PDA

View Full Version : The Rules - Engaging HVTs & OBL



jmm99
05-05-2011, 03:28 AM
The direct action against OBL is beginning to generate discussions, which will continue so long as HVTs are out there. This topic has popped up in a number of threads; but not focused on the practical interplay between operations and operational law.

I'll start with a personal observation. Two cablenews interviews with non-active duty Seals have stuck in my mind because of one's rank (O-4) and another's civilian occupation (legislator). Both based their limited "legal" comments on a "law enforcement" (Rule of Law) approach - i.e., the default under the SROEs allowing defense of self and others in the face of a "hostile act" or "hostile threat".

Neither of them mentioned the shift in rules (to the Laws of War) once we have a designated "hostile force" and positive ID of one of its combatant members. Now I'm not jumping on these two Seals because I've got a bigger target who should know better, our to be SecDef.

From On the Legality of Killing UBL Even If He Was Unarmed (http://www.lawfareblog.com/2011/05/on-the-legality-of-killing-ubl-even-if-he-was-unarmed-and-on-the-title-50-issue/) (and On the Title 50 Issue), by Robert Chesney (4 May 2011) (emphasis added):


JIM LEHRER: What did you find out then or since about whether or not Osama bin Laden said anything to the American SEAL commandos?

LEON PANETTA: To be frank, I don’t think he had a lot of time to say anything. It was a firefight going up that compound. And by the time they got to the third floor and found bin Laden, I think it – this was all split-second action on the part of the SEALs.

JIM LEHRER: Was Osama bin Laden armed? Was he shooting back at the SEALs?

LEON PANETTA: I don’t believe so. But obviously, there were some firefights that were going on as these guys were making their way up the staircase in that compound. And when they got up there, there were some threatening moves that were made that clearly represented a clear threat to our guys. And that’s the reason they fired.

JIM LEHRER: And they had orders to fire. In other words, it was clear – it was fine with the United States government that they went in and shot this guy, right?

LEON PANETTA: The authority here was to kill bin Laden. And obviously, under the rules of engagement, if he had in fact thrown up his hands, surrendered and didn’t appear to be representing any kind of threat, then they were to capture him. But they had full authority to kill him.

This is LBS (Lima=Legal + Bravo Sierra) - or just muddled legal thinking.

Actually, Mr Panetta ought to have stuck with his prior statement on the "ROE", We Hear from Mary Ellen O’Connell (http://www.lawfareblog.com/2011/05/we-hear-from-mary-ellen-oconnell/), by Benjamin Wittes (4 May 2011):


BRIAN WILLIAMS: Did the President’s order read capture or kill or both or just one of those?

LEON PANETTA: The authorities we have on Bin Laden are to kill him. And that was made clear. But it was also, as part of their rules of engagement, if he suddenly put up his hands and offered to be captured, then–they would have the opportunity, obviously, to capture him. But that opportunity never developed.

Mr Panetta is a lawyer (JD 1963) and was an Army officer (1964-1966).

----------------------------------
This was a Naval operation at the spear's tip. What were the rules for the, say, 2 Seals who came through the bedroom door, based on the Commander's Handbook on the Law of Naval Operations (2007; NWP 1-14M).

First, some quick posits: 2001 AUMF authorizes armed force vs AQ; OBL is CinC AQ and is a combatant of a force declared hostile.

Then moving to the Handbook:


5.4.1 Combatants

Combatants are persons engaged in hostilities during an armed conflict. Combatants can be lawful or unlawful.

The term “enemy combatant” refers to a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” also includes both “lawful enemy combatants” and “unlawful enemy combatants.”

and:


8.2.1 Lawful Combatants

Lawful combatants (see paragraph 5.4.1.1) are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).

8.2.2 Unlawful Combatants

Unlawful combatants (see paragraph 5.4.1.2) who are members of forces or parties declared hostile by competent authority are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).

The same rules apply whether OBL is regarded as a lawful combatant or an unlawful combatant. First, the exception:


8.2.3 Hors de combat

Combatants, whether lawful or unlawful, who are hors de combat are those who cannot, do not, or cease to participate in hostilities due to wounds, sickness, shipwreck, surrender, or capture. They may not be intentionally or indiscriminately attacked. They may be detained (see Chapter 11 on treatment of detainees).

Not applicable under the facts as posited (door breaching, then a double tap).

Note: I'm now (2309) watching CNN which is running different versions of the facts - among them, OBL daughter is alleging his capture on the first floor and then execution in front of her and others.

What follows applies to door breaching and a double tap.

As to surrender:


8.2.3.3 Surrender

[1] Combatants, whether lawful or unlawful, cease to be subject to attack when they have individually laid down their arms and indicate clearly their wish to surrender. The law of armed conflict does not precisely define when surrender takes effect or how it may be accomplished in practical terms.

[2] Surrender involves an offer by the surrendering party (a unit or individual combatant) and an ability to accept on the part of the opponent. The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon — an attempt to surrender in the midst of an ongoing battle is neither easily communicated nor received. The issue is one of reasonableness.

[3] The mere fact that a combatant or enemy force is retreating or fleeing the battlefield, without some other positive indication of intent, does not constitute an attempt to surrender, even if such combatant or force has abandoned his or its arms or equipment.

No requirement exists that a "surrender offer" be made by the attacker. So, subject moves forward - shoot; moves right - shoot; moves left - shoot; moves back - shoot; and doesn't move - shoot. Says "I surrender" - see part [1] above.

A comment from Ken Anderson on Whether IHL Requires an Invitation to Surrender in the Context of an Attack Against a Lawful Target (http://www.lawfareblog.com/2011/05/ken-anderson-on-whether-ihl-requires-an-invitation-to-surrender-in-the-context-of-an-attack-against-a-lawful-target/), by Robert Chesney (4 May 2011) (emphasis added):


I think there is a move being made by various people like the [UN] Special Rapp to use this as an opportunity to try and re-define the law of attack by inserting into it an obligation to invite surrender that is not part of the law of war. The administration should not take the easy way out and say, okay whatever makes you happy so long as you get to yes on killing Bin Laden. The administration does not actually believe this as a matter of law, I personally doubt it behaved this way in fact in this case, it hasn’t behaved this way in other targeted killings (no air attack can meet this standard, after all), and it won’t in the future. Sliding into this move as a way of avoiding apparently unnecessary debates now simply kicks the can down the road and will end in legal tears for someone. It is far better for the administration to assert its actual legal position on this now, in the strongest factual case it could possibly come up with.

Moreover – and I am pretty sure no one has made note of this yet – if one does endorse even implicitly a “invite surrender” view, the administration will actually have both more incentives to strike from the air with drones – and more criticism. It removes the “he said-she said” over whether the person was invited or attempted surrender, while ratcheting up the legal debate over whether there is an obligation to use human teams in order to invite surrender on the ground. The administration would be undermining how its operational law officers understand the fundamental nature of attack, whether in conventional operations or special ops, by not pushing back hard on this view and rejecting it outright.
Amen, brother, amen.

Lawfare had much more of this topic today, but I just hit the highlights.

Comments on the practical military aspects of all this are welcome. Of course, if you think all of this Laws of War stuff is Bravo Sierra, you're welcome to say that.

The more I think about this event - and the lesser cases of PIDs entering buildings "somewhere", I think of my dad saying not to send a patrol when you can send some 105s. My question is, if you have positive ID and know you will get the target by some kind of "fire mission", why not just eradicate the target if you want the target dead ?

Regards

Mike

stanleywinthrop
05-05-2011, 04:00 PM
Good post, jmm, just a couple of quick questions which will show my ignorance:

1. Are you sure that "Handbook on the Law of Naval Operations" applied to this mission? Does the law follow the people (SEALs) or does the location of action determine the governing law?

2. I'm lazy. Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?

Polarbear1605
05-05-2011, 07:25 PM
I can’t tell you how much I agree with the need for this discussion. I understand, to a certain degree, why politicians blur the line between the Rules of Law and the Laws of War. My biggest issue with the “blurring’ is that our generals and admirals now follow the same practice. Again, I ain’t no lawyer; just a military mind at work here.

JMM99 has pointed out that under the Laws of War “combatants” have the legal right to kill one another; seen, unseen; planned, unplanned; in this room or in a room on the other side of the world. The only thing that changes that is when they throw their hands in the air and yell I surrender, I give up, I quit, or I want to go see Disney World Orlando. The laws are designed that way to not only allow combatants to legally kill each other out of military necessity but also, if you happened to be a combatant, provide for your self-defense (defense for country is implied ;)j/k).

Now, I am not trying to muddy the waters further but... When I first heard about this operation, it all made sense that Navy Seals were following their ROE or Laws of War. I thought that the CIA and the NCA were following the same model we used in the 2001 invasion of Afghanistan. The command structure was President to General Franks, Combat Commander Central Command, to CIA forces deployed to Combat Commander Central Command. The operation was conducted under Frank's Combat Command Authority…remember that authority cannot be delegated. Using the Combat Command made it war and therefore the Laws of Wars were in effect.

”Combat Command - Nontransferable command authority established by title 10 ("Armed Forces"), United States Code, section 164, exercised only by commanders of unified or specified combatant commands unless otherwise directed by the President or the Secretary of Defense. Combatant command (command authority) cannot be delegated and is the authority of a combatant commander to perform those functions of command over assigned forces involving organizing and employing commands and forces, assigning tasks, designating objectives, and giving authoritative direction over all aspects of military operations, joint training, and logistics necessary to accomplish the missions assigned to the command. Combatant command (command authority) should be exercised through the commanders of subordinate organizations. Normally this authority is exercised through subordinate joint force commanders and Service and/or functional component commanders. Combatant command (command authority) provides full authority to organize and employ commands and forces as the combatant commander considers necessary to accomplish assigned missions. Operational control is inherent in combatant command (command authority). Also called COCOM.”

Now it seems that the chain of command to the kill Osama mission was President, to CIA, to Joint Special Operations Command (Adm McRaven), to Navy Seal Team under title 50. Title 50? What in blazing blue balls of flame is that? (That is a rhetorical question for all you lawyers out there). I am reading title 50 now, you are going to have to give me a day or two on that I am having trouble on the repealed chapter concerning “INTERFERENCE WITH HOMING PIGEONS OWNED BY UNITED STATES”. Yep!...it is marked repealed but it is there.

So the question still stands; why do we blur the line between Laws of War and Rule of Law?:(

jmm99
05-05-2011, 08:02 PM
Thank you for the kind words. In answer to your questions.


from sw
1. Are you sure that "Handbook on the Law of Naval Operations" applied to this mission? Does the law follow the people (SEALs) or does the location of action determine the governing law?

In default of having the actual "mission order" (more than one document, I'd expect; and a bunch of annexes) and the subsidiary "commander's guidance and intent", we of lower pay grades have to be satisfied with what we can reach: Laws of War as accepted by the US; 2001 AUMF as interpreted (primarily by the DC Circuit); JCS SROEs (the unclassified open-source); and the respective service handbooks on Operational Law (Navy being as good as any under the present circumstances).


from sw
2. I'm lazy. Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?

I'm not lazy, but I am busy. So, negat. I'm not asking for "sir, I'll find out, sir"; but I do request the "I'll find out" from you.

I've many posts dealing with the AUMF and its relevance to "kill or capture" missions - all of the Gitmo detainments are based on the same basic legal analysis. Start with this post in War Crimes, Gitmo Update (http://council.smallwarsjournal.com/showpost.php?p=114174&postcount=548), and read through all the court opinions I cite, as you move to the end of the page.

Then, after understanding the Laws of War as decided by the DC Circuit, do an SWC Advanced Search on AUMF (as key word) and jmm99 (as member). I got 77 posts just now.

You'll learn nothing if I feed you a bowl of Pablum (http://en.wikipedia.org/wiki/Pablum) (my baby food; it's awful). My purpose here is not to display my own knowledge (such as it is or is not), but to educate others. Do some work.

Now, I have to run and have a PM conversation with a friend.

Regards

Mike

stanleywinthrop
05-05-2011, 08:44 PM
Thank you for the kind words. In answer to your questions.



In default of having the actual "mission order" (more than one document, I'd expect; and a bunch of annexes) and the subsidiary "commander's guidance and intent", we of lower pay grades have to be satisfied with what we can reach: Laws of War as accepted by the US; 2001 AUMF as interpreted (primarily by the DC Circuit); JCS SROEs (the unclassified open-source); and the respective service handbooks on Operational Law (Navy being as good as any under the present circumstances).



