Kevin Govern, Warrant Based Targeting:
Prosecution-Oriented Capture And Detention As Legal And Moral Alternatives
To Targeted Killing, Arizona Journal of International & Comparative Law
Vol. 29, No. 3, (2012)(published 2013).
Targeted killing has had significant political and military repercussions around the world in recent years, especially in the wake of 2011 operations against Osama bin Laden and Anwar al-Aulaqi. By contrast, adapting a time-tested, prosecution-oriented strategy to capture rather than to kill, warrant-based search and detention became the de jure required modality of dealing with insurgents and criminals alike in Iraq prior to coalition troop withdrawal. Use of search and detention, called “warrant-based targeting” since 2008, is also an emergent trend in combined and interagency operations, not only in present-day Afghanistan, but also in the international arena as a military adaptation to the prosecution-support function.
Despite popular misconceptions of an inherently bellicose connotation to the words target or targeting, the Department of Defense (DOD) defines target as: “An entity or object considered for possible engagement or other action,” and “[i]n intelligence usage, a country, area, installation, agency, or person against which intelligence operations are directed,” and defines targeting as: “The process of selecting and prioritizing targets and matching the appropriate response to them, considering operational requirements and capabilities.” Warrant-based targeting, then, considers persons for possible intelligence and law enforcement engagement as targets for possible arrest and prosecution, rather than persons to be fired upon or engaged with the use of force.
Compelled by strategic necessity, the U.S. military has quietly adapted its procedures to search at the point of capture, and to detain using conventional and Special Operations Forces (SOF) organizational structures in the field, in order to maximize the prospects for host-nation prosecutions—all contrary to conventional wisdom about the incompatibility of such efforts with the military’s mission of “template-able aim points for easy targeting and destruction.” Warrant-based targeting follows a guiding principle of military forces working alongside domestic and international security forces. Together, those forces assess threats, build credible bases for judicially-issued criminal arrest warrants, seek those warrants, apprehend suspects pursuant to those warrants while collecting evidence for prosecution, then hand off apprehended individuals along with evidence collected to competent civilian judicial and correctional authorities. As contrasted with proceedings pursuant to military tribunals, such an undertaking necessarily involves the effective use of information to seek a civilian judicial warrant for arrest, and works best in systems where transparent judicial processes militate against secrecy and promote public accountability.
This article examines warrant-based targeting and key lessons learned with respect to such operations, and proposes future locales where it might be effectively employed. Part II is an initial review of historical, warrant-based targeting examples that follows commentary on legal and operational matters making warrant-based targeting both necessary and proper in Iraq from 2009 onward. Part III discusses specific tactics, techniques, and procedures (TTP) involved in warrant-based targeting in Iraq, now carried over to operations in Afghanistan. From a broader perspective, and in order to apply warrant-based targeting beyond Iraq and Afghanistan, Part IV’s key lessons regard military cooperation with domestic law enforcement and judicial authorities. These lessons include: the necessity for proper collection and processing of forensic evidence; the inherent dilemma of military forces performing law enforcement roles; and the necessity to overcome a mindset that the military reaches “mission accomplished” status merely when it obtains the requisite warrant, collects evidence, and then carries out an arrest. Part V establishes what, in a world of ever-changing circumstances, the rule of law has come to mean and why warrant-based targeting matters to advancing the rule of law. Concluding comments in Part VI consider why this methodology is a meaningful, albeit complicated, alternative to the expediency of targeted killing.