Are Targeted Killings Unlawful? A Case Study in Empirical Claims Without Empirical Evidence

Now available on SSRN is my newest piece, Are Targeted Killings Unlawful?  A Case Study in Empirical Claims Without Empirical Evidence.  In the piece I argue that critics of the U.S. policy of targeted killing by unmanned aerial vehicles (UAVs or drones) generally lack credible information to justify their critiques. In fact, in many circumstances their claims are easily refuted, calling into question the reliability of their criticisms.  I highlight some of the most striking examples of inaccurate claims raised by critics of the U.S. policy of drone based targeted killing. Specifically, I offer a much needed corrective to clarify the public record or offer empirical nuance where targeted killing critics offer only unsubstantiated and conclusory statements of fact and law.

Section I discusses the decision protocol used by the U.S. military before launching a drone strike, a process that goes to extraordinary lengths to minimize civilian casualties. Although this decision protocol was once secret, recent litigation in federal court has resulted in the release of extensive information regarding U.S. targeting protocols. An analysis of this information indicates that the U.S. military engages in an unparalleled and rigorous procedure to minimize, if not eliminate entirely, civilian casualties. Although independent empirical evidence regarding civilian casualties is hard to come by, it is certainly the case that statistics proffered by some critics cannot be empirically verified; their skepticism of U.S. government statements is not backed up by anything more substantial than generic suspicion.

Section II addresses the critics’ unsubstantiated claims about the legal, diplomatic and strategic results of drone strikes. Although the counter observations I raise do not, by themselves, demonstrate that targeted killings are morally or legally justified, they do however suggest that some of the moral or legal objections to targeted killings are based on empirical claims that are either dubious, impossible to verify, or just plain false.  For more on this issue, see my article Kill-Lists and Accountability.

Other contributors to the book Targeted Killing: Law and Morality in an Asymmetrical World (Oxford 2012) appear in the Table of Contents below:

INTRODUCTION Andrew Altman

PART I: THE CHANGING FACE OF WAR: TARGETING NON-COMBATANTS

1. Rebutting the Civilian Presumption: Playing Whack-A-Mole Without a Mallet? Colonel Mark “Max” Maxwell
2. Targeting Co-belligerents Jens David Ohlin
3. Can Just War Theory Justify Targeted Killing? Three Possible Models Daniel Statman
4. Justifying Targeted Killing With a Neutral Principle? Jeremy Waldron

PART II: NORMATIVE FOUNDATIONS: LAW-ENFORCEMENT OR WAR?

1. Murder, Combat or Law Enforcement Jeff McMahan
2. Targeted Killing as Preemptive Action Claire Finkelstein
3. The Privilege of Belligerency and Formal Declarations of War Richard V. Meyer

PART III: TARGETED KILLING AND SELF-DEFENSE

1. Going Medieval: Targeted Killing, Self-Defense, and the Jus ad Bellum Regime Craig Martin
2. Imminence in Justified Targeted Killing Russell Christopher
3. Defending Defensive Targeted Killings Phillip Montague

PART IV: EXERCISING JUDGMENT IN TARGETED KILLING DECISIONS

1. The Importance of Criteria-Based Reasoning in Targeted Killing Decisions Amos N. Guiora
2. Are Targeted Killings Unlawful? A Case Study in Empirical Claims without Empirical Evidence Gregory S. McNeal
3. Operation Neptune Spear: Was Killing Bin Laden a Legitimate Military Objective? Kevin H. Govern
4. Efficiency in Bello and ad Bellum: Making the Use of Force Too Easy? Kenneth Anderson

PART V: UTILITARIAN TRADE-OFFS AND DEONTOLOGICAL CONSTRAINTS

1. Targeting in War and Peace: A Philosophical Analysis Fernando R. Tesón
2. Targeted Killings and the Morality of Hard Choices Michael S. Moore
3. Targeted Killing and the Strategic Use of Self-Defense Leo Katz