¹ Associated Press, “Bin Laden’s Path To Public Enemy Number One,” Washington Post National Online (Washington, D.C., May 2, 2011), available at <http://www.washingtonpost.com/national/bin-ladens-path-to-public-enemy-number-one/2011/05/02/AFt0RGYF_video.html> accessed October 28, 2011.

² John Rollins, “Al Qaeda and Affiliates: Historical Perspective, Global Presence, and Implications for U.S. Policy,” Congressional Research Service (CRS) Report R41070, January 25, 2011, available at <http://www.fas.org/sgp/crs/terror/R41070.pdf> accessed October 28, 2011.

³ As noted by Rollins, ibid. at 5, the Muslim Brotherhood was “founded in 1928 in Egypt, and it has since spawned numerous Islamist movements throughout the region, some as branches of the Brotherhood, others with new names.”

⁴ The term “mujahadeen,” also sometimes spelled “mujahideen,” “mujahedeen,” “mujahedin,” “mujahidin,” and “mujaheddin,” refers to a military force of Muslim guerrilla fighters engaged in a “holy war” or “jihad,” available at <http://www.thefreedictionary.com/mujahedeen> accessed October 28, 2011.

⁵ Rollins, supra n. 2, 5.

⁶ Asaf Maliach, “Abdullah Azzam, Al-Qaeda, And Hamas,” Military and Strategic Affairs Vol. 2, No. 2 October 2010, at 83, available at <http://www.inss.org.il/upload/(FILE)1298359986.pdf> accessed October 28, 2011.

⁷ Ibid. at 83.

⁸ See, e.g., Omar Abdel Rahman, NY Times.com, available at <http://topics.nytimes.com/top/reference/timestopics/people/a/omar_abdel_rahman/index.html> accessed October 28, 2011.

⁹ Rollins, supra n. 2, 6.

¹⁰ Ibid.

¹¹ See, eg, Ayman Al-Zawahri, NY Times.com <http://topics.nytimes.com/top/reference/timestopics/people/z/ayman_al_zawahri/index.html?scp=1-spot&sq=Zawahiri&st=cse> accessed October 28, 2011.

¹² Ibid. at 3–4 for a listing of those attacks between 1993 and 2000.

¹³ Ibid.

¹⁴ Omar Waraich, “US Ambassador Stokes Anger in Pakistan Over Embassy Attack Claims,” The Independent, September 19, 2011, available at <http://www.independent.co.uk/news/world/asia/us-ambassador-stokes-anger-in-pakistan-over-embassy-attack-claims-2356871.html> accessed October 28, 2011, and see Elisabeth Bumiller and Jane Perlez, “Mullen Asserts Pakistani Role in Attack on U.S. Embassy,” New York Times, September 22, 2011, available at <http://www.nytimes.com/2011/09/23/world/asia/mullen-asserts-pakistani-role-in-attack-on-us-embassy.html> accessed October 28, 2011.

¹⁵ See, e.g., Greg Bruno and Eben Kaplan, The Taliban in Afghanistan, Council on Foreign Relations Backgrounder, available at <http://www.cfr.org/afghanistan/taliban-afghanistan/p10551> accessed October 28, 2011. See also CRS conversations with journalists and experts in Washington, D.C. December 2004–January 2005; James Risen and David Rohde, “A Hostile Land Foils the Quest for Bin Laden,” New York Times, December 13, 2004.

¹⁶ For an in-depth analysis of U.S. foreign policy under the Bush Administration, see Betty Glad and Chris J. Dolan, Striking First (New York: Palgrave Macmillan, 2004), cited with authority in Thomas Byron Hunter, “Targeted Killing: Self-Defense, Preemption, and the War on Terrorism,” Journal of Strategic Security (2009) 18. For the perspective of the co-author of the so-called “torture memos,” issued by the Department of Justice, regarding coercive/enhanced interrogation techniques, see John Yoo, “The Cost of Killing bin Laden,” Reuters, September 7, 2011, available at <http://blogs.reuters.com/great-debate/2011/09/07/the-cost-of-killing-osama-bin-laden/> accessed October 28, 2011.

¹⁷ See, e.g., Institute for National Security and Counterterrorism (INSCT), Syracuse University, “Case Study: Targeted Killing by the United States After 9/11,” insct.org, available at <http://insct.org/commentary-analysis/2011/05/04/case-study-targeted-killing-by-the-united-states-after-911/> accessed October 28, 2011.

¹⁸ Ibid. The NSC made a decision that all potentially sensitive targets were to be cleared by Secretary Rumsfeld himself. The authority for these decisions was eventually delegated to Gen. Tommy Franks, the CENTCOM Commander and Joint Forces Commander (JFC). See Michael W. Kometer, Command in Air War: Centralized vs. Decentralized Control of Combat Airpower, Doctoral Dissertation in Partial Fulfillment of Doctor of Philosophy in Technology, Management, and Policy, Massachusetts Institute of Technology, May 2005, 104, citing with authority William M. Arkin, “The Rules of Engagement,” Los Angeles Times, April 21, 2002. See also Bob Woodward, Bush at War (New York: Simon & Schuster, 2002) 166. The exception was “if CIA had bin Laden or al Qaeda leadership in its crosshairs,” according to Woodward.

