THE 2009 AIR AND MISSILE WARFARE MANUAL: A CRITICAL ANALYSIS: Determining a Legitimate Target: The Dilemma of the Decision-Maker

Introduction Nation-states are under attack by non-state actors; whether non-state actors present an existential threat to nation-states is debatable, probably unlikely. Nevertheless, the threat to innocent human life that terrorism poses must not be underestimated. Because terrorist organizations have defined the innocent civilian population as legitimate targets, the state must develop and implement aggressive counterterrorism measures. That, in a nutshell, is the state of the world post-9/11. While reasonable minds may disagree as to the degree of threat that terrorism poses, there is little (never say never) disagreement that terrorism poses a (not necessarily the) threat to the nation-state. This reality has forced decision-makers to address terrorism and terrorists literally "on the fly." In retrospect, Tuesday morning September 11, 2001, not only caught world leaders by surprise, but most were also unprepared and untrained to respond in a sophisticated and strategic manner. In the United States, as thoroughly documented elsewhere, the lack of preparation directly contributed to significant violations of human rights including torture, rendition, indefinite detention, and unauthorized wiretapping. 1 The Executive Branch in the United States 2 chose the path of granting itself unprecedented powers, with Congress and the Supreme Court largely acquiescing. While historians will judge whether this combination made America safer, the wise words of Benjamin Franklin - "Those who would give up essential Liberty, to purchase a little temporary Safety deserve neither Liberty nor Safety" 3 - were largely ignored in the aftermath of 9/11. The ten-year anniversary of 9/11 serves as a ...