the U.S. is a participant. [Ally Targets or derisively “side payment targets.”]   These categories will oftentimes overlap, however there also may be circumstances where a target rests exclusively within one category.  How to categorize a particular target will depend on detailed legal, factual, and diplomatic analysis conducted on a case-by-case basis by bureaucrats.


It is not surprising that the creation of kill-lists is a matter of popular debate and scholarly commentary.  Since World War I, military and civilian personnel have compiled target lists for bombing.  And since the inception of airpower, various theorists have argued over what type of target is proper, oftentimes debating the second and third order effects of striking certain targets.   Thus while controversy over targeting decisions is not new, what is new are the levels of precision and accuracy now possible in modern air strikes.  New technology has created an expectation about accuracy and has led to the politicization of air delivered weapons.   Concomitantly, as the accuracy of weapons has increased, the demand for intelligence and for accountability with regard to intelligence based decisions has also dramatically increased. It is in this context that the United States government has created kill-lists.  And because killing the wrong person may lead to serious consequences, these lists are vetted through an elaborate bureaucratic process that allows for verification of intelligence information prior to the placement of a person on a kill list.   The United States government’s decision that killing terrorists is one way of achieving some of the nation’s counterterrorism goals raises a host of questions.  Who specifically should be killed?  And if multiple people are to be killed, how can the military and the CIA sort out the key targets from the less important ones?  How does the United States ensure that killing someone will have an impact on the terrorist organization?  What about the political and diplomatic consequences that might flow from a targeted killing?   Who approves adding names to a kill-list and by what criteria?  These questions are answered in a heavily bureaucratized target development process that I’ll explain over the course of my next few posts.


The process of developing names for the list is initially delimited by the categories of individuals who may be targeted.  Those limits are established by the law of armed conflict, which prohibits the targeting of civilians except those who are members of an organized armed group or those who are directly participating in hostilities. Because direct participation in hostilities is a fleeting, time bound categorization, the only criteria by which an individual would likely be added to a kill-list would be if they fall into the category “members of an organized armed group.” While seemingly simple, the term “members of an organized armed group” has been the subject of extensive debate. First, there are open questions as to what particular groups count as “organized armed groups.” Second, as a matter of law, what members of an organized armed group are targetable? Many in the international community reject the idea that members of an organized armed group are always targetable based merely on their membership in that group.  Rather, they believe that for a member of an organized armed group to be always targetable requires that member have a “continuous combat function.”  That term as described by the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities (DPH study) refers to those individuals whose “continuous function” within the group “involves the preparation, execution or command of acts or operations amounting to their direct participation in hostilities.” It is critical to note that the U.S. and many international law experts do not subscribe to the DPH study’s CCF interpretation. They reject it because it creates different standards for regular armed forces---who are always targetable based on their status---and organized armed groups, for whom based on this standard only some of their members would be always targetable based on their status. Under the U.S. approach, all that is needed to target an individual is sufficiently reliable information that the person is a member of the organized armed group (Taliban, al Qaeda, associated forces). This differs from the ICRC interpretation which would require the U.S. to know that person’s function before attacking him. This is an important and fundamental distinction for any debate about targeted killings.  The U.S. claims the authority to target persons who are members of organized armed groups, based merely on their status; in so doing the U.S. is not just considering planners or commanders as potential targets, but all members of enemy groups. This may mean that an outside observer who does not interpret the law as the U.S. does may see the killing of a person who was placed on a kill-list as an unlawful killing that violates IHL as many countries interpret it, whereas the U.S. may see a particular killing as completely lawful. Both parties may be acting in good faith, but merely interpreting the law differently. In light of these differing legal interpretations, it is critical that in any debate about targeted killing, participants clearly specify what law they are applying and what interpretation of that law they are applying to any given factual circumstance.