¹⁹ For a glimpse into the U.S. targeted killing program and use of drones by the CIA, see, e.g., Nils Melzer, Targeted Killing In International Law (Oxford University Press, 2008), 41–2; A. John Radsan, “An Overt Turn On Covert Action,” 53 St Louis U. L.J. 485, 488–9, 539–42 (2009); Mohammed Khan and Douglas Jehl, “The Reach of War: Anti-Terrorism: Attack Kills a Top Leader of Al Qaeda, Pakistan Says,” N.Y. Times, December 4, 2005, 24; Josh Meyer, “CIA Expands Use of Drones in Terror War,” L.A. Times, January 29, 2006, A1; James Risen and Mark Mazzetti, “C.I.A. Said to Use Outsiders to Put Bombs on Drones,” N. Y. Times, August 21, 2009, A1; and Jordan J. Paust, “Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan” (December 8, 2009), Journal of Transnational Law & Policy, Vol. 19, No. 2, 237, 2010.

²⁰ Glen W. Johnson “Mortus Discriminatus: Procedures in Targeted Killing” (M.S. thesis, Naval Postgraduate School 2007) 22. Johnson notes that “[a]ll targeted killing guidelines should include directives on capture, collateral damage, mission approval, timing, and areas of operation.” Ibid. at 43.

²¹ Rollins, supra n. 2, 8. See U.S. Joint Publication (JP) 1-02, Department of Defense (DoD) Dictionary of Military and Associated Terms, April 12, 2001, as amended through July 31, 2010, 375, available at <http://www.dtic.mil/doctrine/jel/new_pubs/jp1_02.pdf> accessed October 28, 2011, for a definition of Unconventional Warfare: “Activities conducted to enable a resistance movement or insurgency to coerce, disrupt, or overthrow a government or occupying power by operating through or with an underground, auxiliary, and guerrilla force in a denied area. Also called UW.”

²² Transcript of Second McCain, Obama Debate, CNN Politics, cnn.com (October 8, 2008), available at <http://articles.cnn.com/2008-10-07/politics/presidential.debate.transcript_1_commission-on-presidential-debates-obama-debate-town-hall-format?_s=PM:POLITICS> accessed November 3, 2011.

²³ Ibid.

²⁴ See comment by John McCain on Barack Obama’s foreign policy in Mike Glover, ‘Obama Criticizes McCain for “Naïve” Foreign Policy,” USA Today (May 17, 2008), available at <http://www.usatoday.com/news/politics/2008-05-16-2967008008_x.htm> accessed October 28, 2011.

²⁵ See comment by Barack Obama on John McCain’s foreign policy, ibid.

²⁶ Transcript, supra n. 22.

²⁷ Ibid. at 13.

²⁸ “PTI, Pakistan ‘Epicenter’ of Terrorism, Says Mullen,” Times of India, January 13, 2011, available at <http://articles.timesofindia.indiatimes.com/2011-01-13/pakistan/28371105_1_safe-havens-kayani-ways-that-two-years> accessed October 28, 2011.

²⁹ “In Military Campaign, Pakistan Finds Hint of 9/11,” New York Times, October 30, 2009; Paul Cruickshank, “The Militant Pipeline,” New American Foundation Counterterrorism Strategy Initiative Policy Paper, February 2010, cited with authority in Rollins, supra n. 2, at 13.

³⁰ Nicholas Schmidle, “Getting Bin Laden,” The New Yorker August 8, 2011, available at <http://www.newyorker.com/reporting/2011/08/08/110808fa_fact_schmidle?currentPage=all> accessed October 28, 2011.

³¹ Ibid. See “9/11 and Al Qaeda: The Price of Victory,” LA Times August 29, 2011, available at <http://opinion.latimes.com/opinionla/2011/08/911-al-qaeda-homeland-security-spending-wardead.html> accessed October 28, 2011.

³² “How Osama Bin Laden Was Located and Killed,” New York Times, May 8, 2011, available at <http://www.nytimes.com/interactive/2011/05/02/world/asia/abbottabad-map-of-where-osamabin-laden-was-killed.html> accessed October 28, 2011.

³³ Ibid.

³⁴ “Osama Was Just 800 yards from the Pakistan Military Academy,” World News NDTV, ndtv.com, May 2, 2011, available at <http://www.ndtv.com/article/world/osama-was-just-800-yards-from-the-pakistan-military-academy-102890> accessed October 28, 2011.

³⁵ Schmidle, supra n. 30.

³⁶ At the time of this chapter’s writing there were 10 Unified Combatant Commands (UCCs) within the U.S. Department of Defense; four were organized as functional commands with specific capabilities like Special Operations, as in the case of USSOCOM, and six geographical commands with regional responsibilities like U.S. Africa Command (USAFRICOM). See U.S. Joint Publication JP 1–02, supra n. 21, at 487.

