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WAR-009 — Executive Lethal Targeting Accountability Act

A BILL

To establish lawful classifications, minimum safeguards, evidence-preservation duties, independent review, and accountability for planned extraterritorial lethal operations conducted under authority of the United States, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Executive Lethal Targeting Accountability Act”.

SEC. 2. PURPOSES.

The purposes of this Act are—

  1. to ensure that every planned extraterritorial lethal operation conducted under authority of the United States rests on a defined legal basis;
  2. to preserve law enforcement as the governing framework for suspected criminal activity outside an armed conflict;
  3. to preserve lawful targeting during an armed conflict specifically authorized by Congress;
  4. to preserve necessary force against an actual or imminent threat while preventing emergency self-defense from becoming an undeclared continuing campaign;
  5. to prohibit an executive designation, intelligence conclusion, suspected cargo, or association from independently authorizing armed conflict or establishing individual targetability;
  6. to require individualized verification, legal review, feasible precautions, evidence preservation, victim-identification efforts, and independent review;
  7. to ensure that the executing agency or organizational label does not determine whether the safeguards apply; and
  8. to provide Congress and appropriate criminal authorities with a reliable record of potentially unlawful conduct, including knowing presidential commission, authorization, or concealment of a war crime.

SEC. 3. DEFINITIONS.

In this Act:

(a) Armed conflict.

The term “armed conflict” means an international or noninternational armed conflict to which the United States is a party under the applicable law of armed conflict, whether or not the conflict was lawfully authorized under the Constitution and laws of the United States.

(b) Authorized armed conflict.

The term “authorized armed conflict” means an armed conflict in which the relevant use of force by the United States is supported by a declaration of war or specific statutory authorization enacted by Congress.

(c) Covered actor.

The term “covered actor” means—

  1. a member of the Armed Forces;
  2. an officer, employee, agent, or contractor of the United States;
  3. an element of the intelligence community; or
  4. any person, unit, partner force, or instrumentality acting at the direction, under the operational control, or with the material assistance of a person described in paragraphs (1) through (3).

(d) Covered lethal operation.

The term “covered lethal operation” means a planned operation outside the territorial United States in which a covered actor intentionally employs force reasonably expected to cause the death of a specifically selected person or the occupants of a specifically selected vessel, vehicle, structure, or other object.

The term does not include ordinary force protection, an unplanned response to an immediately emerging threat, or conduct governed exclusively by domestic constitutional standards within the territorial United States, except that section 7 applies when emergency self-defense is asserted as the basis for continued operations.

(e) Individualized basis.

The term “individualized basis” means specific and articulable facts establishing the legal status and factual identity of the person or object selected for force. Nationality, ethnicity, location, route, vessel type, suspected cargo, association, presence near another person, or inclusion in a designated organization is not alone an individualized basis.

(f) Law-enforcement operation.

The term “law-enforcement operation” means an operation conducted to investigate, interdict, apprehend, arrest, search, seize, prosecute, or prevent suspected criminal activity rather than to conduct hostilities against a party to an armed conflict.

(g) Planned operation.

The term “planned operation” includes an operation for which a covered actor has sufficient opportunity before employing lethal force to select or approve a person, vessel, vehicle, structure, or other object as the object of force.

(h) Specific statutory authorization.

The term “specific statutory authorization” means an Act or joint resolution enacted through bicameralism and presentment that expressly authorizes the use of force against the relevant state, organization, or armed group and identifies the authorized enemy, mission, and geographic scope.

(i) War crime.

The term “war crime” has the meaning given that term in section 2441 of title 18, United States Code, and includes conduct punishable under any other Act of Congress implementing the law of war.

SEC. 4. EXCLUSIVE CLASSIFICATION AND PROHIBITION.

(a) Written classification.

Before approving a covered lethal operation, the responsible department or agency shall classify the operation in writing as—

  1. a law-enforcement operation governed by section 5;
  2. an operation during an authorized armed conflict governed by section 6; or
  3. emergency self-defense governed by section 7.

(b) No residual authority.

A covered actor may not conduct a covered lethal operation unless one of the classifications in subsection (a) is established and the operation complies with the corresponding section.

