Targeted killing is one of the most controversial topics in contemporary legal, ethical, and political discussion, and the literature on it has grown enormously over the past decade. Markus Gunneflo's Targeted Killing: A Legal and Political History is a scholarly and dispassionate contribution to that literature, focusing on U.S. and Israeli counterterrorism policy since the 1980s.
Among the major themes of the book are the ideas that “targeted killing is steeped in law from the outset” (p. 1) and that “the consistency with which decision makers have turned to law and to lawyers . . . is truly striking” (p. 233). Gunneflo contends that “both the concept and the practice of targeted killing depend entirely on the ability to distinguish between legal ‘targeted killing’ and extra-legal ‘political assassination’” (p. 1). Accordingly, he holds that “what is new and distinctive about Israeli and American targeted killing is the framework in which these killings appear as legal, legitimate and necessary as a matter of both domestic and international law” (p. 2).
Following Hobbes, Gunneflo points out that a fundamental responsibility undertaken by the modern, territorially-based state is to protect its citizens from violence. In Gunneflo's view, however, the provision of such protection entangles the state in a “double bind,” because “state protection entails violence against violence in order to control violence” (p. 7). Moreover, he thinks that the state's bind is tightened by the fact that we live “in an era that accepts no outside to legal authority” (p. 10). Additionally, Gunneflo notes that transnational terrorism places a strain on the global system of sovereign states, because one state's sovereignty poses a legal barrier to another state's efforts to protect its own citizens from terrorist threats emanating from the first state.
Although it is widely believed that the attacks of 9/11 led to a radical change of view within the U.S. government concerning the legality of targeting terrorists abroad, Gunneflo argues that post-9/11 developments “constitute a much less distinct break with the past than is usually perceived.” He regards the 1980s as “a largely neglected formative era for present-day American targeted killing practices, both in terms of law and policy” (p. 13). Gunneflo tells us that George P. Shultz, President Reagan's secretary of state, and Shultz's legal advisor, Abraham Sofaer, formulated a view of terrorism that would come to full flower in the post-9/11 era. Central to that view was the idea that the preemptive targeting of terrorists by the executive branch, without congressional authorization, was consistent with domestic and international law.
In his discussion of Israel, Gunneflo endorses the idea that the “practice of political assassinations carried out by pre-state Jewish self-defense groups [was] continued . . . within the state structure after 1948” (p. 45). Still, he claims that during the First Intifada the rules of engagement were not based on the law of war but rather “on the more restrictive legal principles for law enforcement” (p. 68). During the Second Intifada, however, Israel invoked the law of war and, in a 2002 legal case, according to the newspaper Haaretz, the government argued that terrorists are “illegal fighters who are not entitled to the protection of international law” (p. 75). The legal proceedings culminated in a 2006 ruling in which the Israeli Supreme Court (a) declared that Israel was in an international armed conflict with terrorist organizations, (b) classified terrorists as civilians not entitled to the protections of the law of war, and (c) held that Israel's domestic law required that targeted killings meet a proportionality test stricter than that of the law of war.
In Gunneflo's conceptual framework, the deliberate killing of terrorists by governments only becomes “targeted killing” once the governments formulate legal justifications for the killings. His main historical point is that such efforts at justification began in the 1980s. Gunneflo himself does not think that the proffered justifications work, but his reasons stem from certain general philosophical claims, rather than from any critical analysis of the specific legal arguments. Those claims derive, in part, from Walter Benjamin's idea that violence is “inherent in the rule of law” (p. 27) and, in part, from Carl Schmitt's criticisms of liberal constitutionalism.
One weakness of Gunneflo's analysis is that his discussions of Benjamin and Schmitt are entirely uncritical and fail to consider the counterarguments that defenders of the liberal rule of law can raise. Moreover, he does not seem to appreciate the extent to which governmental efforts at constructing a legal rationale for targeted killings were accompanied by attempts to ensure that the killings would not be subjected to the rule of law. These attempts included imposing a veil of secrecy around the killings and even around the very arguments that supposedly showed the legality of the killings.
The national security apparatus was intent on operating above the law in this matter, as it was, for example, in the use of torture at CIA black sites. Viewed from this perspective, the proffered legal justifications were not so much efforts to bring the rule of law to the killing of terrorists as they were part of a strategy to ensure that no one involved in the killings would ever be subject to criminal prosecution or civil suit. If all the other firewalls against legal liability were breached, these justifications would be trotted out.
Among the disputed questions about targeted killing is whether the Obama administration in its second term was more serious about subjecting targeted killing to international and domestic law than it had been earlier or than the previous administration had been throughout its tenure. Disappointingly, this book does not raise the matter, despite devoting an important section to “The American Targeted Killing Scheme after 9/11.”
The issue of targeted killing raises a host of thorny ethical and philosophical questions that remain outside the scope of this book, and for a more in-depth treatment of them one must turn elsewhere. Gunneflo, however, provides some important historical backdrop to these timely and pressing issues.