³⁷ Created in 1980 after the disastrous hostage-rescue mission in Iran, JSOC is part of the U.S. Special Operations Command. Over the past 10 years, JSOC units, which include Army, Navy, and Air Force elements operating jointly with each other and in interagency operations with other government agencies, have been essential to U.S. military efforts in Afghanistan and Iraq. Purportedly, in annexes to several presidential directives not available for public viewing, JSOC is designated as the official executive agent for counterterrorism worldwide. See, e.g., Marc Ambinder, “Then Came ‘Geronimo’,” The National Journal (May 5, 2011), available at <http://www.nationaljournal.com/magazine/practicing-with-the-pirates-these-navy-seals-were-ready-for-bin-laden-mission-20110505> accessed October 28, 2011.

³⁸ Schmidle, supra n. 30.

³⁹ Nick Davies, “Afghanistan war logs: Task Force 373—Special Forces Hunting Top Taliban,” The Guardian July 25 2010, available at <http://www.guardian.co.uk/world/2010/jul/25/task-force-373-secret-afghanistan-taliban> accessed October 28, 2011.

⁴⁰ Gretchen Gavett, “What is the Secretive U.S. ‘Kill/Capture’ Campaign?,” PBS Frontline, June 17, 2011, available at <http://www.pbs.org/wgbh/pages/frontline/afghanistan-pakistan/kill-capture/what-is-the-secretive-us-killca/> accessed October 28, 2011. See also Kevin Govern, “Resigned to Failure or Committed to a Just Cause of Justice? The Matthew Hoh Resignation, Our Current Politico-Military Strategy in Afghanistan, and Lessons Learned from the Panama Intervention of Twenty Years Ago,” Oregon Review of International Law, Spring 2011, Vol. 13, No. 1, 161–77. As an aside, Hoh resigned in 2009 because he felt U.S. tactics were only fueling the insurgency in Afghanistan.

⁴¹ Gavett, ibid.

⁴² Ibid.

⁴³ Note: operational code words are intended to not relate in any way to the action, and so they are quickly and easily identified and communicated. For a good article on the history of these code words, see Ed O’Keefe, “Why Is It Called ‘Operation Odyssey Dawn’?” Washington Post, March 22, 2011, available at <http://www.washingtonpost.com/blogs/federal-eye/post/why-is-it-called-operation-odyssey-dawn/2011/03/22/ABLaaFDB_blog.html> accessed October 28, 2011.

⁴⁴ See, e.g., Philip Sherwell, “Osama bin Laden Killed: Behind the Scenes of the Deadly Raid,” The Daily Telegraph, May 7, 2011, available at <http://www.telegraph.co.uk/news/worldnews/alqaeda/8500431/Osama-bin-Laden-killed-Behind-the-scenes-of-the-deadly-raid.html> accessed October 28, 2011.

⁴⁵ “How Osama Bin Laden was Located and Killed,” supra n. 32.

⁴⁶ Schmidle, supra n. 30.

⁴⁷ See, e.g., Matt Apuzzo, “Inside The Raid That Killed Bin Laden,” The Seattle Times, seattletimes.nwsource.com, May 02, 2011, available at <http://seattletimes.nwsource.com/html/nationworld/2014933984_apusbinladentheraid.html> accessed October 28, 2011.

⁴⁸ SEAL stands for “Sea, Air, Land,” and is a common acronym used to describe those specially trained Special Operations Force (SOF) “operators” who are part of USSOCOM’s Naval Special Warfare Command. See, e.g., Naval Special Operations Command (NSW), available at <http://www.public.navy.mil/nsw/Pages/welcome.aspx> accessed October 28, 2011. See also Sherwell, supra n. 44.

⁴⁹ U.S. Joint Publication JP 1–02, supra n. 21, defines “covert” as “[a]n operation that is so planned and executed as to conceal the identity of or permit plausible denial by the sponsor,” ibid. at 87. Contrast this with the definition of “clandestine,” which is an “operation sponsored or conducted by governmental departments or agencies in such a way as to assure secrecy or concealment. A clandestine operation differs from a covert operation in that emphasis is placed on concealment of the operation rather than on concealment of the identity of the sponsor. In special operations, an activity may be both covert and clandestine and may focus equally on operational considerations and intelligence-related activities.” Ibid. at 55.

⁵⁰ Schmidle, supra n. 30.

⁵¹ Steven Swinford, “Osama Bin Laden Dead: Blackout During Raid on Bin Laden Compound,” The Telegraph, May 4, 2011, available at <http://www.telegraph.co.uk/news/worldnews/alqaeda/8493391/Osama-bin-Laden-dead-Blackout-during-raid-on-bin-Laden-compound.html> accessed October 28, 2011.