(c) No designation-based authority.

An executive order, presidential directive, intelligence finding, terrorist or cartel designation, sanctions designation, suspected cargo, appropriations measure, general defense authorization, or interagency conclusion—

  1. does not independently constitute specific statutory authorization for armed conflict; and
  2. does not alone establish that a person or object may lawfully be made the object of lethal force.

(d) Substance controls.

Classification depends on the purpose, facts, legal authority, enemy status, operation, and reasonably foreseeable effects, not the label assigned by the executive branch or the identity of the executing agency.

SEC. 5. LAW-ENFORCEMENT OPERATIONS.

(a) Default for suspected crime.

Suspected drug trafficking, smuggling, terrorism, organized crime, sanctions evasion, immigration offenses, or other criminal activity shall be addressed as law enforcement unless the requirements for armed conflict under section 6 or emergency self-defense under section 7 are independently satisfied.

(b) Intentional lethal force.

In a law-enforcement operation, a covered actor may intentionally use lethal force only when the actor reasonably believes, based on specific facts, that such force is necessary to address an actual and imminent threat of death or serious bodily injury to the actor or another person.

(c) Interdiction and arrest.

Where reasonably feasible, the responsible agency shall use surveillance, warning, interdiction, disabling measures, boarding, arrest, seizure, or other nonlethal means before intentional lethal force.

(d) Military support.

Military detection, monitoring, intelligence, transportation, equipment, training, or other support to law enforcement does not independently authorize a covered lethal operation or convert suspected criminal activity into armed conflict.

(e) Amendments to title 10.

Section 124 of title 10, United States Code, is amended by adding at the end the following:

“(d) Detection and monitoring authority under this section does not authorize the intentional use of lethal force against a person, vessel, vehicle, aircraft, or other object except as permitted by the Executive Lethal Targeting Accountability Act.”.

Section 275 of title 10, United States Code, is amended—

  1. by striking “The Secretary” and inserting “(a) The Secretary”; and
  2. by adding at the end the following:

“(b) An exception to the restrictions in this chapter, or separate authority for military support to law enforcement, does not independently authorize intentional lethal force for the purpose of investigating, interdicting, apprehending, or punishing suspected criminal activity.”.

SEC. 6. OPERATIONS DURING ARMED CONFLICT.

(a) Preconditions.

A covered lethal operation may be classified under this section only if—

  1. the United States is a party to an authorized armed conflict;
  2. the selected person or object is lawfully targetable under the applicable law of armed conflict; and
  3. the operation is within the enemy, mission, geographic, temporal, and operational scope authorized by Congress.

(b) Individualized determination.

Before approval, the targeting record shall state the specific facts supporting the identity and targetable status of each selected person or object. Membership, continuous combat function, direct participation in hostilities, military-objective status, or another asserted basis shall be identified separately.

(c) Minimum requirements.

The approving authority shall document—

  1. distinction between military objectives and civilians or civilian objects;
  2. the concrete and direct military advantage anticipated;
  3. the reasonably foreseeable incidental civilian harm;
  4. proportionality;
  5. feasible precautions in attack;
  6. feasible alternatives, including capture, interdiction, delay, warning, or a less harmful means or time;
  7. the treatment of persons who surrender or are wounded, shipwrecked, incapacitated, or otherwise hors de combat; and
  8. the rescue, medical-assistance, and post-operation assessment plan.

(d) Presumptions forbidden.

Presence within a geographic area, travel on a route, proximity to a suspected person or location, an unverified intelligence association, or occupancy of a vessel, vehicle, or structure does not alone establish targetable status.

An attorney authorized to provide operational law advice and independent of the immediate targeting chain shall review the classification and documented basis before force is employed, unless the timing required by section 7 makes prior review infeasible.

(f) No adjudicatory prerequisite.

This section does not require a judicial warrant or criminal trial before a lawful attack during armed conflict.

SEC. 7. EMERGENCY SELF-DEFENSE.

(a) Authority preserved.

Nothing in this Act prevents force necessary and proportionate to repel an actual armed attack or prevent a specific, concrete, and temporally imminent armed attack when delay would create an unreasonable risk of death or serious bodily injury.