While law delimits the categories of persons who can be killed, in practice, developing kill-lists looks far beyond law to questions about who a particular target is, and what is the accuracy and currency of the supporting intelligence. To develop names for the list, bureaucrats leverage intelligence analysis from experts spread across the government's civilian and military agencies, looking at enemy organizations and their members.  However, analysts are not simply looking to create a kill-list based on membership, rather they are attempting to determine the effect that any particular targeted killing operation will have on enemy groups writ large. In other words, their focus is not merely on the direct and immediate military advantage that will flow from the destruction of the target; instead, they are also looking at the long-term impact of a particular operation. The process is an open-ended and recursive one in which national security bureaucrats identify enemy groups plus individuals within those groups, and they assess how the immediate death of an individual may create broader network effects. Admittedly, this means that if the U.S. is starting with fairly broad legal authorities, which are filtered through a fairly broad targeting process in which eventually, every person looks like he making some contribution to enemy activity and is therefore potentially targetable. Hence the concern that there are no limits to the U.S. war effort, and the further concerns that the U.S. appears to some to be killing mostly low level “foot soldiers.”  The concerns are understandable, and while it’s true that under the U.S. view, all members of an organized armed group may be placed on a kill-list, in practice not all of them will actually end up on one.  Rather, only those individuals who are of sufficient value to the enemy organization will be placed on a list.  Which begs the question, what low-level people are worth adding to a kill-list? Bomb makers?  Couriers?  As various organizations have reported, it's not just higher profile individuals like Al Aulaqi who have found themselves the target of an attack; other individuals deemed low level or insignificant by outside commentators, have also been attacked.  This is the case because the effects sought by killing are not merely the immediate effect of eliminating a person, but also the second and third order effects such as pressuring, desynchronizing, and debilitating the effectiveness of terrorist networks.  It is in this context that we need to turn our attention to the question: How does the government determine “who’s worth killing?”


Resolving who should be killed is a difficult task because at the organizational level it may be unclear which groups and persons are sufficiently associated with al Qaeda or the Taliban to come within the scope of the various legal authorities authorizing lethal force.  Moreover, because al Qaeda and associated forces are more akin to social networks than hierarchical organizations, the question of who within an organization is worth killing is also difficult to assess from outside the intelligence community. Nonetheless, by understanding the process analysts follow for determining who may be killed, we can begin to answer some of the questions that scholars have raised regarding the wisdom of targeted killings. For example, it is the job of national security bureaucrats to ask whether killing someone will be effective at disrupting organizations. It is also their job to ask whether the right people are being killed, and whether there will be blowback or other repercussions from a targeting decision. When commentators question whether targeted killings are effective, and whether the targeted killing policy is the right one, they are asking a question that could in part be answered by looking at the bureaucratic procedures associated with killing particular individuals. When commentators wonder if the U.S. is achieving short term goals while losing the long war, they should recognize that to best answer that question, transparency regarding the bureaucrat’s assessment (or process of assessment) as to whether the deaths of those persons on a kill-list will further national strategic interests is what is needed. In short, the question of whether targeted killings are effective is one that is answered by analysis performed by national security bureaucrats, and how to hold those bureaucrats accountable is the central issue in the accountability debate. Inside the bureaucracy, analysts approach the question “Who’s worth killing?” by viewing enemy organizations as systems and social networks.  Systems analysis means they will analyze variables such as whether an individual is critical to the group he is a member of, looking at factors such as the individual’s value, ability to be replaced, time it would take to replace that person, and what that person’s contributions are to the enemy organization.  Taken together, these concepts all relate to the effect that attacking a target will have on the enemy group's war-fighting capability.  It is important to note that these operative principles mean that an individual may be critical to an organization, despite being a low level individual. A hypothetical can help illustrate these concepts.  Suppose an analyst would like to place a bomb maker on a kill-list, that bomb maker's criticality will be measured by the four factors outlined above (value, depth, recuperation, capacity).  The value of the bomb maker will be determined by analyzing how killing him will impact the group's ability to conduct operations. The amount the enemy's operations are disrupted by the particular targeted killing will depend on the depth of the enemy's bomb-making roster. So, if this bomb maker is one of ten similarly-skilled bomb makers, an analyst might note that this organization is deep on bomb making talent and the disruption in short-run bomb-making capacity will be short lived. However, just because another bomb maker currently on the roster quickly replaces the target, does not mean that the enemy organization hasn't suffered. The long-term effects on the organization will require an estimate of how long it will take the enemy to regain its functional capability, in this example how long it will take the organization to go from nine bomb makers back to the ten they started with?  It may be that bomb makers take a long time to train, or the frequent killing of their kind may deter prospective bomb makers. An analyst making a determination about the criticality of a target will consider all of these factors. But these are just basic targeting concepts that feed into the kill-list creation process.  In my next post I will sharpen our focus a bit by discussing networked based targeting techniques and in the post after that I will introduce the accountability paper trail associated with the kill-list creation process. This post is Part 1 of a 7 Part series based on the article Kill-Lists and Accountability

Gregory McNeal is a professor at Pepperdine University. He is a national security specialist focusing on the institutions and challenges associated with global security, with substantive expertise in national security law and policy, criminal law, and international law. He previously served as Assistant Director of the Institute for Global Security, co-directed a transnational counterterrorism grant program for the U.S. Department of Justice, and served as a legal consultant to the Chief Prosecutor of the Department of Defense Office of Military Commissions on matters related to the prosecution of suspected terrorists held in the detention facility in Guantanamo Bay, Cuba.

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