⁵² The “National Command Authority” (NCA) is comprised of the President and Secretary of Defense together or their duly deputized alternates or successors. The term NCA is used to signify constitutional authority to direct the Armed Forces in their execution of military action. Both the movement of troops and execution of military action must be directed by the NCA; by law, no one else in the chain of command has the authority to take such action. See e.g., Naval Doctrine Publication (NDP) 1, Naval Warfare March 28, 1994, 9, available at <http://www.dtic.mil/doctrine/jel/service_pubs/ndp1.pdf> accessed October 28, 2011.

⁵³ Swinford, supra n. 51.

⁵⁴ Schmidle, supra n. 30.

⁵⁵ Sherwell, supra n. 44.

⁵⁶ Ibid.

⁵⁷ Schmidle, supra n 30.

⁵⁸ Ibid.

⁵⁹ Ibid.

⁶⁰ David Crane, “Burial at Sea: The End of Osama bin Laden,” JURIST—Forum, May 4, 2011, available at <http://jurist.org/forum/2011/05/burial-at-sea-the-end-of-osama-bin-laden.php> accessed September 22, 2011.

⁶¹ Laurie Blank, “Finding the Paradigm: Investigating bin Laden’s Demise,” JURIST—Forum, May 8, 2011, available at <http://jurist.law.pitt.edu/forum/2011/05/laurie-blank-finding-the-paradigm.php>; http://jurist.org/forum/2011/05/laurie-blank-findingthe-paradigm.php> accessed October 28, 2011.

⁶² See, e.g., Army Regulation (AR) 380–1, Special Access Programs (SAPs) and Sensitive Activities, April 21, 2004, available at <http://www.fas.org/irp/doddir/army/ar380-381.pdf> accessed October 28, 2011. AR 380–1 defines sensitive activities as “Programs that restrict personnel access, such as [Alternative Compensatory Control, or] ACC measures; sensitive support to other Federal agencies; clandestine or covert operational or intelligence activities; sensitive research, development, acquisition, or contracting activities; special activities; and other activities excluded from normal staff review and oversight because of restrictions on access to information.” Ibid. at 84.

⁶³ Johnson, supra n. 20, v. Having said this, we must not discount the likelihood that classified guidelines and/or planning considerations have existed for U.S. targeted killing operations.

⁶⁴ For a detailed yet accessible review of this subject, see Elizabeth B. Bazan, Assassination Ban and E.O. 12333: A Brief Summary, Congressional Research Service (CRS) Report RS21037, 2004, available at <http://www.fas.org/irp/crs/RS21037.pdf> accessed October 28, 2011.

⁶⁵ See, e.g., David Tucker, “Counterterrorism and the Perils of Preemption Problems and Command and Control” in Betty Glad and Chris Dolan (eds), Striking First: The Preventative War Doctrine and the Reshaping of U.S. Foreign Policy (New York: Palgrave McMillan, 2004) 75–89, cited with authority in Hunter, supra n. 16, 3.

⁶⁶ Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge: Cambridge University Press, 2010) 542.

⁶⁷ Keynote Address from Ambassador (Retired) Dell L. Dailey at Conference “Using Targeted Killing to Fight the War on Terror: Philosophical, Moral and Legal Challenges” University of Pennsylvania Law School (April 15, 2011). Among his many military and diplomatic assignments, Dailey commanded JSOC, and directed the new Center for Special Operations, the military hub for all counterterrorism, before retiring to control of the State Department’s counterterrorism office, from which he “promoted interagency collaboration and built closer partnerships between military personnel and the members of other U.S. Government departments and agencies involved in global counterterrorism activities.” “Biography—Dell L. Dailey” U.S. Dep’t of State Website, available at <http://www.state.gov/outofdate/bios/87639.htm> accessed October 28, 2011.

⁶⁸ Philip Alston, The Project on Extrajudicial Executions, U.N. General Assembly Special Report 5/2010, available at <http://www.extrajudicialexecutions.org/application/media/14%20HRC%20Targeted%20Killings%20Report%20%28A.HRC.14.24.Add6%29.pdf> accessed October 28, 2011.

⁶⁹ Glen W. Johnson, supra n. 20, v. Johnson’s Abstract noted that as of 2007, at least in the unclassified realm, a consequentialist viewpoint that “[d]ue to the political complexity intertwined with targeted killing these types of operations rarely occur without repercussion. Operational planners need to understand that targeted killing operations cannot exist solely at the operational level because their consequences have strategic and political ramifications. By utilizing a case study analysis, this thesis will identify the operational planning considerations that need to be addressed to successfully conduct a targeted killing mission.”

⁷⁰ Ibid. at 34–36.

⁷¹ Ibid. at 39–41.

⁷² Ibid. at 30–33.

⁷³ Ibid. at 25–29.

⁷⁴ Ibid. at 39–42.

⁷⁵ Note: See HCJ 760/02, The Public Committee Against Torture in Israel v. The Government of Israel, Decision of the Israeli Supreme Court, issued on December 14, 2006, available at < http://www.jewishvirtuallibrary.org/jsource/Politics/sctterror.html> accessed October 28, 2011. For more on Israeli targeted killing, superbly written about by one of the world’s foremost counterterrorism experts, see Amos N. Guiora, “Targeted Killing as Active Self-Defense,” Case Western Research Journal Int’l Law, Vol. 36, 319, 2004.

