Laurie Blank discusses a new approach to analyze the legality and effectiveness of US targeted killing. She suggests that targeted killing should be viewed through a lens that combines the effectiveness and legality metrics while also focusing on the essential issue of legitimacy.
Blank then explores the effectiveness of targeted killing through a legal lens by exploring three considerations: the role of legal compliance in maximizing effectiveness, the interplay between effectiveness and legitimacy, and the United States’ efforts to shape the law to enhance the effectiveness and availability of the tactic.
Blank concludes that targeted killing is an effective means to enhance legal compliance and achieve national security objectives in the short term, but she highlights that the tactic risks applicable laws evolving in a way unfavorable for U interests in the long term.
A central tool in the United States’ counterterrorism strategy over the past two decades has been the use of remotely piloted aircraft, more commonly known as drones, to target members of Al Qaeda and other associated terrorist groups. These drone strikes have been largely concentrated in northwest Pakistan, Yemen, and Somalia, although the exact number of strikes is difficult to determine, partly because the US is not always transparent about when it conducts a strike.
The use of drones for targeted killing has initiated intense debate over whether such strikes are lawful or ethical, whether they are effective in combatting terrorism, and to what extent they harm civilians. In this article, the author reviews both quantitative and qualitative evidence of the effects of US drone strikes on both terrorists and civilians, coming to several conclusions.
Mitt Regan ultimately finds that strikes against Al Qaeda leaders have neither caused the group to decline nor reduced the number of attacks it conducts worldwide. Furthermore, the evidence suggests that, while strikes reduced the number of terrorist attacks in areas where they occurred for up to four weeks, this effect does not last longer unless additional, ongoing strikes are carried out.
Regarding civilians, the evidence shows that the US has struggled to meet its own standard of near certainty of no civilian casualties, and generally drone strikes cause resentment towards the US in areas where they occur, although it does not support the claim that such resentment results in increased numbers of recruits to terrorist groups.
In recent years, foreign bulk data collection of US citizens’ personal data has emerged as a new and increasing national security threat. The ability of foreign adversaries to collect—and in some cases, buy outright—US person data is officially governed by IEEPA and CFIUS. Bernard Horowitz and Terence Check argue that these regulatory frameworks are ill-suited for the particular issues raised by present-day data processing technology.
The authors examine both IEEPA and CFIUS in turn—how these regulations function in practice, and how they apply to bulk adversarial data collection. The authors focus particularly on the recent decision in TikTok v. Trump and how it may undermine the ability of the United States to restrict data trade on national security grounds.
Bernard Horowitz is Law Clerk for Senior Judge Mary Ellen Coster Williams of the United States Court of Federal Claims. This article does not reflect the views of the Court of Federal Claims or Judge Williams, and was written solely in the author’s personal capacity and not as part of his court-related duties.
Terence Check is Senior Counsel, Cybersecurity and Infrastructure Security Agency, Department of Homeland Security; LL.M in Law & Government, specializing in National Security Law & Policy, American University Washington College of Law (2015); J.D., magna cum laude, Cleveland State University, Cleveland-Marshall College of Law (2014); Editor-in-Chief, Cleveland State Law Review (2013-2014). This article does not reflect the official position of the US government, DHS, or CISA and all opinions expressed are solely those of the authors. He is the author of “Turning US Vetting Capabilities and International Information-sharing to Counter Foreign White Supremacist Terror Threats” in the JNSLP Online Supplement.