(b) Limitation.

Emergency self-defense may not be used to justify punishment, reprisal, deterrence, coercion, elimination of a speculative future threat, or a planned continuing campaign.

(c) Record and report.

If prior written classification or legal review is infeasible, the responsible agency shall preserve the available evidence immediately and complete the targeting record and legal review not later than 24 hours after force is employed.

(d) Continuing operations.

Repeated or continuing force against a state, organization, or group may not continue under this section beyond 7 days without specific statutory authorization. Protection necessary for safe withdrawal, rescue, and immediate force protection remains permitted.

SEC. 8. TARGETING RECORD, EVIDENCE, AND VICTIM IDENTIFICATION.

(a) Targeting record.

For each covered lethal operation, the responsible agency shall preserve—

  1. the written classification and legal authority;
  2. the individualized factual and legal basis;
  3. the authorization, command chain, rules of engagement, and legal review;
  4. relevant intelligence, communications, sensor data, recordings, imagery, telemetry, and operational logs;
  5. the alternatives and civilian-harm assessment;
  6. casualty, survivor, rescue, detention, medical, and recovery information;
  7. post-operation assessments and any evidence inconsistent with the pre-operation determination; and
  8. any public characterization of the persons or objects selected.

(b) Immediate evidence hold.

Not later than 24 hours after a covered lethal operation, the head of the responsible agency shall issue a preservation notice covering the records described in subsection (a). No person may destroy, alter, conceal, or materially delay access to a covered record.

(c) Identification and notification.

The responsible agency shall make reasonable and documented efforts to identify each person killed or injured, locate and assist survivors when feasible, notify family members through appropriate channels, and recover remains when feasible and lawful.

(d) Correction.

If an official public allegation that an identified person was lawfully targetable or engaged in criminal activity is later found unsupported, the responsible agency shall correct the public record to the maximum extent consistent with protection of classified information and personal privacy.

(e) Retention.

Covered records shall be retained for not less than 25 years and may not be withheld from an authorized inspector general or congressional committee on the ground that the originating agency objects to disclosure.

SEC. 9. INDEPENDENT REVIEW AND REFERRAL.

(a) Automatic review.

Every covered lethal operation shall receive an independent review led by the Inspector General of the Department of Defense or, if the Department of Defense did not direct or materially participate in the operation, the inspector general of the responsible agency.

(b) Joint review panel.

The lead inspector general may convene a panel including the inspectors general of the Departments of Justice, State, and Homeland Security and the Intelligence Community Inspector General. No component that directed or conducted the operation may control the panel's findings.

(c) Scope.

The review shall assess classification, authority, target verification, alternatives, precautions, proportionality where applicable, force used, casualty identification, rescue and medical response, evidence preservation, accuracy of official statements, and any reasonable basis to suspect criminal conduct or material concealment.

(d) Timing.

The lead inspector general shall transmit—

  1. a preliminary notice to the congressional defense, judiciary, foreign affairs, intelligence, homeland-security, and oversight committees not later than 30 days after the operation; and
  2. a final report not later than 180 days after the operation, unless written findings explain why additional time is necessary.

(e) Criminal referral.

If the review establishes a reasonable basis to suspect a violation of Federal criminal law, the inspector general shall promptly refer the matter under section 404(d) of title 5, United States Code, and section 535 of title 28, United States Code. A referral shall be assigned to a Department of Justice component with no supervisory responsibility for the operation and shall use the independent mechanism established by the Judicial Independent Counsel Amendment and Implementation Act if that mechanism is in effect and applicable.

(f) Public report.

The inspector general shall publish an unclassified report containing as much of the findings as may be released without endangering an individual, compromising an ongoing operation or prosecution, or disclosing properly classified sources or methods.

(g) No originating-agency veto.

An agency may propose redactions and protective handling but may not prevent transmission to Congress or publication of a segregable unclassified report. A dispute concerning access by the lead inspector general shall receive expedited review in the United States District Court for the District of Columbia.