⁷⁶ Office of the President of the United States, United States Intelligence Activities (E.O. 12333, 1981), available at <http://www.au.af.mil/au/awc/awcgate/whitehouse/eo12333.htm> accessed October 28, 2011.

⁷⁷ Executive Order 12333 was the last of three executive orders banning assassination. For a detailed yet accessible review of this subject, see Elizabeth B. Bazan, “Assassination Ban and E.O. 12333: A Brief Summary,” Congressional Research Service (CRS) Report RS21037, 2004, available at <http://www.fas.org/irp/crs/RS21037.pdf> accessed October 30, 2011.

⁷⁸ Ibid. at n. 3.

⁷⁹ Note: The Senate passed S. J. Res. 23, before 11:00 a.m. on Friday, September 14, 2001. The House passed it late Friday evening, September 14, 2001. The President signed it into law on Tuesday, September 18, 2001 as P.L. 107–40, 115 Stat. 224 (2001). For a detailed discussion of authorizations of the use of U.S. military force see Jennifer K. Elsea and Richard F. Grimmett, Congressional Research Service Report (RL31133, 2007), Declarations of War and Authorizations of Use of Military Force: Historical Background and Legal Implications (2007), available at <http://www.fas.org/sgp/crs/natsec/RS22357.pdf> accessed October 28, 2011.

⁸⁰ Siobhan Gorman, “CIA Had Secret Al Qaeda Plan,” The Wall Street Journal, July 13, 2009, available at <http://online.wsj.com/article/SB124736381913627661.html#mod=djemalertNEWS> accessed October 28, 2011, and see Marc Ambinder, “What Was That Secret CIA Operation? Targeted Assassinations?,” The Atlantic, (Boston, July 31, 2009), available at <http://www.theatlantic.com/politics/archive/2009/07/what-was-that-secret-cia-operation-targeted-assassinations/21144/> accessed October 28, 2011.

⁸¹ Alfred Cumming, Covert Action: Legislative Background and Possible Policy Questions, (CRS Report RL33715, 2009), available at <http://www.fas.org/sgp/crs/intel/RL33715.pdf> accessed October 28, 2011.

⁸² Ibid. citing Sec. 503 of the National Security Act of 1947 [50 U.S.C. 413b], and see U.S. Joint Publication JP 1–02, supra n. 21, regarding the differentiation between “clandestine” and “covert.”

⁸³ According to Paust, supra n. 19, 262, “[t]he targeted killing of certain persons is clearly lawful under the laws of war, during war the selective killing of persons who are taking a direct part in armed hostilities, including enemy combatants, unprivileged combatants, and their civilian leaders (and, thus, excluding captured persons of any status), would not be impermissible ‘assassination’.” See also Benjamin Davis, “Post-Osama: The Way Forward for the United States,” JURIST—Forum, May 2, 2011, available at <http://jurist.org/forum/2011/05/benjamin-davis-post-osama.php> accessed October 28, 2011. See also David Crane, “Legal Arithmetic: Adding Up the Legality of Operation Geronimo,” JURIST—Forum, May 14, 2011, available at <http://jurist.org/forum/2011/05/david-crane-legal-arithmetic.php> accessed October 28, 2011.

⁸⁴ Ibid.

⁸⁵ See, e.g., Curtis Doebbler, “The Illegal Killing of Osama Bin Laden,” JURIST—Forum, May 5, 2011, available at <http://jurist.org/forum/2011/05/curtis-doebbler-illegal-killing-obl.php> accessed October 28, 2011.

⁸⁶ Declan Walsh, “Osama bin Laden Mission Agreed in Secret 10 Years Ago by US and Pakistan,” The Guardian, May 9, 2011, available at <http://www.guardian.co.uk/world/2011/may/09/osamabin-laden-us-pakistan-deal> accessed October 28, 2011.

⁸⁷ Ibid.

⁸⁸ See, e.g., “The US Embassy Cables,” The Guardian, September 22, 2011, available at <http://www.guardian.co.uk/world/the-us-embassy-cables> accessed October 28, 2011.

⁸⁹ Walsh, supra n. 86.

⁹⁰ W. Jason Fisher, “Targeted Killing, Norms, and International Law,” (2007) 45 Colum. J. Transnat’l L. 711, 719.

⁹¹ Ibid. at 719. See also Office of the High Commissioner for Human Rights, “International Human Rights Law” (United Nations Human Rights, June 23, 2011), available at <http://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx> accessed October 28, 2011, noting that “International human rights law lays down obligations which States are bound to respect.”

⁹² For what comprises IHL, see “What is International Humanitarian Law?,” Advisory Service On International Humanitarian Law, 07/2004, available at < http://www.icrc.org/eng/what-we-do/building-respect-ihl/advisory-service/index.jsp> accessed October 28, 2011. This is also consistent with the United Nations Global Counter-Terrorism Strategy, adopted by Member States on September 8, 2006, available at <http://www.un.org/terrorism/strategy-counter-terrorism.shtml#poa2> accessed October 28, 2011.