I'm not lazy, but I am busy. So, negat. I'm not asking for "sir, I'll find out, sir"; but I do request the "I'll find out" from you.

I've many posts dealing with the AUMF and its relevance to "kill or capture" missions - all of the Gitmo detainments are based on the same basic legal analysis. Start with this post in War Crimes, Gitmo Update (http://council.smallwarsjournal.com/showpost.php?p=114174&postcount=548), and read through all the court opinions I cite, as you move to the end of the page.

Then, after understanding the Laws of War as decided by the DC Circuit, do an SWC Advanced Search on AUMF (as key word) and jmm99 (as member). I got 77 posts just now.

You'll learn nothing if I feed you a bowl of Pablum (http://en.wikipedia.org/wiki/Pablum) (my baby food; it's awful). My purpose here is not to display my own knowledge (such as it is or is not), but to educate others. Do some work.

Now, I have to run and have a PM conversation with a friend.

Regards

Mike

Hey pal, you may be a pretty smart guy, but apparently you have trouble understanding my simple question. I was asking for a defintition, not a dissertation on the "AUMF and it's relation to 'kill or capture missions'", or the "law of wars" as decided by the DC circuit (as if the DC Circuit has somehow become the ultimate arbiter on internationally accepted law of war). I'm not sure what reading through "all the court opinions I cite" would do either, for if there is a simple accepted definition for what I asked they would all agree and reading them all would be repititious. However, I bet most do not even address what I asked. In fact THE COMMANDER’S
HANDBOOK ON THE LAW OF NAVAL OPERATIONS EDITION JULY 2007 provides a simple and direct definition for lawful and unlawful combatants which does not require analysis of the "AUMF and it's relation to 'kill or capture missions'" nor, "the "law of wars" as decided by the DC circuit" or "all the court opinions I cite":



5.4.1.1 Lawful Enemy Combatants
Lawful enemy combatants include members of the regular armed forces of a State party to the conflict; militia, volunteer corps, and organized resistance movements belonging to a State party to the conflict, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war; and members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power. Lawful combatants are entitled to combatant immunity—that is, they cannot be prosecuted for their lawful military actions prior to capture.
Lawful combatants also include civilians who take part in a levee en masse. A levee en masse is a spontaneous uprising by the citizens of a nonoccupied territory who take up arms to resist an invading force without having time to form themselves into regular armed units. Combatant immunity for a levee en masse ends once the invading forces have occupied the territory.
5.4.1.2 Unlawful Enemy Combatants
Unlawful enemy combatants are persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during armed conflict.

So disregard my question. Enjoy your PM.

jmm99
05-05-2011, 08:59 PM
From my link in the first post, On the Legality of Killing UBL Even If He Was Unarmed (and On the Title 50 Issue (http://www.lawfareblog.com/2011/05/on-the-legality-of-killing-ubl-even-if-he-was-unarmed-and-on-the-title-50-issue/)) - sneaky old ba$tard that I am, I hyperlinked in the OP the first half of the title, which I discussed in the OP - you will find:


Finally, apropos of my post (http://www.lawfareblog.com/2011/05/further-thoughts-on-congressional-oversight-the-ubl-operation-and-the-title-10title-50-issue/) exploring whether the UBL operation was conducted under Title 10 or Title 50 authorities, Panetta was quite clear that it was a Title 50 operation notwithstanding JSOC’s role in actually executing the attack:

LEON PANETTA: Since this was what’s called a “title 50″ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way, that direction goes to me. And then, I am, you know, the person who then commands the mission.

But having said that, I have to tell you that the real commander was Adm. McRaven because he was on site, and he was actually in charge of the military operation that went in and got bin Laden.

Moving on to the post cited, Further Thoughts on Congressional Oversight, the UBL Operation, and the Title 10/Title 50 Issue (http://www.lawfareblog.com/2011/05/further-thoughts-on-congressional-oversight-the-ubl-operation-and-the-title-10title-50-issue/):


Yesterday I posted some initial thoughts (http://www.lawfareblog.com/2011/05/congressional-oversight-traditional-military-activities-and-the-ubl-operation/) on whether the UBL operation constituted a “covert action” for statutory purposes. If so, the operation would require a presidential finding and notificiation to the SSCI and HPSCI. I argued that the operation was not a covert action, on the alternative theories that the operation was not intended to be denied and that in any event it constituted a “traditional military activity” (TMA being an explicit exception to the covert action definition).....

Some specific statutes cited, etc. - basically War Powers and Congressional Oversight. You are an inquisitive bear, aren't you ? That's good.

----------------------------
Side issue

I'm getting tired wearing a dress uniform, carrying around a slung 63" 1728 Charlesville fusil (http://www.militaryheritage.com/musket5.htm).

http://www.militaryheritage.com/images/french%20musket%201728_1.jpg

Perhaps, a new avatar of my Troupe de la Marine in the more normal uniform of the Great Lakes - and more "carbined" fusil.

http://www.militaryheritage.com/images/cwm_1.jpg

What think thee, Great White Bear (and anyone else) - still a .69 cal. ball.

Regards

Mike

jmm99
05-05-2011, 09:01 PM
from sw
So disregard my question....

"Pal", I'll leave that on the shelf where it belongs.

No regards

Mike

An Outsider
05-05-2011, 10:48 PM
As a civilian with limited knowledge of USAF doctrine and international law I'm having trouble understanding where the argument comes from on the Bin Laden apologist side. I was under the impression that as the leader of an organization who had formally declared war on the US, Bin Laden was a legitimate target of any military action that did not violate the Geneva Convention. Does this mean that they would consider it illegal for a spec ops squad to take out any enemy commander in times of war unless you give the poor bastard a chance to surrender? I appreciate your patience in advance.

Bill Moore
05-06-2011, 12:06 AM
Mike,

Too busy to read through all your great material at the moment, but I am having a hard time stomaching the so called moral/ethical debate on killing a mass murderer. This guy told the world he would never be captured alive (expectation he'll resist in any possible), and there were rumors he would always wear a suicide vest (doubt he actually had the conviction to do that), so any reasonable operator should assume that his hands are not up in the air and clearly exposing his palms he may be trying detonate a suicide vest or reach for a weapon based on his own rhetoric.

Then you have the greater good argument (maybe not a viable legal argument, but clearly one based on common sense), which is if he was captured we could reasonably expect his followers to try to take numerous hostages and demand his release.

The UN is pushing garbage as usual and after being a lukewarm supporter for years, maybe it is time we greatly reduce our funding to the UN. They don't stand up against real evil in the world, but will attempt to generate legal action and other punishment (indirectly) against the U.S. because we put up with their crap, while our enemies tell them where to get off. We're making ourselves a soft target for the UN, and it is time we toughen our stance.

Any clown that wants to come to the rescue of UBL under the guise of rule of law doesn't need to be a position where he has a credible voice in influencing American policy. As soon as we find the leads to his associates I hope the helicopters and SOF roll to kill them off also. We don't need lawyers at this point, we need leadership that recognizes we're at war and takes the appropriate action. We would have lost WWII if we followed the rules we're supposed to follow now.

jmm99
05-06-2011, 12:34 AM
from An Outsider (hey, Canucks aren't outsiders to me :))

I was under the impression that as the leader of an organization who had formally declared war on the US, Bin Laden was a legitimate target of any military action that did not violate the Geneva Convention. Does this mean that they would consider it illegal for a spec ops squad to take out any enemy commander in times of war unless you give the poor bastard a chance to surrender?

Your first sentence correctly summarizes the USG legal position as it has been formally presented. Some Obama administration personnel get off that message because they have trouble seeing anything but a "law enforcement" image (i.e., force is limited to defense of self or others in response to a hostile act or threat).

The answer to your second sentence (and question) is "yes"; many folks take the position that response to Transnational Violent Non-State Actors (such as AQ) must be via "law enforcement" rules (capture primary, with kill reserved only for defense of self or others).

The second position is very prevalent in Academia and in many EU countries. An example in US Academia is Mary Ellen O’Connell, the Robert and Marion Short Chair in Law and Research Professor of International Dispute Resolution - Kroc Institute. She is a Vice President at the American Society of International Law and the author of author of The Choice of Law Against Terrorism (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1654049), 4 J. NAT. SEC. L. & POL’Y 2010. Full pdf at One-Click Download.


Abstract:
The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.

Actually, she and I agree on the bolded sentence; except Ms O'Connell has a very limited view of "armed conflict conditions". This is just one example of why, in law, you can't agree automatically to what looks like a good principle. By their works, you will know them.

As to OBL, The Death of bin Laden as a Turning Point (http://opiniojuris.org/2011/05/03/the-death-of-bin-laden-as-a-turning-point/), by Mary Ellen O'Connell (4 May 2011) - good statement of her position (contrary to mine). Also read the comments to her article - views at Opinio Juris vary. Her update (http://afpak.foreignpolicy.com/posts/2011/05/04/the_bin_laden_aftermath_abbottabad_and_internation al_law) is summed here, More from O’Connell on bin Laden Killing as Peacetime Use of Force (http://opiniojuris.org/2011/05/04/more-from-oconnell-on-bin-ladin-killing-as-peacetime-use-of-force/), by Roger Alford (5 May 2011):


The use of lethal force is governed by two types of international law: the law of peace and the law of armed conflict. In peace, international law supports national legal systems when it comes to the resort to force. National systems restrict the use of force to law enforcement authorities — the police, or in special circumstances, the military (I argue here that the SEALs, who are military, kept their use of force at law enforcement levels). Unauthorized persons may resort to force in self-defense if necessary to save a life immediately. Otherwise, using force is considered a crime under international law.

Some crimes are so serious they are outlawed in international law, as well as national law, with the crime of terrorism is a prime example. As an international crime, states around the world have an obligation to suppress terrorism. But in suppressing even the most serious crimes, law enforcement agents must limit the amount of lethal force they use, and excessive force, even in anti-terrorism cases, has been ruled a violation of human rights law by both the European Court of Human Rights [ECHR] and the Inter-American Court.

The ECHR considered a case in 1995 with parallels to the bin Laden raid. In McCann v. The United Kingdom, the court found that members of the elite British SAS used excessive force when they killed IRA members in Gibraltar who were suspected of preparing a bombing. The court found that the operatives should have attempted to arrest the terrorists, instead of shooting them based on intelligence they possessed that the suspects were preparing to use explosives. If the suspects had resisted arrest or attempted to escape, authorities then would have had had the right to resort to lethal force.

This is the law that applied in bin Laden’s case. On May 2, no fighting was going on in Pakistan that would rise to the level of “armed conflict” as defined under international law; Pakistan had to suspend major military operations against militant groups in the country’s tribal areas after the floods of 2010. And despite what some commentators have argued, under international law there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves. The correct choice of law, therefore, was peacetime law.

No, no, Ms O'Connell - not correct at all; but you believe in what you say. I believe in what I say.

So, choice of law is the argument. What the law is under either choice is actually pretty clear to most folks who have studied it.

------------------------------
As to the Bear's research project (Title 50), also at Opinio Juris, Was the C.I.A. Director in Charge of the Bin Laden Operation? Apparently so. Does It Matter (http://opiniojuris.org/2011/05/04/was-the-cia-director-in-charge-of-the-bin-laden-operation-apparently-so-does-it-matter/)?, by John Dehn


[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy. The analysis presented here stems from his academic research of publicly available sources, not from protected operational information from, or actual involvement in, aspects of this or any other military operation.]

He does not reach a firm conclusion - work still in progress. And, he noted the importance of our topic here; but alas, did not mention SWC:


The OBL operation is an example of an evolving and unique relationship between the military and the CIA that is, in my humble opinion, under-examined and under-theorized both with respect to the international and domestic legal frameworks and as an element of civil-military relations. Over at Lawfare, a recent post by Bobby Chesney raises intelligence oversight issues about the OBL operation, which seems to me only one aspect of the necessary constitutional/domestic legal analysis. Ben Wittes solicited Mary Ellen O’Connell — twice – for her views on the international legal framework applicable to the operation. Her post below seems to present an implausible view of the attack as a law-enforcement operation. Assuming it is best characterized as a military operation conducted to IHL standards, as Kevin and Michael both seem to agree, may the C.I.A. lawfully oversee it?

He also cites and quotes some specific Title 50 text.

--------------------------------
Ah, the riddle question (as originally stated with emphasis added):


from sw
Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?

Please note and renote "as used in the AUMF".

Let's look (text in Wiki (http://en.wikipedia.org/wiki/Authorization_for_Use_of_Military_Force_Against_Te rrorists)). Gee, "combatant" ain't in the 2001 AUMF. How about that ?