SEC. 10. PROSPECTIVE OFFENSE FOR UNLAWFUL EXTRATERRITORIAL KILLING UNDER COLOR OF UNITED STATES AUTHORITY.

(a) Offense.

Chapter 51 of title 18, United States Code, is amended by adding at the end the following:

Ҥ 1123. Unlawful extraterritorial killing under color of United States authority

“(a) Whoever, acting under color of authority of the United States and outside the territorial United States, knowingly causes the death of another person through a planned lethal operation that—

“(1) is not conducted during an authorized armed conflict;

“(2) is not necessary to address an actual and imminent threat of death or serious bodily injury; and

“(3) is not otherwise authorized by an Act of Congress expressly permitting the intentional use of lethal force in the circumstances,

shall be fined under this title, imprisoned for any term of years or for life, or both.

“(b) If death results from conduct undertaken with intent to cause death and with premeditation, the offense shall be punishable as provided for murder in the first degree, except that no sentence of death may be imposed under this section.

“(c) In this section, the terms ‘authorized armed conflict’, ‘planned lethal operation’, and ‘specific statutory authorization’ have the meanings given in the Executive Lethal Targeting Accountability Act.

“(d) This section applies to conduct by a national of the United States, a member of the Armed Forces, an officer or employee of the United States, a contractor or agent acting under United States direction, or any person present in the United States after the conduct.

“(e) No prosecution may be commenced under this section without the written approval of the Attorney General, Deputy Attorney General, or an independent prosecutor exercising authority under an Act of Congress.”.

(b) Clerical amendment.

The table of sections for chapter 51 of title 18, United States Code, is amended by adding at the end the following:

“1123. Unlawful extraterritorial killing under color of United States authority.”.

(c) Prospective application.

The amendments made by this section apply only to conduct occurring on or after the effective date of this Act.

(d) Relationship to other law.

This section does not limit prosecution under section 1111, 2441, or another provision of title 18, United States Code, or under chapter 47 of title 10, United States Code.

SEC. 11. PRESIDENTIAL WAR CRIMES AND CONGRESSIONAL REFERRAL.

(a) Congressional declaration.

Congress declares that a President's knowing commission, direction, authorization, material assistance, or concealment of a war crime is a grave abuse of the powers and public trust of the Office of President and is conduct properly cognizable by the House of Representatives and the Senate under the constitutional standard of high Crimes and Misdemeanors.

(b) Automatic referral.

If an inspector general, independent prosecutor, or court develops substantial evidence of conduct described in subsection (a), that official shall transmit the evidence and a statement of the applicable law to—

  1. the Speaker and minority leader of the House of Representatives;
  2. the chair and ranking minority member of the Committee on the Judiciary of the House of Representatives;
  3. the majority and minority leaders of the Senate; and
  4. the chair and ranking minority member of the Committee on the Judiciary of the Senate.

(c) House consideration.

It is the sense of Congress that a referral under subsection (b) should receive a public acknowledgment and a recorded determination by the Committee on the Judiciary of the House of Representatives whether further inquiry is warranted, subject to protection of classified information, grand-jury matter, witness safety, and ongoing criminal proceedings.

(d) Constitutional judgments preserved.

Nothing in this section—

  1. compels the House of Representatives to impeach;
  2. compels the Senate to convict or disqualify;
  3. creates a judicially enforceable right to an impeachment inquiry, article of impeachment, trial, conviction, or disqualification; or
  4. limits either chamber's constitutional authority to adopt, amend, waive, or interpret its rules and procedures.

SEC. 12. CLASSIFIED INFORMATION AND JUDICIAL REVIEW.

(a) Controlled access.

Compliance with this Act may use secure facilities, classified annexes, protective orders, substitutions, summaries, or other measures that protect properly classified information while preserving meaningful review.

(b) No categorical dismissal or noncompliance.

The classified nature of evidence does not by itself excuse preservation, inspector-general access, congressional transmission, or judicial review. A court shall consider segregability and protective measures before dismissing an action or denying access.

(c) Jurisdiction.

The United States District Court for the District of Columbia shall have jurisdiction over a civil action brought by an authorized inspector general or chamber of Congress to compel a nondiscretionary preservation, access, reporting, or transmission duty under this Act.