⁹³ See John Embry Parkerson, Jr, “United States Compliance with Humanitarian Law Respecting Civilians During Operation Just Cause,” 133 Mil. L. Rev. 31, 41–2 (1991) and Kevin H. Govern, “Sorting the Wolves from the Sheep,” 19 Military Police 1, 1–5 (2004); see also Major Geoffrey S. Corn and Major Michael Smidt, “To Be or Not to Be, That is the Question: Contemporary Military Operations and the Status of Captured Personnel,” Army Law, June 1999, 1.

⁹⁴ Fisher, supra n. 90, 719.

⁹⁵ Edmund N. Santurri, “Philosophical Ambiguities in Ostensibly Unambiguous Times: The Moral Evaluation of Terrorism,” Journal of Peace & Justice Studies 12:2 (2002) 137.

⁹⁶ Ibid. at 138.

⁹⁷ Ibid.

⁹⁸ Ibid. at 153.

⁹⁹ Ibid. at 155.

¹⁰⁰ Ken Dilanian, “CIA has Slashed its Terrorism Interrogation Role,” LA Times April 10, 2011, available at <http://articles.latimes.com/2011/apr/10/world/la-fg-cia-interrogation-20110411> accessed October 28, 2011.

¹⁰¹ Blank, supra n. 61.

¹⁰² UPI, “Officer: Raid Was Always to Kill bin Laden,” UPI.com, August 2, 2011, available at <http://www.upi.com/Top_News/US/2011/08/02/Officer-Raid-was-always-to-kill-bin-Laden/UPI-92811312270200/#ixzz1X12GywZF> accessed October 28, 2011.

¹⁰³ Yochi J. Dreazen, Aamer Madhani and Marc Ambinder, “For Obama, Killing—Not Capturing—bin Laden Was Goal,” National Journal, May 4, 2011, available at <http://www.nationaljournal.com/for-obama-killing-not-capturing-nobr-bin-laden-nobr-was-goal-20110503> accessed October 28, 2011.

¹⁰⁴ Davies, supra n. 39.

¹⁰⁵ Gavett, supra n. 40, cited with authority in Dreazen, supra n. 103.

¹⁰⁶ Ibid.

¹⁰⁷ ROE are directives issued by competent superior authority that delineate the circumstances and limitations under which military forces will initiate and continue engagement with other forces. ROE are drafted in consideration of the law of war, national policy, public opinion, and military operational constraints. ROE are often more restrictive than the law of war would allow. ROE will normally determine the legally justified uses of force during international military operations. See, e.g., U.S. Joint Publication JP 1–02, supra n. 21, 309.

¹⁰⁸ The ROE for Neptune Spear would have necessarily been drafted to be in accord with the so-called Common Article 3 protections of the Geneva Conventions. See, e.g., Convention (III) Relative to the Treatment of Prisoners of War. Geneva, August 12, 1949, available at <http://www.icrc.org/ihl.nsf/FULL/375?OpenDocument> accessed October 28, 2011. This Convention and its Commentaries fail to address the rights and responsibilities of terrorists other than noting in the Commentaries that “it was not possible to talk of ‘terrorism,’ ‘anarchy’ or ‘disorder’ in the case of rebels who complied with humanitarian principles,” which has never been persuasively alleged that bin Laden or AQ ever did. See Commentaries to Convention (III) Relative to the Treatment of Prisoners of War. Geneva, August 12, 1949, available at <http://www.icrc.org/ihl.nsf/COM/375–590006?OpenDocument> accessed October 28, 2011.

¹⁰⁹ Crane, supra nn. 60 and 83.

¹¹⁰ Arabella, Thorp, “Killing Osama bin Laden: Has Justice Been Done?,” House of Commons Library Standard Report SN/IA/5967, May 16, 2011, available at <http://www.parliament.uk/briefing-papers/SN05967> accessed October 28, 2011.

¹¹¹ Ibid. at 9.

¹¹² “The Year of the Drone: An Analysis of U.S. Drone Strikes in Pakistan, 2004–2011”, New America Foundation, 11 September 2011, available at <http://counterterrorism.newamerica.net/drones> accessed October 28, 2011. The New America Foundation claimed to rely upon open-source (unclassified) reports as available from including the New York Times, Washington Post, and Wall Street Journal, accounts by major news services and networks—the Associated Press, Reuters, Agence France-Presse, CNN, and the BBC—and reports in the leading English-language newspapers in Pakistan—the Daily Times, Dawn, the Express Tribune, and the News—as well as those from Geo TV, the largest independent Pakistani television network.

¹¹³ Chris Woods, “Covert Drone War—’You Cannot Call Me Lucky’—Drones Injure Over 1,100”, The Bureau of Investigative Journalism, 10 August 2011, available at <http://www.thebureauinvestigates.com/category/projects/drones/> accessed October 28, 2011.