The question often is a debating question - leading to "ain't in the 2001 AUMF; thence, can't be in the rules of situations covered by the 2001 AUMF; hence, you are guilty of war crimes."

Now, there is a link up between the 2001 AUMF (no combatant definitions)and the 2007 Navy Handbook (definitions) - 5.4.1.1 Lawful Enemy Combatants and 5.4.1.2 Unlawful Enemy Combatants. Gee, how could I have missed those sections. Oh, I didn't miss them - I just gave the cites to them, in The Rules - Engaging HVTs & OBL (http://council.smallwarsjournal.com/showpost.php?p=120615&postcount=1) (the OP):


5.4.1 Combatants

Combatants are persons engaged in hostilities during an armed conflict. Combatants can be lawful or unlawful.

The term “enemy combatant” refers to a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” also includes both “lawful enemy combatants” and “unlawful enemy combatants.”

and:

8.2.1 Lawful Combatants

Lawful combatants (see paragraph 5.4.1.1) are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).

8.2.2 Unlawful Combatants

Unlawful combatants (see paragraph 5.4.1.2) who are members of forces or parties declared hostile by competent authority are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).

How mean of me to miss the evening feeding.

Whoever is interested in learning something can follow my leads from the AUMF (methodology in a prior post) and come up with the answers.

Regards

Mike

jmm99
05-06-2011, 02:14 AM
Thanks for the kind words ("great materials").

I tune out others' moral and ethical debate about what should have been done to Bin Laden. My own moral and ethical beliefs about that were formed within the two weeks after 9/11 - since then I've had no internal debate. The limits imposed by my beliefs are well outside of any legal constraints that are likely to be developed.

I do react when I hear the term "assassination" used (as on CNN last nite by Piers Morgan) and allowed to stand without refutation. I conclude that few have read Hays Parks memo on "assassinations" (Peacetime) vs "targeted killing" (Wartime).

Amen on this:


from Bill Moore
As soon as we find the leads to his associates I hope the helicopters and SOF roll to kill them off also. We don't need lawyers at this point, we need leadership that recognizes we're at war and takes the appropriate action. We would have lost WWII if we followed the rules we're supposed to follow now.

The rules in the Navy Handbook are not that much different from the rules of WWII ETO, taught to me when I was about 8 by this guy (war is hell; but it should be subject to a code):

http://council.smallwarsjournal.com/attachment.php?attachmentid=1406&d=1298230141

Then, I got a little close to his personal experiences (the non-funny ones). So, he gave me his copy of his unit history (a little bit here (http://council.smallwarsjournal.com/album.php?albumid=35)) and told me to read it. Which I did; and still do - learning about many brave and honorable men.

Of course, they fought the Wehrmacht and Waffen SS, regular forces in conventional warfare. But, I believe those WWII rules can be applied to unconventional warfare against irregular forces - making appropriate adjustments for the lack of reciprocity and commission of war crimes by those irregular components. Following a code is for our long term benefit; but that code cannot be a self-imposed suicide pact.

My conclusion (and perhaps I'm Pollyanna) is that we have the legal rules (the wartime rules) and the capabilities to engage successfully under those rules. The real issue is whether there is a will to engage under those rules.

But first, I think that a lot of people have to learn what wartime rules mean. We have forgotten how to wage a war under those rules.

Nice to see you posting in one of my threads - keep busy, you old Dinosaur. :)

Regards

Mike

stanleywinthrop
05-06-2011, 02:31 PM
So, what happened to

"Pal", I'll leave that on the shelf where it belongs.

No regards

Mike ?



--------------------------------
Ah, the riddle question (as originally stated with emphasis added):



Please note and renote "as used in the AUMF".

Let's look (text in Wiki (http://en.wikipedia.org/wiki/Authorization_for_Use_of_Military_Force_Against_Te rrorists)). Gee, "combatant" ain't in the 2001 AUMF. How about that ?

The question often is a debating question - leading to "ain't in the 2001 AUMF; thence, can't be in the rules of situations covered by the 2001 AUMF; hence, you are guilty of war crimes."

Now, there is a link up between the 2001 AUMF (no combatant definitions)and the 2007 Navy Handbook (definitions) - 5.4.1.1 Lawful Enemy Combatants and 5.4.1.2 Unlawful Enemy Combatants. Gee, how could I have missed those sections. Oh, I didn't miss them - I just gave the cites to them, in The Rules - Engaging HVTs & OBL (http://council.smallwarsjournal.com/showpost.php?p=120615&postcount=1) (the OP):



How mean of me to miss the evening feeding.

Whoever is interested in learning something can follow my leads from the AUMF (methodology in a prior post) and come up with the answers.

Regards [sic]

Mike

Well thank you for showing exactly how you misinterpreted my "as originally stated with emphasis added" question. Takes a big man to admit that. Because as I "note and renote [sic] "as used in the AUMF", i still don't know how (deleted by Moderator) I suggested you "Gee, how could I have missed those sections." Further, by attempting to assign an argument which I have not made: ("The question often is a debating question - leading to "ain't in the 2001 AUMF; thence, can't be in the rules of situations covered by the 2001 AUMF; hence, you are guilty of war crimes.") (deleted by Moderator).

An Outsider
05-06-2011, 03:08 PM
It seems to me from reading Ms. McConnell's article that her argument for engaging OBL under the rules of law enforcement appears to be that he was away from a "battle zone". That seems to be a dangerous precedent to be setting in terms of international law relevant to transnational terrorism. This is saying that armed insurgencies or terrorist groups can, at will, change the set of rules under which they can be engaged by the state actors they fight simply by changing locations or hiding for a while. This would only reinforce the tactical advantage insurgent and terrorist groups have in hit-and-run tactics and erode the strategic advantage government has in having the rule of law on their side.

Why should non-state actors be immune from fighting under the rules of warfare when they openly declare war on states? Since they have no scruples in breaking both the rules of war and civilian law, why should we bend over backwards to grant them legal immunity from reciprocity after murdering thousands of innocent civilians? To limit our rules of engagement so as to increase the enemy's advantage is, in my view, not only misguided political correctness, it is counterproductive to our counter-terrorism efforts.

On a related note, this is making waves this morning:
http://www.express.co.uk/posts/view/244997/Osama-Bin-Laden-raid-4-out-of-5-shot-dead-were-unarmed

According to the defence official’s account, the first Seal team came under small-arms fire from a guest house as they entered the compound. The commandos returned fire, killing Bin Laden’s courier Ahmed al-Kuwaiti and the courier’s wife, who died in the crossfire.

The Seals were never fired on again. As they entered the main residence, they saw a man standing in the dark with one hand behind his back. Fearing he was hiding a weapon, they shot and killed the lone man, who turned out to be unarmed. However, as they moved through the house, they noticed several stashes of weapons. The team then climbed a staircase, where they ran into one of Bin Laden’s sons rushing down. They killed the son, who was also unarmed.

On the third floor, the Seals threw open the door to Bin Laden’s bedroom. One of his wives rushed towards the commando in the door, who shot her in the leg. Without hesitation, the same commando turned his gun on Bin Laden, standing in what appeared to be pyjamas, and fired two quick shots, one to the chest and one to the head.

This really caught my attention. If a combatant is unarmed and in a private residence, but intel indicates that he is likely armed and once inside the compound the squad encounters small arms fire, is it really that surprising that transnational terrorists would be considered armed and dangerous and that the SEALs would react accordingly? Furthermore, if they were going in shooting all that moved (as a lot of liberal commentators seem to insinuate), why would they shoot one of OBL's wife in the leg? What that tells me is that even in the heat of a firefight, they were very professional in trying to keep collateral damage to a minimum.

Just some thoughts. Feel free to let me know if I'm talking out of my ass :wry:

(and the name is not so much meant to be about my nationality as my status as a civilian :D)

jmm99
05-06-2011, 04:26 PM
I'll not post in response to your latest post; nor will I post in response to any other post you make at SWC.

jmm99
05-06-2011, 06:30 PM
Hello Toronto,

As to the tactical situation, I think the facts will keep changing for the simple fact that the media's sources are X steps removed from the original sources, the Seal operators. Of course, we are unlikely to see their after-action reports themselves; but, a week or two from now, may find us with firmer facts - or with a huge media circus as to what the facts "are" (with parsing of the word "are" :)).

Comments about tactics should be reserved to them "that's been there, done that" - e.g, Bill Moore and Polarbear1605 just in this immediate thread; but there is a Bn or so here at SWC that have dealt with residential buildings in one way or the other.

As to the legal situation, let's take the Express story as a hypothetical (leaving out the wife, which needlessly complicates the story; and leaving open the possibility that the final double tap came from two operators, not a material fact anyway):


[1]... the first Seal team came under small-arms fire from a guest house as they entered the compound. The commandos returned fire, killing Bin Laden’s courier Ahmed al-Kuwaiti and the courier’s wife, who died in the crossfire.

[2] The Seals were never fired on again. As they entered the main residence, they saw a man standing in the dark with one hand behind his back. Fearing he was hiding a weapon, they shot and killed the lone man, who turned out to be unarmed. However, as they moved through the house, they noticed several stashes of weapons. The team then climbed a staircase, where they ran into one of Bin Laden’s sons rushing down. They killed the son, who was also unarmed.

[3] On the third floor, the Seals threw open the door to Bin Laden’s bedroom. ... the ... commando turned his gun on Bin Laden, standing in what appeared to be pyjamas, and fired two quick shots, one to the chest and one to the head.

Legally, this is about the same situation that I set as a hypothetical one week ago in another thread here, Basic hypothetical (http://council.smallwarsjournal.com/showpost.php?p=120182&postcount=40) and (to include Astan or Pstan), A follow-up (http://council.smallwarsjournal.com/showpost.php?p=120282&postcount=52). Various comments to those posts also apply here.

Going through the three parts of the legal situation:

1. "...came under small-arms fire". Not material under broad rules , though it provides two reasons to shoot. The wife's death introduces the issue of "collateral damage" (a term I dislike, but that is what is used). That gets into another set of rules.

2. "The Seals were never fired on again" - not material to a declared hostile force situation, though I suppose one might say that male + nearby arms = a hostile threat. The key factual issue in a declared hostile force situation is positive ID (PID). The AQ guys don't wear uniforms and are among civilians trying to look like civilians. Which is one factor as to why more civilians have been killed since WWII than combatants.

3. OBL is a PID and can be killed unless he manages to surrender before he is shot. No requirement exists that an attacker make surrender offers.

The foregoing is a simplistic explanation. Life is more complex even under "broad rules" of war. More "restrictive rules" make life even more complex for the attacker.

-------------

Working Definitions

I use "rules" generically, including Laws of War (LoW; aka Laws of Armed Conflict, International Humanitarian Law; including various conventions and some state practices), Rules of Engagement (ROEs, includes Standing Rules of Engagement, SROEs, developed by US JCS), Rules for Use of Force (RUFs; including SRUFs), Rules for Escalation of Force (EOF).

I am using "broad rules" as shorthand for US Wartime rules (Hague + 1949 Geneva + US additions), where kill is allowed if either set of facts exist:

1. The target presents a hostile act or hostile threat and is killed in the defense of self or others; OR

2. The target is positively ID'd as a member of an armed force declared to be hostile - whether the target is then armed or otherwise hostile is not material;

and, where, the burden of making non-combatants and civilians safe is placed on the defenders of the targeted location, not on the attackers.

The rights of the attacker are limited by more "restrictive rules", as in the 2009 San Remo ROE Handbook, which I have to discuss at some point; along with some points asserted by Ms O'Connell in her more formal 2010 article.

For example, the burden of protecting non-combatants and civilians in a building could be cast on the attacker; the declared hostile force rule could be removed; and the target would have to directly participate in hostilities.

In short, under "restrictive rules", the Seal going into the OBL residence might have fewer rights in his favor than I do under Michigan law if I am confronted by a home invader.

Regards

Mike

An Outsider
05-06-2011, 08:13 PM
Thanks, Mike, for your ever-direct response. Sounds to me like it's a delicate legal question that will have to be addressed sooner rather than later if we are to have clear parameters for engaging HVTs in the future. I only hope that the view that you, I, and, as far as I can tell, most of SWJ hold on the legality of such a raid prevails under international scrutiny or I despair at the future of global counter-terrorism.

