¹ Alex Strick van Linschoten and Felix Kuehn, “A Knock on the Door: 22 Months of ISAF Press Releases,” available at <https://www.afghanistan-analysts.net/uploads/AAN_2011_ISAFPressReleases.pdf> accessed November 4, 2011.

² See David Kretzmer, “Targeted Killing of Suspected Terrorists: Extra Judicial Executions or Legitimate Means of Defence?,” 2.16 Eur. J. Int’l. L. 171 (2005) 171–212; Steve R. David, “Fatal Choices: Israel’s Policy of Targeted Killings,” The Begin-Sadat Center For Strategic Studies Bar-Ilan University Mideast Security and Policy Studies No. 51; Orna Ben-Naftali and Keren Michaeli, “Justice-Ability: A Critique of the Non-Justiciability of The Israeli Policy of Targeted Killing,” 1(2) Journal of International Criminal Justice 368–405 (2003); Niles Meltzer, Targeted Killing in International Law (Oxford University Press, 2008); Edward Kaplan and Daniel Jacobson, “Suicide Bombings and Targeted Killings in (Counter) Terror Games,” 51q Journal of Conflict Resolution 5, 772–92 (2007).

³ Jordan Paust, “Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan,” 19 Journal of Transnational Law & Policy 2, 237, (2010); Mary Ellen O’Connell, Unlawful Killing with Combat Drones: A Case Study of Pakistan 2004–2009, Notre Dame Legal Studies Paper No. 09-43, available at <http://ssrn.com/abstract=1501144> accessed November 3, 2011; Simon Bronitt (ed.), Shooting To Kill: The Law Governing Lethal Force In Context (forthcoming); Afsheen John Radsan and Richard Murphy, “Due Process and Targeted Killing of Terrorists,” 31 Cardozo Law Rev 405, (2009); Kenneth Anderson, Targeted Killing in US Counterterrorism Strategy and Law, available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415070&rec=1&srcabs=1349357> accessed December 12, 2010; Kenneth Anderson, “Predators Over Pakistan,” 15 The Weekly Standard 24, 26–34, (2010); Jane Mayer, “The Predator War,” The New Yorker, October 19, 2009, available at < http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer> accessed November 3, 2011; Geoffrey S. Corn, Targeting, Command Judgment, and a Proposed Quantum of Proof Component: A Fourth Amendment Lesson in Contextual Reasonableness, available at < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1762894> accessed November 3, 2011.

⁴ “‘Drones II’—Kenneth Anderson Testimony Submitted to U.S. House of Representatives Committee on Oversight and Government Reform, Subcommittee on National Security and Foreign Affairs, Second Hearing on Drone Warfare,” April 28, 2010, available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1619819&rec=1&srcabs=1561229> accessed December 12, 2010.

⁵ Harold Koh, “The Obama Administration and International Law,” Annual Meeting of the American Society of International Law Washington, DC, March 25, 2010, available at < http://www.state.gov/s/l/releases/remarks/139119.htm> accessed December 12, 2010.

⁶ Available at <http://www.washingtonpost.com/wp-dyn/content/article/2011/02/20/AR2011022002975.html?hpid=topnews> accessed February 20, 2011.

⁷ Charter of the United Nations, art. 51 (1945), available at <http://www.un.org/en/documents/charter/index.shtml> accessed November 3, 2011.

⁸ See the killing of Osama bin Laden.

⁹ Because my “hands on” professional experience is limited to targeted killing (as compared to the U.S. drone policy), I will refer to the policy as “targeted killing,” although the reader can view the terms as interchangeable, subject to the distinctions explained above.

¹⁰ Available at <http://www.guardian.co.uk/commentisfree/cifamerica/2011/aug/11/civilian-victims-cia-drones> accessed August 14, 2011.

¹¹ Available at <http://www.nytimes.com/2011/08/14/opinion/sunday/the-cia-and-drone-strikes.html?nl=todaysheadlines&emc=tha211> accessed August 14, 2011. For more information on the military’s attempts to limit noncombatant death, see Gregory McNeal, “Are Targeted Killings Unlawful? A Case Study in Empirical Claims Without Empirical Evidence” in this Volume, ch. 12.

¹² As legal advisor, my legal advice was requested on a 24/7 basis. My advice was based on interpretation of international law, Israeli statutes, Israeli Supreme Court precedent and an assessment whether the Supreme Court, sitting as the High Court of Justice, would, based on robust and rigorous judicial review, intervene in the commander’s decision. The Supreme Court sitting as the High Court of Justice (HCJ) is empowered to issue temporary restraining orders and to hear petitions filed on behalf of individuals—including Palestinian residents of the West Bank and Gaza Strip—claiming that an executive branch decision will infringe on or take away their rights. The advice, rooted in the rule of law, required a balancing of legitimate individual rights with equally legitimate national security considerations. On the role of robust judicial review, see Aharon Barak, “A Judge on Judging: The Role of a Supreme Court in a Democracy,” 116 Harv. L. Rev. 16 (2002); Amos N. Guiora and Erin M. Page, “Going Toe to Toe: President Barak’s and Chief Justice Rehnquist’s Theories of Judicial Activism,” 29 Hastings Int’l & Comp. L. Rev. 51 (2005).

