Article by Elad D. Gil
For over a decade, the use of targeted killing has been one of the most controversial issues in counterterrorism policy and law. One longstanding debate over this tactic concerns the allocation of decision -making and oversight authority among the branches of government. The recent executive-legislative confrontation over a law passed following the lethal targeting of Iranian General Qassem Soleimani offers a powerful illustration of the constitutional ambiguity surrounding the issue. As attempts to resolve the ambiguity through textual and historical sources yield indeterminant answers, scholars tend to examine it through a functionalist prism, asking what institutional structures best serve the interests of national security while ensuring adequate accountability and preventing unnecessary force.
This Article, retaining the functionalist framing of that issue, will approach the question through a comparative law analysis. Three of the countries most heavily engaged in global counterterrorism—the United States, the United Kingdom, and Israel—have adopted substantially different approaches for regulating counterterrorism targeting, each according a primary supervisory role to a different governmental actor: the Executive in the United States, Parliament in the United Kingdom, and the Judiciary in Israel. This Article describes, compares, and critically analyzes these approaches. Drawing on comparative institutional analysis theory, it then examines the findings and reaches three main conclusions. First, that in light of the judiciary’s unique structural perspective and expertise, some judicial involvement in developing the legal standard that guides and constrains government action is desirable. Second, that suboptimal decision -making and illegality due to executive bias are more likely to occur where the executive is accountable only to its own internal oversight mechanisms. And third, that in both presidential and parliamentarian systems, legislators do not have and are unlikely to have any sort of meaningful influence on executive behavior in this domain. The Article concludes by suggesting a few possible institutional reforms.
About the Author
Elad D. Gil. Post-Doctoral Fellow, Hebrew University, Faculty of Law and the Federmann Cyber Security Center; Fellow, the Abba Eban Institute for International Diplomacy, the Interdisciplinary Center Herzliya.
Citation
94 Tul. L. Rev. 711 (2020)