Regards,

Stefan

Entropy
05-06-2011, 09:18 PM
Mike,

So does the AUMF trump the indictment? Or, since the indictment still exists can the President decide which "tool" to use based on his own judgment? In other words, was the decision to try to kill UBL or arrest UBL ultimately a policy decision and not a legal decision?

jmm99
05-06-2011, 11:41 PM
re: this -


from Entropy
So does the AUMF trump the indictment? Or, since the indictment still exists can the President decide which "tool" to use based on his own judgment? In other words, was the decision to try to kill UBL or arrest UBL ultimately a policy decision and not a legal decision?

except for the "extra" CIA stuff - so, this chart still holds as the current USG position (expressly affirmed as to detention by the DC Circuit in many cases; implicitly, those decision affirm the kill option under the AUMF):

1466

The red boxes are a combo CIA-DoD effort (Title 50 + Title 10) - a kill result obviously goes no further.

If a capture, with CIA as lead, the agency now has to hand off detention to either DoJ (indictment) or DoD (detention only or military commission trial). As we have seen, these folks can be bounced back and forth between DoJ and DoD. Follow the blue arrows and lines.

Ah, what a Powerpoint Ranger I would have made :D

Good question. The simple answer is that everything is a Presidential policy decision, with some Congressional oversight.

I'll do the opposing view later.

Regards

Mike

jmm99
05-07-2011, 03:37 AM
as presented by Mary Ellen O’Connell, Robert and Marion Short Professor of Law, Fighting Irish Law (2010; SSM Download (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1654049)) (26 pages).

All quotes below are from pp.4-6 (emphasis added by JMM):


It is true that under international law in an armed conflict, enemy fighters may be targeted and killed in situations not permitted in peace. Certain persons may also be detained without trial or tried before military commissions. Many important human rights protections may be relaxed or derogated from in the exigencies of armed conflict. This shift in the law occurs only upon the emergence of armed conflict. It is, therefore, critical to understand what an armed conflict is in international law to make an appropriate choice of law between the law that prevails in peace and the law that may be applied during an armed conflict. This choice between bodies of international legal rules is, in turn, governed by international law. It is not a matter of policy or discretion.

JMM: The first bolded sentence is unexceptionable, but totally depends on the allowable scope of armed conflict. The second bolded sentence is exceptionable - unless one exaults international law over the US Constitution.


Under international law the existence of an armed conflict is determined on the basis of certain objective criteria. Prior to the adoption of the United Nations Charter in 1945 a state could declare a legal state of war even without the firing of a single shot. That is no longer the case. Today, we assess facts on the ground to determine the legal state of armed conflict. There must be organized armed fighting of some intensity for armed conflict to exist. This is not an entirely objective standard. The level of intensity is open to subjective assessment. And situations of violence may wax and wane leading to gray areas when situations are not clearly armed conflict. Nevertheless, the restrictive rules on the right to resort to military force as well as the importance of respecting human rights indicate that in such cases, law-abiding states act in conformity with the law prevailing in peace.

JMM: Who is the all-powerful determining "we" ? Hey, I'm a Tonto.


This does not mean states are left defenseless against terrorism. Peacetime criminal law and law enforcement methods permit the use of lethal force and stringent punishment of terrorists. Moreover, as will be discussed below, law enforcement methods are far more successful in ending terrorists groups than military force. It must be emphasized, however, that most of the examples reviewed above are not unclear cases. Most occurred far from any armed conflict where peacetime law applied. Under peacetime law, a person suspected of terrorism has the right to a fair and speedy trial before a regular court. Law enforcement authorities may use lethal force but only when absolutely necessary, a standard that the current generation of drones can rarely meet.

JMM: The foregoing is not an assertion of law, but an assertion of the superiority of a specific strategy and tactics - and exclusion of other options.


The assessment of facts to determine if peacetime law or the law of armed conflict is the right choice involves the same analysis used in resolving other choice of law questions. Lawyers and judges constantly make choice of law decisions. Choice of law is part of the consideration of every legal matter. In most cases the choice is probably obvious and requires no particular effort.

JMM: This is basically a formalistic approach to the application of doctrinal law to set facts - no fog or friction in that approach - which is Lima Bravo Sierra.


A good many issues do require careful consideration, however, and for those we have choice of law rules. Choice of law rules steer us toward the proper law for any particular matter, whether local, national, regional, or international law. If the matter implicates an international boundary, international choice of law rules will guide the choice.

JMM: I've omitted the brief discussion on choice of law between an Indiana seller and French buyer. That example is simply immaterial to the present case. Choice of laws or conflict of laws is and always has been an arena involving both international laws and domestic laws - envoi et renvoi are not that unusual. The ever-present issue to the practitioner (JMM) is which court gets its teeth into the case. Often more than one court gets into the act - and they, acting on supposedly the same choice of law rules, arrive at conflicting results.


In the terrorism-related cases discussed above, international law also determines the choice of law. In these cases, international choice of law rules sends us, generally, to the domestic criminal law of the United States, Pakistan, Yemen, and other states. It does not send us to the law of armed conflict.

JMM: I'm hard pressed to find much of the "terrorism-related cases discussed above". I think the word "above" should be "below" (pages after p.6) where the author does cite many cases prosecuting "terrorists" under domestic criminal laws - which do not exclude other options.

A key source to the author is:


14 See INTERNATIONAL LAW ASSOCIATION, DRAFT FINAL REPORT OF THE USE OF FORCE COMMITTEE, THE MEANING OF ARMED CONFLICT IN INTERNATIONAL LAW 8 (June 2010), available at www.ila-hq.org [hereinafter INTERNATIONAL LAW ASSOCIATION, DRAFT FINAL REPORT].

Pdf LINK (http://www.ila-hq.org/download.cfm/docid/2176DC63-D268-4133-8989A664754F9F87); also this, The International Law of Drones (http://www.asil.org/insights101112.cfm), By Mary Ellen O’Connell (with lots of ILA links).

Hey, Entropy, an opportunity - :)

Jumping to p.14, where I Law (as determined by ILACUF) replaces CvC, Jomini and everyone else we study:


According to a study by the International Law Association‘s Committee on the Use of Force, international law defines armed conflict as always having at least two minimum characteristics: 1.) the presence of organized armed groups that are 2.) engaged in intense inter-group fighting.[63] The fighting or hostilities of an armed conflict occurs within limited zones, referred to as combat zones, theaters of operation, or similar terms. It is only in such zones that killing enemy combatants or those taking a direct part in hostilities is permissible.[64]

Because armed conflict requires a certain intensity of fighting, the isolated terrorist attack, regardless of how serious the consequences, is not an armed conflict.[65]

63 INTERNATIONAL LAW ASSOCIATION, DRAFT FINAL REPORT, supra note 14.

64 The combat zone is a critical concept to the lawful waging of armed conflict. Today, the right to resort to armed force (jus ad bellum) is triggered by an armed attack or Security Council authorization in response to a threat to the peace, breach of the peace or act of aggression. The lawful response to those provocations must be calibrated to be necessary and proportionate in the circumstances. This means the old claim that a state may attack the opponent‘s forces anywhere they are found is no longer supportable. A parallel principle is found in the jus in bello. Combatants may not kill the enemy wherever they find him, but only when reasonably necessary. This means a combatant may kill another person fighting against him in a combat zone, but someone away from the combat, who may be captured, may not be killed. For a more full discussion of these points and the law supporting them, see Mary Ellen O‘Connell, Combatants and the Combat Zone, 43 U. RICH. L. REV. 845 (2009); Christopher Greenwood, Scope of Application of Humanitarian Law, in THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW 45, 61-2 (Dieter Fleck ed., 2d ed. 2008); JUDITH GARDAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE BY STATES (2004); see also infra p. ___.

65 A significant armed attack may trigger the right to resort to armed force but an armed attack is not an armed conflict unless it is launched by an organized armed group and is responded to with the use of significant military force by another organized armed group. Thus the 9/11 attacks were found to be significant enough to trigger a right to respond under Article 51 of the UN Charter (see UN Security Council Resolution 1368) but an armed conflict did not follow until the United States and United Kingdom responded with significant military force in Afghanistan. Afghanistan was determined by the U.S. and U.K. to have been responsible for the 9/11 attacks, thus giving rise to the right to use force against it. For a detailed discussion of state practice and International Court of Justice decisions relevant to this law, see Mary Ellen O‘Connell, Preserving the Peace: The Continuing Ban on War Between States, 38 CAL. W. INT‘L L.J. 41 (2007) and Mary Ellen O‘Connell, Lawful Self-Defense to Terrorism, 63 U. PITT. L. REV. 889, 889-904 (2002).
Comment on the above from a military standpoint.

Regards

Mike

jmm99
05-07-2011, 06:44 PM
here continuing to resource the O'Connell arguments in opposition to my conclusions (and the current USG position) ...

Combatants and the Combat Zone (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1332096), Mary Ellen O'Connell, Notre Dame Law School, January 23, 2009


Abstract:

Following the attacks of 9/11, President George W. Bush declared that the United States was in a "global war on terrorism". His administration claimed the wartime privileges to kill without warning and detain without trial anyone suspected of association with terrorist organizations anywhere in the world. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender.

Preserving the Peace: The Continuing Ban on War between States (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1168300), Mary Ellen O'Connell, Notre Dame Law School, July 22, 2008


Abstract:

The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the three primary sources of international law yield important rules restricting the use of force. The rules on use of force, like all international law rules, are binding on states for the same reason the law of any jurisdiction binds - because it is accepted as law by the community.

The following remarks on the rules regulating the use of force are divided into three parts. Part I provides a brief history and overview of the current rules on the use of force. Part II applies these rules to assertions that the United States could lawfully attack Iran today. Part III then discusses why these rules are binding as law and answers arguments to the contrary. These remarks will, therefore, touch on the past, present, and future of the law on the use of force to preserve the peace between states.

The Myth of Preemptive Self-Defense (http://www.asil.org/taskforce/oconnell.pdf), Mary Ellen O’Connell, Professor of Law, The Moritz College of Law and Associate of the Mershon Center for International Security and Public Policy, The Ohio State University, August 2002 (emphasis added):


Conclusion

The international law of self-defense supports the American use of force in Afghanistan. After the devastating attacks of September 11, the United States had the right to defend itself against continuing terrorist attacks mounted from Afghan territory. The United States has no right, however, to invade another state because of speculative concerns about that state's possible future actions. The current international order does not support a special status for the United States or a singular right to exempt itself from the law. To maintain a legal order that restrains other states and to uphold the rule of law, the United States should continue its conservative commitment to limits on the unilateral use of force, and reject a reckless doctrine of preemptive self-defense.

In this almost decade-old article, some commonality does exist (the first two sentences) - but I would present a different editorial slant (vs the rest of her conclusion).

But not here, since that would get into my beliefs summarized as "Never Again, but..."; and require regression back into the later 1970s and what I believed ought to have been done then. What would have happened is pure speculation and that regression will not be made.

Regards

Mike

jmm99
05-07-2011, 07:16 PM
Pakistan's Sovereignty and the Killing of Osama Bin Laden (http://www.asil.org/insights110505.cfm), By Ashley S. Deeks, May 5, 2011.

This article tends to a Fiddler on the Roof methodology - on one hand, on the other hand; on one hand, on the other hand ... I have long since reached the point where there is no other hand; although, I suppose there is still that "but" in my "Never Again, but ..."

Here is Ms Deeks BLUF:


Conclusion

The facts and politics in this case make it unlikely that Pakistan’s defense of its sovereignty will find significant international support. Nevertheless, it would be useful as a matter of international law for states to agree that the “unwilling or unable” test is the correct test for situations such as the U.S. raid against Bin Laden in Pakistan and to provide additional content to that test. Doing so potentially could serve international law’s interests by minimizing legal disagreements at times when political and factual disagreements are running high.

JMM: Frankly, I think these are political questions to be settled in one way or the other by the two states. State action could range from a diplomatic protest to a declaration of war. Here, Pstan elected to protest (from article):


In the wake of the successful U.S. military operation, the Pakistan Government objected to the “unauthorized unilateral action” by the United States and cautioned that the event “shall not serve as a future precedent for any state.”[1] Former President Musharraf complained that the operation violated Pakistan’s sovereignty.[2]

[1] Jane Perlez & David Rohde, Pakistan Pushes Back Against U.S. Criticism on Bin Laden (http://www.nytimes.com/2011/05/04/world/asia/04pakistan.html), N.Y. Times, May 3, 2011.

[2] See, e.g., John Bacon, Musharraf: U.S. Violated Pakistan’s Sovereignty (http://content.usatoday.com/communities/ondeadline/post/2011/05/musharraf-us-violated-pakistan-sovereignity/1), USA Today, May 3, 2011,

Pstan's remedy under I Law was elected and made by it.