¹¹⁴ Sean Naylor, “Chinook Crash Highlights Rise in Spec Ops Raids”, Army Times, 21 August 2011, available at <http://www.armytimes.com/news/2011/08/army-chinook-crash-highlights-rise-in-spec-ops-raids-082111w/> accessed October 28, 2011.

¹¹⁵ Joshua Partlow, “Karzai Wants U.S. to Reduce Military Operations in Afghanistan, Washington Post, November 14, 2010, available at <http://www.washingtonpost.com/wp-dyn/content/article/2010/11/13/AR2010111304001.html> last accessed October 28, 2011.

¹¹⁶ Naylor, supra n. 114, cited with authority in Jonathan Masters, “Backgrounder—Targeted Killing, Council on Foreign Relations,” 29 August 2011, available at <http://www.cfr.org/intelligence/targeted-killings/p9627> accessed October 28, 2011. Readers are reminded that counter-terrorism operations are ordinarily, but not exclusively, conducted by highly trained SOF and/or national intelligence assets.

¹¹⁷ See, e.g., Martin Chulov and Paul Harris, “Anwar al-Awlaki, al-Qaida Cleric and Top US Target, Killed in Yemen,” The Guardian September 30, 2011, available at <http://www.guardian.co.uk/world/2011/sep/30/anwar-al-awlaki-killed-yemen> accessed October 28, 2011.

¹¹⁸ Jason Ryan, ‘License to Kill? Intelligence Chief Says U.S. Can Take Out American Terrorists’, ABC News website, available at <http://abcnews.go.com/Politics/license-kill-intelligence-chief-us-american-terrorist/story?id=9740491> accessed October 28, 2011.

¹¹⁹ Scott Shane, “U.S. Approves Targeted Killing of American Cleric,” New York Times, April 6, 2011, available at <http://www.nytimes.com/2010/04/07/world/middleeast/07yemen.html> accessed October 28, 2011.

¹²⁰ Ibid.

¹²¹ David Sperry, “Officials: US Drone Fired in Gadhafi Strike; Administration Looking Ahead to Libya’s Future,” Washington Post October 21, 2011, available at <http://www.washingtonpost.com/politics/congress/gadhafi-death-amounts-to-victory-for-obamas-approach-but-little-impact-likely-on-election/2011/10/21/gIQAxAGi2L_story.html> accessed October 28, 2011.

¹²² Ibid.

¹²³ Salman Masood, “Drone Strike in Pakistan Kills Brother of Militant Commander,” New York Times, Oct 27, 2011, available at <http://www.nytimes.com/2011/10/28/world/asia/drone-strike-in-pakistan-kills-brother-of-taliban-fighter.html?_r=1&emc=eta1> accessed October 28, 2011.

¹²⁴ AP, “US Drone Strikes Kill Prominent Militant Commander, 10 Others in NW Pakistan,” Washington Post, October 27, 2011, available at <http://www.washingtonpost.com/world/asia-pacific/bomb-explodes-in-food-market-in-northwest-pakistan-city-of-peshawar-injuring-11-people/2011/10/27/gIQALBooKM_story.html> accessed October 28, 2011.

¹²⁵ “Pakistani Tribesmen Rally Against US Drone Strikes,” Daily News and Analysis India website, available at <http://www.dnaindia.com/world/report_pakistani-tribesmen-rally-against-us-drone-strikes_1604371> accessed October 28, 2011. Note: Khan is a common surname of Central Asian origin, primarily found in Afghanistan, Bangladesh, India and Pakistan, and Imran Khan is no relation to the previously mentioned Tareq Khan or Samir Khan. See Sir Henry Yule, Hobson-Jobson, A Glossary of Colloquial Anglo-Indian Words and Phrases, and of Kindred Terms, Etymological, Historical, Geographical and Discursive (new edn edited by William Crooke, B.A. London: J. Murray, 1903), Digital Dictionaries of South Asia Website, available at <http://dsal.uchicago.edu/dictionaries/hobsonjobson/> accessed October 28, 2011.

¹²⁶ Ibid.

¹²⁷ “Imran Khan starts his Two Day Protest Against Drone Attacks,” Latest BBCNews website, available at <http://www.latestbbcnews.com/imran-khan-starts-his-two-day-protest-against-drone-attacks.html> accessed October 28, 2011.

¹²⁸ With respect to mercenarism and Private Military Firms/Private Military Corporations, see, e.g., P.W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Cornell: Cornell University Press, 2003) 8, and see Kevin H. Govern and Eric C. Bales, “Taking Shots at Private Military Firms: International Law Misses its Mark (Again)” (2008) 32 Fordham Int’l L.J. 55, and Louise Doswald-Beck, From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford: Oxford University Press, 2007) ch. 7. These authors significantly distinguish between and among those categories of legal versus illegal actors subject to national and international criminal law, and the laws of war/international humanitarian law.