¹³ Aharon Barak, “A Judge on Judging: The Role of a Supreme Court in a Democracy,” supra n. 12.

¹⁴ The term “criteria” is used in the common-sense understanding of the term. Criteria help guide decisions by providing a test that captures the relevant reasons for an outcome. In that sense, criteria are neither standards nor rules as those terms are understood in the field of jurisprudence. However, criteria are closer to standards than they are to rules, which are specific and easy to apply without exercising significant discretion. In the classic example, a 65-mph speed limit is a rule, whereas a standard might require the motorist to not drive dangerously or to drive at a prudent speed. The criteria discussed in this chapter provide a specific test, but they cannot be mechanically applied like a numerical speed limit.

¹⁵ Vicki L. Sauter, “Intuitive Decision Making,” Communications of the ACM, June 1999, Vol. 42, No. 6; Eric Chaffee, “Always Do the Right Thing,” available at <http://lawreview.wustl.edu/commentaries/always-do-the-right-thing-ethical-intuitionism-and-legal-compliance/> accessed August 1, 2011, referencing G.E. Moore, the “father of ethical intuitionism”; Kurt Matzler, Franz Bailom and Todd Mooradian, “Intuitive Decision Making,” MIT Sloan Management Review, Vol. 49, No. 1, Fall 2007.

¹⁶ Vicki L. Sauter, “Intuitive Decision Making,” supra n. 15.

¹⁷ See Amos N. Guiora, “Targeted Killing As Active Self-Defense,” 36 Case W. Res. J. Int’l L. 319 (2004); Amos N. Guiora, “Determining a Legitimate Target: The Dilemma of the Decision Maker,” 47 Tex. Int’l L. J. (forthcoming, 2011).

¹⁸ Letter from Daniel Webster, U.S. Secretary of State, to Lord Ashburton, Special British Minister (August 6, 1842) reprinted in 2 J. Moore, Digest of Int’l Law § 217, 409 (1906).

¹⁹ Available at <http://www.pmo.gov.il/PMOEng/Communication/Spokesman/2011/02/spokeshchade270211.htm> accessed March 8, 2011.

²⁰ Aharon Barak, “The Role of the Judge in a Democracy,” Justice In The World Magazine No. 3, available at <http://justiceintheworld.org/n14/cover.shtml> accessed Novermber 3, 2011.

²¹ The Public Committee against Torture in Israel vs. The Government of Israel (HCJ 769/02).

²² When we spoke regarding his decision-making process—in the face of clear and lawful operational orders—I was struck by how the commander had internalized Barak’s philosophy (although he did not phrase it in those words) and how it directly impacted his operational decision-making.

²³ Stephen R. David, “Reply to Yael Stein: If Not Combatants, Certainly Not Civilians,” 17 Ethics & Int’l Aff. 138, 139 (2003).

²⁴ The case officer is a civilian in the intelligence community who is the link between the commander and the source.

²⁵ These are the questions I asked in the scenario above—a real situation.

²⁶ In the scenario above (the facts are necessarily fudged), my advice to the commander was that the facts—as presented—did not justify a targeted killing. I was not convinced that information regarding the person in the crosshairs sufficiently matched the description provided to the commander. The information about the individual unequivocally indicated that the danger posed to national security was palpable. Although I was convinced that detention was unfeasible, I was not convinced—ultimately because of insufficient information—that the individual in the commander’s scope was the same one referenced by the case officer. I had no reason then—and have no reason 15 years later—to doubt that the commander provided me with the information conveyed to him by the case agent. Based on my professional experience with the commander, I was—and am—convinced that he was an honest conveyer of the information presented to him. The circumstances—3:00 am, extraordinary tension and responsibility inherent to the decision that had to be made—unquestionably impacted our conversation, which was fast, direct, devoid of any unnecessary commentary, and business-like. Though my questions (perhaps endless from his perspective) impacted the decision-making process, I felt the answers accurately reflected the commander’s situation and the realities of the operation.

²⁷ For additional material regarding check-lists please see Atul Gawande, The Checklist Manifesto (Metropolitan Books, 2009); Daniel Kahneman, Paul Slovic and Amos Tversky (eds), Judgment under Uncertainty: Heuristics and Biases (Cambridge Uuniversity Press, 1982).

²⁸ In this regard, the legal and moral standard for lawful military action is the guilty verdict issued by an Israeli military court in 1957 against members of the Border Police who carried out an order enforcing a curfew against field hands returning to their village when they did not have notice of the curfew. As a result, the Border Police killed 47 innocent Arab-Israelis. The court held the order was blatantly illegal and that a “black flag” should have been raised regarding both its inherent unlawfulness and the absolute requirement to disregard it; See <http://meretzusa.blogspot.com/2006/11/tom-segev-on-atrocity-at-kafr-kasem.html> accessed February 16, 2011; also <http://www.haaretz.co.il/hasite/spages/1026968.html> accessed February 16, 2011, Hebrew version—English unavailable. According to the court, the black flag standard imposed on soldiers the obligation to disregard a blatantly illegal order, even if issued by their commander.

²⁹ For more on the imminence requirement and its problems, see Russell Christopher, “Imminence in Justified Targeted Killing” in this Volume, ch. 9.