I don't see that process (state to state "interaction") as malign. However, those who would like to see a "World Court" take jurisdiction, are inclined to follow along with the 1986 ICJ Nic Farce (cited in the article):


[7] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 194 (June 27) (“The Parties also agree in holding that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defence.”); Yoram Dinstein, War, Aggression and Self-Defense 207-12 (3d ed. 2001); Christine D. Gray, International Law and the Use of Force 148 (3d ed. 2008) (“As part of the basic core of self-defense all states agree that self-defence must be necessary and proportionate.”).

In reality, recourse to any existing (or proposed) judicial system, for determination of what are really political-military questions, will fail because the process is too slow and cumbersome. That is one reason why I do not want us (US) to become involved in an international Bleak House.

Regards

Mike

LawVol
05-08-2011, 05:16 AM
I came across this today: UN wants answers (http://http://newsinfo.inquirer.net/breakingnews/world/view/20110506-334975/UN-rights-experts-press-US-over-bin-Laden-killing)

the money quote:
"However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment."

I'm sure PolarBear will have a few words to say on this and I bet we'll agree. :D This is a parsing of laws, nothing more. I've been following the discussion regarding location of the operation. Mike has done a much better job that I ever could explaining this "wrinkle."

This, I think, is what PolarBear is getting at (please correct me, if I'm wrong). Blending the law of war and criminal law (I'll use this term rather than RoL since I view RoL as much broader and it was this broader view that led to my slight disagreement with previous RoL vs LoW arguments) leads to confusion on the battlefield. Which rules apply? Can I be prosecuted for taking action? And so on....

I do view RoL as much broader than some and believe it encompasses criminal law, law of war, and many other types of law. Thus, when a military unit engages combatants (lawful or otherwise), captures some, and then turns them over for prosecution, I see this as seemless RoL. In contrast, using military in a law enforcement role akin to what the UN apparently expects according to the story linked above, RoL is still seemless and in effect. In combatting insurgents/terrorists, the opposing force is permitted to choose its own strategy so long as it complies with law. The US has chosen to prosecute a "war" subject to the international laws regarding the conduct of war. The legality of this, I think, is beyond doubt given that many other countries have chosen to do the same (and one might even link the UN-approved action in Libya as support for this approach). Thus, while the UN approach is a lawful one regarding combatting terrorism, it is not the only lawful one.

Now, had bin Laden been captured I think we'd see a trial and thus criminal law would take over. However, this would make the OJ trial look like a common law legal system at its perfection. Thus, having him dead is a much better result in the long run IMO (see the Machiavelli quote below).

Of course, all this would be for nought if Obama had simply made an announcement and left it at that. By constantly changing the story, he has invited criticism. See this analysis (http://freerangeinternational.com/blog/?p=4137)for a much better outline of the problem than I could offer.

BTW, I see this UN thing is classic lawfare but that's another discussion...

LawVol
05-08-2011, 05:27 AM
For those rejecting the requirement of a nexus netween location of a combatant and the lawfulness of the target: when do US personnel become a lawful target?

Is the President a lawful target despite the fact that he is not in a combat zone? He does direct the war effort, right? What about Joe Schmoe back on the block? Is he a lawful target while he's chillin' in front of his TV? If not, how do you distinguish the lawfulness of targetting bin Laden while he is off the battlefield?

stirring the pot...:D

jmm99
05-08-2011, 07:41 PM
looks like you're rolling along (http://down-the-hole.blogspot.com/).

The UN's Future Role & One's Worldview

Briefly on the UN. An elite, influential and well-financed group expreses its opinions (Ms O'Connell is but one of many) - and attempts to shape I Law, the "Rule of Law" and the "Laws of War" - along with their Worldview of UNC Art. 2(4). That, in its purest state to them, would expressly say: "Members shall not employ force or the threat of force except upon express authority granted by the UN." The UN then would have, in a Weberian sense, a monopoly on the lawful use of force (violence) - and, in Weberian terms, would become the transnational state.

We who believe otherwise should not delude ourselves into thinking that this challenge can be met by well-stated legal arguments. Those are a waste of time and effort for the most part. What is required is Political Struggle to marginalize them (non-violent, of course, following Gene Sharp (http://council.smallwarsjournal.com/showthread.php?goto=newpost&t=12579)) using a methodology similar to that used by the NRA and the Second Amendment Foundation.

FYI, the present UNC Art. 2(4) is:


All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

and could be re-phrased as follows (going from a negative commandment to a positive allowance with negative exceptions):


All Members in their international relations may employ the threat or use of force provided that threat or use of force is neither against the territorial integrity or political independence of any state, nor in any other manner inconsistent with the Purposes of the United Nations.

One's Worldview definitely enters into this discussion.

----------------------------------------
Who can kill Whom ?


from Da LawVol
[1] Is the President a lawful target despite the fact that he is not in a combat zone? He does direct the war effort, right? [2] What about Joe Schmoe back on the block? Is he a lawful target while he's chillin' in front of his TV? [3] If not, how do you distinguish the lawfulness of targetting bin Laden while he is off the battlefield?

1. To a combatant with combatant immunity, POTUS is a lawful target because of his CinC position. To a combatant without combatant immunity, no one is a lawful target because that combatant can be prosecuted in a court of law. To which threat, that combatant probably says "Big Deal. FO" and goes about his business. In state to state conventional warfare, targeted killings of CinCs have been avoided as a matter of comity (not illegality).

2. Joe Schmoe - what channel is he watching: FoxNews, CNN or MSNBC ? :D Seriously, going the other way (Us vs Them), the issues under US law hinge on a person being (1) "part of" a TVNSA; (2) part of an "affiliated group"; OR (3) a "provider of material support" to such a group or groups. Again, To a combatant without combatant immunity, no one is a lawful target because that combatant can be prosecuted in a court of law. In which case, he is not likely to be carried by six.

3. Mandatory reading is Executive Order 12333 and Assassination (http://council.smallwarsjournal.com/attachment.php?attachmentid=1426&d=1301111819) (1989, by W. Hays Parks) - never bettered in 9 pages:


In a Memorandum of Law originally dated November 2, 1989, W. Hays Parks, Special Assistant for Law of War Matters to The Judge Advocate General of the Army, examined national and international legal interpretations of assassination in order to provide guidance in revising a U.S. Army Law of War Manual. The memo is not a statement of policy, but rather a discussion of the definition of assassination and legal issues to consider in its application, including levels of conflict and the distinction between assassination in wartime and peacetime. It explores the meaning and possible application of assassination - which is prohibited as a matter of national policy by Executive Order 12333 - in conventional, counterinsurgency, and counter-terrorist operations. The memo concludes that the use of military force against legitimate targets that threaten U.S. citizens or national security as determined by the President does not constitute assassination and would therefore not be prohibited by Executive Order 12333 or by international law.

This memo, in truth, was written by a Marine for Marines, who (as Polarbear1605 has recently advised me) can only read one word at a time. :D

Regards

Mike

LawVol
05-09-2011, 09:23 AM
You're reworded version of Art 2(4) is how I've always viewed it. That put me in the minority among my multi-national peers at McGill. :wry: I know there are many who subscribe to the worldview you mentioned, but it that really a serious threat? Maybe I just haven't been paying attention or I read the wrong stuff. It would seem that state action negates any possibility of this view being cemented. And given China's views on sovereignty, they would actually ally with the US on this issue I think. :eek:

Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense. But what about so-called freedom fighters? By this I'm referring to the Geneva protocol (the first I think) that redefines combatant to remove the requirement of a uniform. I'm going off memory here, so I could have it a bit off. Let's assume we're fighting Hamas (which would probably fall within this status) or even the Iraq Republican Guard circa 2003. Would Joe be a lawful target to them while he's chillin' in Bean Town?

A secondary consideration to consider: if we say a Talib conducting a mission in Boston has no lawful target due to his status, are we being consistent? Another words, we treat him as a criminal, but not when it comes to engaging him. Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? If a member of a state force commits war crimes, can't he still engage lawful targets later on? Am I making sense here or do I need to restate?

Polarbear1605
05-09-2011, 04:25 PM
Hmmm....definitely like the new uniform... not only do the leather leggings reflect adaptation to the situation but also the mockensons show the implemented of the latest stealth technology and the dash of treachery a good tactician learns in dealing with the enemy.

As for the weapon...any weapon that has a caliber of 45 or greater is always welcome.

Now in researching these Marines I fouund this:
http://www.brasenhill.com/wp-content/uploads/2008/10/fonteneau-front.jpg

We need to analyse this phote for a sec or two. The good sargeant was stationed at Fout Toulouse (AL assuming) in 1730. He was 44 at the time. He passed (at the fort and still on duty) in 1755 probably 68+ years old. So... stationed at the fort from 44 to 68 AND the marker is dedicated to his proliferation or as he is a "progentor" (for you Marines out there that means forefather) of ALL Fontenots on North America...quite the reputation...and we thought George Washingtom slept in a lot of places. Moral of the story...at least one fort commander realize that the speed and agility of youth is equal to or less than the experience and knowledge of (shall we say) a mature warrior. jmm99 - the pic shows there is still hope for us old guys.




From my link in the first post, On the Legality of Killing UBL Even If He Was Unarmed (and On the Title 50 Issue (http://www.lawfareblog.com/2011/05/on-the-legality-of-killing-ubl-even-if-he-was-unarmed-and-on-the-title-50-issue/)) - sneaky old ba$tard that I am, I hyperlinked in the OP the first half of the title, which I discussed in the OP - you will find:



Moving on to the post cited, Further Thoughts on Congressional Oversight, the UBL Operation, and the Title 10/Title 50 Issue (http://www.lawfareblog.com/2011/05/further-thoughts-on-congressional-oversight-the-ubl-operation-and-the-title-10title-50-issue/):



Some specific statutes cited, etc. - basically War Powers and Congressional Oversight. You are an inquisitive bear, aren't you ? That's good.

----------------------------
Side issue

I'm getting tired wearing a dress uniform, carrying around a slung 63" 1728 Charlesville fusil (http://www.militaryheritage.com/musket5.htm).

http://www.militaryheritage.com/images/french%20musket%201728_1.jpg

Perhaps, a new avatar of my Troupe de la Marine in the more normal uniform of the Great Lakes - and more "carbined" fusil.

http://www.militaryheritage.com/images/cwm_1.jpg

What think thee, Great White Bear (and anyone else) - still a .69 cal. ball.

Regards

Mike

jmm99
05-09-2011, 06:39 PM
I'd suspect that 99.9% of any surveyed country would not know, and could care less about, differing views of UNC Art. 2(4). On the other hand, far more folks (over the Globe) have more definite and divergent views on "gun control" (depending on how one defines "gun control").

As to a "serious threat", I don't see Mary Ellen O'Connell as a "threat" to me in any form; and I'm sure not going to threaten her or anyone else with physical harm.

As I said, it's a "Political Struggle". As to that, some will support your political beliefs, others will oppose them; but most people on most issues are neutral or leaners.

Thus, he or she who says "if you are not for me (my beliefs), you are against me (my beliefs)", has elected to make many, many enemies.

Cheers

Mike

jmm99
05-09-2011, 06:50 PM
Leaving the Sidedish and Back to the Meat

1949 and 1977 GCs, etc., quoted below, etc. - at ICRC, The Geneva Conventions Index (http://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/index.jsp).


from LawVol
[1] Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense. [2] But what about so-called freedom fighters? By this I'm referring to the Geneva protocol (the first I think) that redefines combatant to remove the requirement of a uniform. I'm going off memory here, so I could have it a bit off. [3] Let's assume we're fighting Hamas (which would probably fall within this status) or even the Iraq Republican Guard circa 2003. Would Joe be a lawful target to them while he's chillin' in Bean Town?

Taking the three parts separately.

1. "illegal combatant"


[1] Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense.

Probably better than "illegal combatant" or "unlawful combatant" would be a division between "combatant with combatant immunity" and "combatant without combatant immunity". Of what "immunity" do we speak ? We speak of "immunity" from prosecution for a "civilian" crime or a "military" crime - homicide, maiming and kidnapping would be the generic equivalent of the acts granted "immunity" on the battlefield. The "immunity" is conditional and requires compliance with the "rules of warfare" on the part of the combatant and the group he fights for.

Me thinks that is a tempest in a teapot for folks engaged in irregular warfare as irregular combatants (who may or may not be "combatants with combatant immunity"). If they are facing death or indefinite detention simply because they are an irregular combatant (a Common Article 3 combatant), the prospect of being captured and tried before a civilian court or military commission is not likely to be a material consideration as they consider combat.