¹²⁹ “Same Blackwater, Different Names,” ABC News website, available at <http://abcnews.go.com/Blotter/blackwater-names/story?id=9634372&page=2> accessed October 28, 2011. According to a 2009 report in The Nation, JSOC, in tandem with Blackwater/Xe, has an ongoing drone program, along with “snatch and grabs” of high-value targets, along with targeted killing operations based upon “plans developed in part by Blackwater,” with operations based in Karachi and conducted both in and outside of Pakistan. See Jeremy Scahill, “Blackwater’s Secret War in Pakistan,” The Nation, 23 November 2009, available at <http://www.thenation.com/article/secret-us-war-pakistan> Accessed October 28, 2011. Note: this is not to be confused with the similar-sounding “PTC Select,” whose “highly trained network support engineers build, upgrade, secure and maintain computer network through scheduled visits.” See PTC Select website, available at <http://www.ptcselect.com/> accessed October 28, 2011.

¹³⁰ “CIA Said to Use Outsiders to Put Bombs on Drones,” NY Times.com, available at <http://www.nytimes.com/2009/08/21/us/21intel.html> accessed October 28, 2011. By way of caveat, the article goes on to say “General Hayden, who succeeded Mr. Goss at the agency, acknowledged that the CIA program continued under his watch, though it was not a priority. He said the program was never prominent during his time at the CIA, which was one reason he did not believe that he had to notify Congress. He said it did not involve outside contractors by the time he came in.”

¹³¹ Ibid.

¹³² Ibid.

¹³³ Ibid.

¹³⁴ Mazzetti, supra n. 19.

¹³⁵ Greg Jaffe and Karen DeYoung, “U.S. Drone Targets Two Leaders of Somali Group Allied with al-Qaeda, Official Says,” Washington Post, June 29, 2011, available at <http://www.washingtonpost.com/national/national-security/us-drones-target-two-leaders-of-somali-group-allied-with-al-qaeda/2011/06/29/AGJFxZrH_story.html> accessed October 28, 2011.

¹³⁶ Ibid. See also Afsheen John Radsan and Richard Murphy, “Measure Twice, Shoot Once: Higher Care For Cia-Targeted Killing,” University of Illinois Law Review, Vol. 2011, 1201 et seq.

¹³⁷ See, e.g., Doebbler, supra n. 85, and Ryan P. Alford, “The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens, March 7, 2011, Utah Law Review, forthcoming, available at SSRN: <http://ssrn.com/abstract=1780584> accessed October 28, 2011, and Chibli Mallat, “The Geneva Conventions and the Death of Osama bin Laden,” JURIST—Forum, August 4, 2011, available at <http://jurist.law.pitt.edu/forum/2011/08/chibli-mallat-bin-laden.php> accessed October 28, 2011, and see also Afsheen, supra n. 136, and Robert Chesney, “Who May Be Killed? Anwar al-Awlaki As a Case Study in the International Regulation of Lethal Force,” 13 Y.B. Int’l Humanitarian L. (forthcoming).

¹³⁸ See Christian Bueger, Jan Stockbruegger and Sascha Werthes, “Pirates, Fishermen and Peacebuilding: Options for a Sustainable Counter-Piracy Strategy in Somalia,” Contemporary Security Policy Vol. 32, No. 2 (2011).

¹³⁹ Augustine of Hippo, De Civitate Dei (400), IV, 4, as quoted in Christopher Kirwan, Augustine (1989).

¹⁴⁰ See, e.g., Govern and Bales, supra n. 128.

¹⁴¹ Ibid. at 8, citing with authority “Osama bin Laden’s Death—Killed in a Raid or Assassinated?,” The Guardian, May 6, 2011, available at <http://www.guardian.co.uk/world/2011/may/06/osamabin-laden-death-assassination> accessed October 28, 2011.

¹⁴² The National Strategy for Counterterrorism, June 2011, available at <http://www.white-house.gov/sites/default/files/counterterrorism_strategy.pdf> accessed October 28, 2011.

¹⁴³ Ibid. at 4.

¹⁴⁴ Ibid. at 2.

¹⁴⁵ Ibid. at 6.

¹⁴⁶ Ibid. at 4.

¹⁴⁷ George A. Crawford, “Manhunting: Counter-Network Organization for Irregular Warfare,” JSOU Report 09-7 (Hurlburt Field, Fl: The JSOU Press, 2009) vii, available at <http://www.bibliotecapleyades.net/archivos_pdf/manhunting.pdf> accessed October 28, 2011. Foreign Internal Defense is defined by the U.S. DoD as “Participation by civilian and military agencies of a government in any of the action programs taken by another government or other designated organization to free and protect its society from subversion, lawlessness, insurgency, terrorism, and other threats to its security. Also called FID.” U.S. Joint Publication JP 1-02, supra n. 21, 145.

¹⁴⁸ Ibid. at 22 says “‘In-extremis’ refers to a situation of such exceptional urgency that immediate action must be taken to minimize imminent loss of life or catastrophic degradation of the political or military situation.”

¹⁴⁹ Crawford, supra n. 147, 40.

¹⁵⁰ National Strategy, supra n. 142, 8.

¹⁵¹ Rollins, supra n. 2, i.