(d) Limits.

This section does not authorize a court to select or approve a military target prospectively, direct a prosecution, adjudicate an impeachment, or order disclosure to the general public of information properly withheld under law.

SEC. 13. RULES OF CONSTRUCTION.

(a) Constitutional authority.

Nothing in this Act shall be construed to diminish the President's authority to repel an actual attack, protect United States persons from an imminent threat, or command operations that Congress has specifically authorized.

(b) No implied immunity.

Compliance with an order, executive-branch legal opinion, or designation does not create immunity not otherwise provided by the Constitution or an Act of Congress. Reliance may be considered to the extent relevant to an element, defense, or remedy under applicable law.

(c) No implied authorization.

Nothing in this Act authorizes hostilities, creates targetable status, or expands an authorization for use of military force.

(d) More protective law preserved.

Nothing in this Act limits a protection, prohibition, remedy, or accountability mechanism supplied by the Constitution, the Uniform Code of Military Justice, the War Crimes Act, another Act of Congress, a treaty obligation, or the applicable law of armed conflict.

The existence of an armed conflict that was not specifically authorized by Congress does not relieve any person of a duty imposed by the applicable law of armed conflict.

(e) Whistleblowers.

No person may take or threaten an unfavorable personnel action because a person lawfully disclosed information reasonably believed to evidence a violation of this Act, a war crime, an unlawful order, gross mismanagement, or a substantial danger to public safety. Existing protections under section 1034 of title 10, United States Code, and other law remain available.

SEC. 14. IMPLEMENTATION AND APPROPRIATIONS.

(a) Regulations.

Not later than 180 days after enactment, the President shall issue implementing regulations after consultation with the inspectors general, the Attorney General, the Secretary of State, the Secretary of Defense, the Secretary of Homeland Security, the Director of National Intelligence, and the Commandant of the Coast Guard.

(b) Training.

Each agency with covered actors shall train relevant personnel concerning classification, target verification, evidence preservation, reporting, protected disclosures, and refusal of unlawful orders.

(c) Authorization of appropriations.

There are authorized to be appropriated such sums as may be necessary for inspector-general review, secure evidence systems, civilian-harm assessment, victim identification, family notification, implementation training, independent criminal review, and congressional reporting.

SEC. 15. EFFECTIVE DATE AND SEVERABILITY.

(a) Effective date.

Sections 4 through 9 and 11 through 14 take effect 180 days after enactment. Section 10 applies only as provided in section 10(c).

(b) Severability.

If any provision of this Act or amendment made by this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of this Act and the application of its provisions to other persons or circumstances shall not be affected.

Budgetary Impact Statement

No reliable estimate is available before operation-volume, record-system, inspector-general staffing, victim-identification, secure-reporting, and Department of Justice workload data are developed. Material costs may include preservation of sensor and intelligence records, independent review of every covered operation, civilian-harm analysis, identification and family notification, classified congressional reporting, training, and prosecution or litigation. Existing military, Coast Guard, inspector-general, and Justice Department capacity may absorb part of the workload, but the draft presently authorizes unspecified necessary sums rather than assigning an unsupported amount.

Note: Preliminary ARRP assessment only; not a CBO, OMB, agency, or legislative-counsel score.

Drafting Notes

This is an initial discussion draft, not final legislative-counsel text. Before scoring, the project should test the definitions of armed conflict and specific statutory authorization; compatibility with the War Powers Resolution and WAR-001; Articles I and II; presidential immunity; the Uniform Code of Military Justice; the War Crimes Act; Federal homicide jurisdiction; counterdrug, intelligence, Coast Guard, and Posse Comitatus authorities; treaty and customary international law; inspector-general access; classified-information procedure; standing and remedies; House rulemaking; operational feasibility; and implementation cost.

The criminal provision is prospective. The impeachment provision states Congress's institutional judgment and creates an evidentiary referral; it does not amend the Constitution or predetermine either chamber's decision. The bill should ultimately integrate DOJ-007's preferred independent-investigation mechanism while remaining independently operable if Congress enacts WAR-009 alone.