That seems to be the case with all TVNSA (Transnational Violent Non-State Actors) and DVNSA (Domestic Violent Non-State Actors) groups. None of them have (to my knowledge) availed themselves of the opportunity to avail themselves of protected status, by accepting and applying the Geneva Conventions, under the option of Common Article 2 (para 3) of the 1949 GCs (emphasis added):


Art. 2.

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

That option has been available to AQ, the various Taliban and all the other groups of consequence ("Powers") in an "armed conflict" involving one or more Contracting Parties to the Conventions.

Why have these VNSAs not availed themselves of Common Article 2 ? Because they want to have their cake and eat it - in short, to be transitory combatants who can turn their civilian status off (to become combatants when they "directly participate in hostilites") and then on again as they cease being "hostile" and return to hiding among the civilians.

2. But what about so-called freedom fighters?

Additional Protocal I (1977) - not accepted by US, but accepted by most ISAF partners - amends Common Article 2 drastically, by its Art. 1 (emphasis added):


Art 1. General principles and scope of application

1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances.

2. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

Please note the use of "self-determination" - a term with which I am very uncomfortable, unless it is defined in a mutually-agreed "working definition" with whomever is discussing the term.

The "transitory combatant" provisions are based on Art. 1(4) and on Art. 43 (emphasis added):


Art 43. Armed forces

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

and with more exemplification in Art. 44 and 45.

These provisions make the option of Common Article 2 (that available to all Powers in a conflict) mandatory - including "compliance with the rules of international law applicable in armed conflict", Art. 43(1).

Thus, along with the combatant immunity provided by Art. 43(2), goes a reciprocal obligation to apply the rules of armed conflict. Is there a guerrilla group (there must be at least one ;)) that applies the rules of armed conflict ? If not, then they should be prosecuted for "war crimes", shouldn't they ? Of course, to a dedicated fanatic, the threat of potential criminal prosecutions would seem to a "Big Deal ! FO" situation.

3. Would Joe be a lawful target to them while he's chillin' in Bean Town?

Joe is presumptively a civilian; and can be detained only for reasons of security by (say) an occupying power. He can be whacked only if he is in some way participating (let's leave aside the "directly" or not issue) in an armed conflict. The strength of legal argument for whacking him runs downhill from (1) he is "part of" an armed force; (2) he is part of an "affiliated group" to an armed force; OR (3) he is a "provider of material support" to such a force or forces.

Last point


from LawVol
A secondary consideration to consider: if we say a Talib conducting a mission in Boston has no lawful target due to his status, are we being consistent? Another words, we treat him as a criminal, but not when it comes to engaging him. Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? If a member of a state force commits war crimes, can't he still engage lawful targets later on? Am I making sense here or do I need to restate?

You probably need to restate. My Colonial Marine ancetors were "a-letter-rate"; I h a v e t o r e a d o n e l e t t e r a t a t i m e; some were illiterate cuz their mothers were'nt married (what a dumb joke); and none went to McGill Univ.

Beyond all that, you are mixing your Laws of War and Rule of Law. Here's my analysis:

The Talib is on a military mission wherein he is directly participating in hostilities (if he's not, this line of analysis does not apply) by killing Mark Martins as he emerges from the sacred entrance of Harvard Law. The Talib is a combatant under either the 1949 Geneva Conventions (Common Article 3) or under Additional Protocol I (Talib "self-determination" and all that :rolleyes:). If he wastes Martins in an approved "Hague-Geneva" manner, he has committed no "war crime". However, if only the 1949 GCs apply, the Talib could be prosecuted for any number of US Code violations.

I don't see the problem here - except the Tallib is not likely concerned with having to appear in Federal Court.

To the subsidiary questions:

Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? - YES.

If a member of a state force commits war crimes, can't he still engage lawful targets later on? - YES

Regards

Mike

Bob's World
05-09-2011, 07:25 PM
I think this is one where the President should simply say "As the President of the United States of America, by special Presidential Directive, I ordered the killing of Usama bin Laden. We take the law serious and everyone involved in this mission was covered by my legal directive. Next quesion."

jmm99
05-09-2011, 08:26 PM
showing the Colonial Marine undress uniform ("BDU") carved in stone. :)

In battle even less might be worn. In 1755, Capt. Daniel-Hyacinthe-Marie Liénard de Beaujeu led the charge against Braddock at Fort Duquesne. Capt. Claude-Pierre Pécaudy de Contrecœur, the fort's commandant, was too old and sick to take the field. Beaujeau stripped to leggings and mocs, putting on only his grade gorget. The gorget must have made a good target because he was killed by Gage's first volley. Beaujeu's five companies of Colonial Marines (each less than 2/3 of today's USMC platoon), some 100 FC militia and some 600 Indians ("coalition partners") then went on to inflict carnage.

It is not unusual for one pair of ancestors to underpin a French-Canadian surname - or French-Lousianan surname, as in the case of Sgt. Fontenot (Fonteneau). They didn''t have to switch beds to do so; they just had a lot of kids (link (http://www.myspace.com/louisianacreoles/blog/356914183)):


Jean Louis joined the French Colonial Marines as a young man and left France in 1720, at the age of 34, for assignment in the Mobile (Alabama) military district. Six years later (February 8, 1726) he married a widow from New Orleans (Marie Louise Henrique) and was assigned to the Poste aux Alabama (Fort Toulouse) shortly afterwards. Based on "roll call" records at the fort in the mid 1700s, it appears that Jean Louis was the only sergeant at the garrison of about 40 soldiers. He and Marie Louise had twelve children, 8 sons and 4 daughters, all born at the post. When these children became of age (teenagers), the boys joined the marines and married daughters of other marines and the girls married sons of other marines at the fort.

So true also in Canada - Marines married into Marine families (also fur trading and riverine trading families - the three groups fed on each other); their kids became Marines (or militia officers); etc., etc.

Not all Marines engaged in sharp battles ala Beaujeu. A lot of time was spent in garrison - and promotion was very slow. Moreover, much of their activity outside garrison was directed at the "Rule of Law", rather than "Laws of War". LawVol may appreciate this story - from Philippe de Rigault, Marquis de Vaudreuil, Letter, October 12, 1717 (link (http://gbl.indiana.edu/ethnohistory/archives/dockett_317/317_22k.html)) (pp.592-593):


The trouble which prevented the principal chiefs of the Detroit tribes from coming to Montreal, was created by an Outaouac of that post and four others from Saguinan. These five men pretended they were going to war against the Flatheads; they proceeded to the river of the Miamis and there slew an Iroquois and his wife, who was a Miami woman, and two children. This wrongful attack concerns the Iroquois because the man who was killed was of their tribe. It also concerns the Miamis, for the man was married and living with them. This matter must be settled, and the Iroquois and Miamis must be prevented from taking vengeance on the Outavois and the other tribes of Detroit.

The Sr. de Tonty has already begun, for his part, to take action with the Miamis through the Sr. de Vincennes to dissuade them from their intention of avenging themselves and to remove every pretext for their pursuing this course which would give rise to a war between them and the people at Detroit and Saguinan, which it would be difficult to stop. He has induced the tribes of Detroit to join him in sending to Saguinan to seize these murderers and deliver them up to the Miamis.

The Outaouacs and Poutouatamis each sent a boat of their men, to which the Sr. de Tonty added a boat of Frenchmen under the command of the Sr. de Bragelongue, a Lieutenant, who brought back the three murderers to Detroit where the Sr. de Tonty had them under guard until he received news from the Miamis, to whom he had taken care, to make known the amends, which it was proposed to make to them. He hopes that they will be satisfied with this action and will accept as a complete reparation the presents which the tribes of Detroit, and the French also, are preparing to make them, and that this disturbance may be suppressed by this means. I hope so, too; but I shall not be able to get any news about it until next spring.

As regards the Iroquois, if they move in this matter, I shall find means to settle it with them, as they will not fail to bring their complaints to me before taking any action.

This (Lt.) Sr. Etienne de Bragelongue, was primarily an engineering type (his dad was an engineer, but also the 3rd ranking general officer in the French cavalry corps). Etienne was the aide-major du fort at Fort Chambly (primarily engineering and logistics), the major "FOB" for the Colonial Marines, on the Richelieu near Montreal) - later a capitaine of one of the Marine companies stationed at Chambly. He married and had one daughter who died young. Before his marriage, he managed another daughter by one woman and possibly a son by another woman. The son died without any issue. The daughter went on to marry and carried on the Bragelongue (Bragelonne - Viscount of, by Dumas, is based on another French branch of this family) line in North America - she has to have thousands of descendants. :eek:

How the "Rule of Law" went in 1717 on the Miami.

Cheers

Mike

PS: Bob, I agree with you. FULL STOP

Polarbear1605
05-11-2011, 01:55 PM
and here on our own SWJ:
http://smallwarsjournal.com/blog/2011/05/the-lawfulness-of-killing-bin/

...could not have said it better myself...except the article should have closed with "Inter arma silent leges: in time of war the law is silent" (law = rule of law of course)
IMO we are seeing how our politicians can get into trouble at the strategic level by mixing ROL and LOW. Can anyone give me an example of how our militray generals get into trouble at the strategic level mixing the two? :o

jmm99
05-11-2011, 03:51 PM
a Marine named "Butch" ? :D

I read it and also thought it was a good article covering the basics that a rifleman should know (I'd skip the Latin "jus in bello" - right in war):


The law pertaining to the conduct of hostilities (jus in bello), which has developed since antiquity and includes certain provisions of the modern Geneva and Hague conventions, permits the sanctioned killing of an opponent in an armed conflict, regardless of whether he is armed at the moment he is engaged. So long as the opponent meets the minimum criteria to be regarded as a combatant (even an unlawful combatant), he may be engaged with deadly force, even if he is separated from his weapon. He may be killed while sleeping, eating, taking a shower, cleaning his weapon, meditating, or standing on his head. It is his status as an enemy combatant, not his activity at the moment of engagement, which is dispositive.

So, good job, Butch :)

--------------------------
As to the question (mostly outside of my ballpark):


Can anyone give me an example of how our military generals get into trouble at the strategic level mixing the two?

The Phoenix program (and SVN Pacification in general) opened itself up to criticism, as one factor, by treating VCI cadres as "civilians" (RoL) - unless they were themselves armed or accompanied by armed troops (LoW). Thus, if those VCI "civilians" were killed in the course of an operation, a "war crimes" charge was already halfway home. Of course, Phoenix (a mix of "Title 10" and "Title 50") was not a purely military program - so it is not a prime example in answer to your question.

Regards

Mike

jmm99
05-11-2011, 08:08 PM
er.., rather the mouse.

From HuffPost (http://www.huffingtonpost.com/2011/05/09/huffpost-hill---senate-re_n_859709.html):


SHODDY RAT REMOVAL IN DIRKSEN CAFETERIA: WHERE'S THE HOPE AND CHANGE?

Amanda Terkel was on the Hill today for, you know, reporting and stuff. While there, she witnessed just what has become of pest control in the NOBAMA administration. Amanda writes in: "There was a mouse in the Dirksen dining room today! We noticed it running around by our table and very quickly picked our handbags off the ground. One guy wasn't paying attention and the mouse nearly ran right over his feet, until everyone started to making yelping noises. I was about to take a picture of it (for Twitter) until a guy came over, stomped on it, killed it and then scooped it up and took it away. Everyone was so grossed out."

Capitol officials say the mouse was given a burial in a toilet in accordance with its religious custom, however there is no documentation of it. Also, there is a rumor that Glenn Greenwald is finalizing a scathing rebuke of the operation, maintaining that the mouse should have been captured.

And so it goes in Wonderland.

Cheers

Mike

Ray
05-12-2011, 04:48 PM
Mike,

While none (well, at least the majority of the world) would lament OBL being killed, but questions that are being raised in Pakistan and by co religionists in India, is that how far can the US writ (US President's authorisation) legally apply beyond its frontiers as per international law?

Pakistan harbours terrorists and of that there is no doubt. And Pakistan, as a rule, denies their existence. Therefore, maybe the manner in which the US sorted out OBL is the only answer.

Therefore, my query as to what is the legal position on this?

jmm99
05-12-2011, 07:49 PM
The legal positions (definitely plural) are described in Pakistan's Sovereignty and the Killing of Osama Bin Laden (http://www.asil.org/insights110505.cfm), by Ashley S. Deeks, referenced in my post #21 above.

My own analysis starts with a first proposition that India, Pstan, Astan and the US are all 1949 Geneva states; have not accepted 1977 AP I and AP II in toto; and accept the Hague regulations. My second proposition is that a 1949 Geneva nation may engage in an armed conflict with a non-state actor (a "Power" in the conflict, which has an option to accept and apply 1949 Geneva under Common Article 2 and generally will come under Common Article 3).

The third proposition is that the Hague regulations impose duties on a neutral state, Convention (V) (http://www.icrc.org/ihl.nsf/FULL/200?OpenDocument) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The Hague, 18 October 1907:


Art. 2. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.

Art. 3. Belligerents are likewise forbidden to:

(a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus forthe purpose of communicating with belligerent forces on land or sea

(b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages.

Art. 4. Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents.

Art. 5. A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory.

From that obligation of the neutral Power, follows the conclusion found in our FM 27-10, The Law of Land Warfare (http://www.loc.gov/rr/frd/Military_Law/pdf/law_warfare-1956.pdf):


520. Effect of Failure to Prevent Violation of Neutrality by Belligerent Troops

Should the neutral State be unable, or fail for any reason, to prevent violations of its neutrality by the troops of one belligerent entering or passing through its territory, the other belligerent may be justified in attacking the enemy forces on this territory.

Of course, simply because you have a hunting license does not mean you should kill everything in the forest.

The real question is not legality, but the likely response - diplomatic protest vice nuclear warhead.

Regards

Mike

LawVol
05-13-2011, 01:49 PM
Well said, Mike. Sometimes the legal part can be quite simple. Nearly ten years of inability or unwillingness on the part of Pakistan to deal with AQ led to this result.

jmm99
05-13-2011, 05:15 PM
Although directly aimed at "capture-detention" situations, this "e-book", The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking (http://www.brookings.edu/papers/2011/05_guantanamo_wittes.aspx), also "informs" our HVT topic, as well as "kill or capture" missions in general. Pdf download of entire book (http://www.brookings.edu/~/media/Files/rc/papers/2011/05_guantanamo_wittes/05_guantanamo_wittes.pdf).

Regards

Mike

Ray
05-13-2011, 07:04 PM
Mike.

Thanks.

It was helpful.

jmm99
05-14-2011, 01:13 AM
The question at the head of Bob Haddick's SWJ column today (http://smallwarsjournal.com/blog/2011/05/this-week-at-war-send-in-the-l/).

Damned straight ! Fire mission !:

http://council.smallwarsjournal.com/attachment.php?attachmentid=1100&d=1274888764

I'll fire the touchhole to blast forth the Lima Bravo Sierra - or, as pictured, the Lima Foxtrot Sierra. :D

Seriously, I question any suggestion that AG Holder and LA Koh should embark on a lengthy defense of the legal justification for the OBL mission and result. Both of them, before they moved from the private sector to the Obama administration, were dead set against primary reliance on using the Laws of War against "terrs". At some point, they will get wobbly knees.

Ken Anderson, Should John Brennan or Eric Holder Simply Have Quoted Harold Koh? (http://opiniojuris.org/2011/05/05/should-john-brennan-or-eric-holder-simply-have-quoted-harold-koh/), and UN Special Rapporteurs Demand Information to Justify OBL Killing, and What Holder Should Have Said and Koh Should Say (http://volokh.com/2011/05/06/un-special-rapporteurs-demand-information-to-justify-obl-killing-and-what-holder-should-have-said-and-koh-should-say/) (long version); and John Bellinger, Bin Laden Killing: the Legal Basis (http://www.cfr.org/terrorism/bin-laden-killing-legal-basis/p24866) (very short version) do a vastly better job because they are writing what they have written before.

Bob asks another question: "The SEALs did their job. Will the lawyers now do theirs?" The jobs are not remotely comparable. That being said, the small legal contingent at SWC is trying. Is our readership getting it ? I can't tell without feedback.

Regards

Mike

Ken White
05-14-2011, 02:37 AM
Seriously, I question any suggestion that AG Holder and LA Koh should embark on a lengthy defense of the legal justification for the OBL mission and result...At some point, they will get wobbly knees....very much agree with that...
Is our readership getting it ? I can't tell without feedback.... think I do -- and I very much appreciate the effort that goes into it.

jmm99
05-15-2011, 02:25 AM
I do want feedback. However, it would help if I spelled out the type of feedback that I think would be helpful to this topic - in general, as applied to future "kill or capture" missions.

Primo: The following are questions for non-lawyers. The number of lawyers around here are less than two handfuls of fingers.

Here's the primary question:


What standard(s) of "proof" should be used by an operator in a "kill or capture" mission ?

The standard of "proof" could be different for a "kill" vice a "capture".

First, some "working definitions".

As to the "Facts" ("Proof"):


Facts of the Event - all "evidence" (what a non-lawyer would take as material and credible) known to the operator before and during the event.

Facts of the Case - all evidence admitted in a subsequent proceeding to investigate or determine the event's legality.

In terms of the operator, the Facts of the Event should be the primary test since that is what he knew at the scene. The operator cannot be blamed for what he did not know (such as after-acquired evidence), or what is excluded by the Rules of Evidence. However, after-acquired exculpatory evidence should be considered - if afterwards, there is a "Case".

As to the Standards of Proof (as argued in Gitmo capture-detention cases - in my "more formal" Lima Bravo Sierra terms - OK, a concession to Stan :D):


1. Preponderence of the evidence - "advance the ball to the 50 yard line + a nose"

2. Clear and Convincing Evidence - "advance the ball to usually successful field goal range."

3. Beyond a Reasonable Doubt - "advance the ball to the red zone or first and goal."

The higher standards (2 & 3) have been argued by detainees in the Gitmo habeas cases; and have been rejected by the DC Circuit in a number of cases. The standard used by that court has been "1. Preponderence of the evidence" (i.e., it is more likely than not that the captive-detainee was a "bad guy").

Note that, if "preponderence" is not met, it is more likely than not that the target is NOT a "bad guy".

The DC Circuit has suggested that a different, less restrictive standard might apply in capture-detention cases. Perhaps, some sort of "reasonable suspicion" standard might be developed - say, advancing the ball to somewhere between the 20 and 50 yard lines. In short, capture, detain and investigate (to reach or not reach the "preponderence standard"). Consider that possibility in your analysis.

Again, the standard of proof need not be the same for "kill" and for "capture".

------------------------------
Here is why a Standard of Proof, consistent with reasonable military conduct employed by the operator, is important. It is so Neal Puckett or someone else can assert a Rule 916 Justification Defense in the operator's court-martial.

How to Keep Military Personnel from Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force (www.au.af.mil/au/awc/awcgate/law/roe_deadly_force.pdf), Lieutenant Colonel W. A. Stafford, United States Marine Corps, Assistant Staff Judge Advocate, United States Southern Command, Miami, Florida (NOVEMBER 2000 20 THE ARMY LAWYER • DA PAM 27-50-336)


In addition to the defenses of self-defense and defense of others, military criminal law allows defenses of “legal duty” and “obedience to orders” as justification for homicide and assault.[194] However, to meet the justification of “legal duty,” the duty must be “legal” and “imposed by statute, regulation, or order.”[195] Similarly, the defense of “obedience to orders” fails if the accused subjectively or objectively knew the orders were unlawful.[196] Consequently, if the Standing ROE or Rules of Deadly Force are not grounded in law, a serviceperson could be held liable under the Uniform Code of Military Justice for exceeding the law.[197]

194. MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 916(c)-(e) [hereinafter MCM]. Under military law, homicide and assault are justified in self-defense and defense of another based on a reasonable apprehension that death or grievous bodily harm is “about to be inflicted” wrongfully. See id. R.C.M. 916(e).

195. Id. R.C.M. 916(c), discussion. “A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful . . . . The duty may be imposed by statute, regulation, or order.” Id. (emphasis added).

196. Id. R.C.M. 916(d). “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” Id.

197. If a killing or assault under the ROE or Rules of Deadly Force is unlawful, and the defenses of self-defense, defense of others, legal duty, or obedience to orders do not apply, a military member could be found guilty of murder or assault. See UCMJ arts. 118(b), 128; MCM, supra note 194, R.C.M. 916(c)-(e). Under the UCMJ, the elements of murder with “[i]ntent to kill or inflict great bodily harm” are: “(a) That a certain named or described person is dead; (b) That the death resulted from the act or omission of the accused; (c) That the killing was unlawful; and (d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.” UCMJ art. 118(b)(2). The elements of “[a]ssault consummated by a battery” are “(a) That the accused did bodily harm to a certain person; and (b) That the bodily harm was done with unlawful force or violence.” Id. art. 128(b)(2). Murder with intent to kill or inflict great bodily harm carries “such punishment other than death as a court-martial may direct,” including life imprisonment, a dishonorable discharge (for enlisted) or dismissal (for officers), and forfeiture of all pay and allowances. Id. art. 118(e). Assault carries a maximum punishment of dishonorable discharge, total forfeitures, and ten years confinement (for “[a]ssault in which grievous bodily harm is intentionally inflicted . . . with a loaded firearm”). Id. art. 128(e).

I don't know "why" many of these guys who write about combat rules are USMC; but they are (Mark Martins, of course, being a very notable exception).

Opinions about a specific event can differ, PBS, Rules of Engagement (http://www.pbs.org/wgbh/pages/frontline/haditha/themes/haditha.html) (eight interviews with Bing West, Josh White, Gen. James Conway, Neal Puckett, Lt. Col. David Bolgiano, Tim McGirk, Lucian Read, Gary Solis) - Full interview with Gen. Conway (http://www.pbs.org/wgbh/pages/frontline/haditha/interviews/conway.html). Da Bear will have comments on this aspect of Kilo Coy.

My conclusion is that it is the job of the superior military officers (not their lawyers) to bring clarity to the rules. Lawyers can draft clear rules only when their superiors submit clear intent and guidance. To be blunt: A lawyer who is given free rein by his client (who then abdicates the scene) has a fool for a client.

-------------------------------------------------------------
Now, our short case study - where clarity in spelling out the ROEs was not a military virtue (in the Corps, no less :().

IRAQ: To shoot or not to shoot is the question (http://latimesblogs.latimes.com/babylonbeyond/2008/07/iraq.html), July 2, 2008 (LA Times):


In the end, the criminal case against Marine sniper Sgt. Johnny Winnick (pictured) may boil down to the simplest but yet most confounding question facing troops in Iraq: When can a Marine or soldier use deadly force against a suspected insurgent?

It's a question not even supposed experts can agree on. During the preliminary hearing completed Wednesday, a Marine lieutenant testified that he asked two majors — one a lawyer, the other a battalion executive officer — and got contradictory explanations.

Winnick is charged with manslaughter and assault for killing two Syrians and wounding two others.

Winnick says he opened fire because he believed the men were planting a roadside bomb, but no bomb was found. His superiors say he lacked the "positive identification" and "reasonable certainty'' needed to squeeze the trigger.

But what do those terms mean, particularly for snipers whose job is to kill the enemy from ambush at long range?

Winnick's attorney, Gary Myers, tried to get one of Winnick's fellow snipers to define "reasonable certainty." The young Marine said that, well, reasonable certainty means being reasonably certain.

"This is all words," said an exasperated Myers.

An officer testified that reasonable certainty means being "85% certain." Another said it means being "pretty damn sure."

A Pentagon expert [JMM: David Bolgiano] called by Myers disagreed with the "85% certain" rule. He thinks young troops are being given confusing and contradictory guidelines by their superiors. He's written about his concerns in a tome titled "Combat Self-Defense: How to Save America's Warriors From Risk-Adverse Commanders and Their Lawyers (http://www.amazon.com/Combat-Self-Defense-Warriors-Risk-Averse-Commanders/dp/0979182409)."

What Standard(s) of "Proof" (expressed in your terms; not necessarily in "legal terms") would you like to see in "kill or capture" missions. E.g., you might suggest one standard for "kill" and another for "capture".

This question (IMO) is probably best answered by those with combat experience of one kind or the other; although as Jedburgh long ago advised me - let the thread go where the thread goes.

Regards

Mike

jmm99
05-19-2011, 06:23 PM
Seems a bit odd that this was released as a blog post (http://opiniojuris.org/2011/05/19/the-lawfulness-of-the-us-operation-against-osama-bin-laden/), but in any event, DoS Legal Adviser Harold Hongju Koh affirmed his March 25, 2010 ASIL speech (http://www.state.gov/s/l/releases/remarks/139119.htm); and went on specifically (reparagraphed to point up Mr Koh's five points):


Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda.

In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force.

By enacting the AUMF, Congress expressly authorized the President to use military force “against … persons [such as bin Laden, whom the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 …in order to prevent any future acts of international terrorism against the United States by such … persons” (emphasis added).

Moreover, the manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way.

Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

This is really OK - and Mr Koh's knees did not wobble - in his exclusive reliance on the Laws of War.

Regards

Mike

jmm99
05-19-2011, 08:14 PM
as evidenced in The MMRMA Deadly Force Project (http://www.theppsc.org/Staff_Views/Aveni/V3.MMRMA_Deadly_Force_Project.pdf), MMRMA = Michigan Municipal Risk Management Authority, the insurer for many municipalities.

As Legal Adviser Koh's statement makes clear, OBL was targeted because he was part of a force declared hostile (see this post for SROE ref (http://council.smallwarsjournal.com/showpost.php?p=121330&postcount=619)). PID (that he was he) was sufficient to justify "shoot".

The Deadly Force Project involved a multi-scenario simulation geared to civilian law enforcement. I can't claim any sort of personal experience with those MI departments (Grand Rapids Police Department, Ingham County Sheriff’s Department, Kent County Sheriff’s Department, Livingston County Sheriff’s Department, Livonia Police Department and the Southfield Police Department):


Each participating officer/deputy was randomly subjected to a total of three scenarios, with one of each of three types of scenarios:

• Robbery-In-Progress
• Burglary Alarm-In-Progress
• Mugging-In-Progress

Of these three scenarios listed above, all officers were also randomly exposed to three different outcomes of each scenario [JMM: all started with subject's back to officer and hands at waist level of subject's front; then an about face to confront officer]:

• Suspect empty-hand surrender
• Suspect surrender with (non-weapon) object in-hand
• Suspect shoots at officer

To further determine whether outward appearance might influence a participant’s tendency to use deadly force, we also embedded random variations of suspect attire in the scenarios. In all scenario varieties, suspects were filmed in both “dress” and “punk” attire. “Dress” attire was usually a shirt and tie, often with a dress jacket or coat as an outer garment. “Punk” attire varied from individual to individual, based on what actors brought to the film session. Clothing ranged from blue jeans, hooded sweatshirts and leather jackets.

An important finding from the study was lag-time, as well as a definite speed up in the officer response time depending on how serious the situation (robbery > mugging > burglery) was perceived by the officer:


As one might anticipate, the lag-time between when the officer made his/her decision to fire and when the initial shot is fired has critical implications. If an officer finds him/herself behind the reactionary curve in a rapidly evolving situation, the lag-time associated with decision-making can allow the suspect to fire one or more shots at the officer before fire can be returned by the officer. Another critical lag-time consideration becomes manifest when an officer fires at a person who ultimately becomes known to be an unarmed person. As suspects turn toward the camera (officer) they may appear to be armed as the turn is initiated - the suspect’s hands may be clenched and/or positioned at or near waist level. However, since the officer’s decision to fire at the suspect predates the subject being shot .25 seconds or more, the officer can (and easily does) shoot the suspect as he/she is raising his/her hands into a “surrender” position. This was a frequent and somewhat unanticipated outcome in many of the shootings that involved “unarmed” suspects; suspects getting shot while “surrendering.” The officer typically has 1/3 of a second or less (from a critical juncture in each scenario) to decide whether or not to employ deadly force, and then to apply that force, before he/she risks being “shot.”

Those officers who managed to shoot armed suspects before the suspect was able to fire seemed to have elected to use deadly force before it could be clearly determined that the suspect did, in fact, have a handgun. This tendency to employ deadly force “preemptively” was at the core of our objective to quantify when such actions were objectively reasonable. As anticipated, most officers found themselves firing after the suspect fired his/her first shot at the officer.

Officer’s Reaction to When Suspect Fires - Frequency
Officers shoots after subject shoots - 61.44%
Officer shoots before subject shoots - 38.56%

As one might expect, officers seemed more vigilant and situationally postured when they were informed that they were responding to a forcible felony-in-progress. Participants typically had their handguns drawn sooner in the robbery scenarios and were more inclined to utilize the cover that was afforded to them. When handguns were drawn and used in conjunction with a verbal challenge in the robbery scenarios, participant muzzle dispositions were notably higher (i.e., more elevated toward the suspect). And yet, even this higher state of situational readiness seemed to offer little more than a statistical “dead-heat” to the suspect’s first shot fired.

The unarmed shoots became the centerpiece of the study's analysis:


Inter-Agency Shooting Variations

The 307 officers/deputies participating in this study shot a total of 117 unarmed suspects – a frequency of 38% (0.3811). However, there was a significant difference between one agency on the low end of the frequency scale and agencies on the higher end. It should also be noted that the agency with the lowest frequency of participants shooting unarmed suspects and the agency with the highest frequency of unarmed suspects shot were both largely classified as being “urban” agencies. (See table below)

AGENCY, PARTICIPANTS, UNARMED SUSPECTS SHOT, FREQUENCY
1 76 18 24%
2 46* 18 39%
3 51 20 40%
4 38* 16 42%
5 54* 24 44%
6 43 21 49%
*Indicates that individual participants shot more than one unarmed suspect

The question will undoubtedly arise; “What noted differences were there between the agency with the lowest frequency of shootings (of unarmed suspects) and those with the highest frequency?” The answer, simply put; “It was a difference in training.” (See “Training Implications”)

The aggregate 38% unarmed being shot, and the aggregate 38.6% officer shoots first, correlate.

The range from 49% unarmed shoots to 24% unarmed shoots can be superimposed on a rough legal standard - not addressed by the study as such. The 49% unarmed result just accords with "preponderence" (more likely than not, or 50 yards and a nose). The 24% unarmed result reaches into what I would call "clear and convincing evidence". However, that result was a definite outlier. Why ?:


As was previously noted (“Inter-Agency Shooting Variations”), the distinct inter-agency differences relevant to shooting unarmed suspects seem directly attributable to training. There were no substantive differences in agency policies pertinent to the use of deadly force.

The one agency that required its personnel to complete a “Use of Force Report” whenever unholstering their handguns had a 44% rate of frequency in engagement of unarmed suspects. Its participants did typically unholster their handguns more slowly than participants from other agencies, but that didn’t seem to influence their overall judgment in the research scenarios.

The agency with the lowest frequency of unarmed suspects shot (24%), judging from all informal participant debriefs, had the most rigorous scenario-based training regimen. Virtually every participant interviewed from that agency stated that he/she had had one or more force-on-force training sessions in the last 12 months. In itself, this might not seem evidence adequate to suggest that training was the most influential factor, but it is the only factor that clearly stood out from all others.

We were impressed by the overall professionalism exhibited by participants afforded to us by all agencies. Scenario-based training was evident to some degree in all participating agencies. However, in all but one agency, it seemed much more intermittent rather than routine.
All of this accords with e.g., Mark Martins' articles (from the 1990s to today) that ROEs must be taught in the context of tactical-based scenarios - and cannot be "legislated".

The policy implications of the study should be obvious - in the following, "immediate" roughly equates to a "clear and convincing" > "beyond a reasonable doubt" stuation, and "imminent" equates to a "preponderence" > "clear and convincing" situation:


As many aforementioned findings suggest, many police shootings are “gray-area” events that often reflect split-second differentials between in-policy and out-of-policy shootings. The almost universal embrace of the “imminent threat” standard, in our opinion, is warranted and court-defensible.

For clarification purposes, “immediate threat” scenarios are “must-shoot” incidents, and therefore generate the least amount of post-incident controversy. When an officer responds to an immediate threat, he/she is either reacting to someone lunging with an impact or edged weapon, looking down the barrel of a suspect’s gun, or dodging bullets that have already been fired.

We don’t require that officers wait until a threat has manifested to that level before he/she can react with deadly force. An insightful operational definition of what “imminent danger” is was expressed by the New Jersey Division of Criminal Justice in 2000;

Imminent Danger:

• Threatened actions or outcomes that may occur during an encounter

• Threatened harm does not have to be instantaneous

This concept affords officers a large degree of latitude in their interpretation of events – as does the Graham v. Connor “reasonable officer” standard.

Koh: "...bin Laden continued to pose an imminent threat.."

The MMRMA Deadly Force Project was the most comprehensive found by me after some InterWeb searching.

Regards

Mike

jmm99
06-06-2011, 05:49 PM
Direct actions (whether by drone or by men) are continuing - with a possible success being registered here, Mohammad Ilyas Kashmiri, commander-in-chief of the Kashmiri militant group Harakat-ul Jihad-i-Islami (http://www.washingtonpost.com/world/police-say-pakistani-troops-kill-26-militants-in-fresh-fighting-near-afghan-border/2011/06/04/AGxAdjIH_story.html) (purportedly on 3 Jun).

The Obama WH has been divided about drone strikes - and the degree to which Pakistan should be involved in the process, Administration Internal Divisions Over Drone Strikes in Pakistan? (http://volokh.com/2011/06/04/administration-internal-divisions-over-drone-strikes-in-pakistan/) (by Ken Anderson at Volokh):


According to the article, continuing the program as it stands has prevailed for now, with more review down the road. But the article includes some additional tidbits, including a remark in passing that although the Pakistani government puts the civilian casualties of drone strikes in the hundreds, the CIA puts it at around 30. The article also adds that the Pakistani government would like to have equal say in the agreed target list:


U.S. Ambassador to Pakistan Cameron Munter, backed by top military officers and other State Department officials, wants the strikes to be more judicious, and argues that Pakistan’s views need to be given greater weight if the fight against militancy is to succeed, said current and former U.S. officials.

Defenders of the current drone program take umbrage at the suggestion that the program isn’t judicious. “In this context, the phrase ‘more judicious’ is really code for ‘let’s appease Pakistani sensitivities,’ ” said a U.S. official. The CIA has already given Pakistani concerns greater weight in targeting decisions in recent months, the official added. Advocates of sustained strikes also argue that the current rift with the Pakistanis isn’t going to be fixed by scaling back the program.

Since the future direct actions will occur other than in Pakistan, larger and future issues hinge on Title 10 and Title 50 Interface (under domestic law) and the significance of International Law to those issues.

On the "interface", Washington Post’s David Ignatius writes, The blurring of CIA and military (http://www.washingtonpost.com/opinions/the-blurring-of-cia-and-military/2011/05/31/AGsLhkGH_print.html):


One consequence of the early “war on terror” years was that the lines between CIA and military activities got blurred. The Pentagon moved into clandestine areas that had traditionally been the province of the CIA. Special Forces began operating secretly abroad in ways that worried the CIA, the State Department and foreign governments.

The Obama administration is finishing an effort to redraw those lines more carefully, issuing a series of new executive orders (known as “EXORDS”) to guide the military’s intelligence activities, sometimes through what are known as “special access programs,” or SAPs.

The power of combining CIA and military resources was shown in the May 2 raid that killed Osama bin Laden. The firepower came from the Navy SEALs, a Special Forces unit that normally functions under the Title 10 war-fighting authority of the military. Because the SEALs were operating inside Pakistan, a country with which the United States isn’t at war, the CIA supervised the mission under Title 50, which allows the agency to conduct “deniable” activities overseas.

The system worked in the Abbottabad raid. But over the past 10 years, there have been instances when crossing the traditional lines created potential problems for the United States. It’s especially important to understand these boundaries now as Gen. David Petraeus prepares to take over as CIA director. If the rules aren’t clear, people at home and abroad may worry about a possible “militarization” of U.S. intelligence.

More in depth by Ken Anderson (6 Jun), Law and Order - Targeted killing is legitimate and defensible (http://www.weeklystandard.com/articles/law-and-order_571630.html) (emphasis added):


Much more important, however, but also much harder to convey, is the importance of engagement with international law. The time for saying with a shrug, of course it’s illegal or extralegal, is long gone. Needed, rather, is for the United States to articulate on a regular basis its views of why it thinks its counterterrorism programs are consistent with international law. State Department legal adviser Harold Koh, to his credit, has done so both in the case of targeted killing using drone warfare, in a widely remarked speech last year, and more recently in a short statement on the bin Laden killing to the international law blog Opinio Juris.
....
It is quite true that wide swaths of critics won’t be satisfied; that’s not the point. The international law community will never be satisfied, and whatever one gives them, if it’s done merely to appease them, they will take as weakness. International law critics will speak with utter confidence and great bluster. “International law” is better understood not so much as a unified field with definitive answers but as a set of more and less “plausible” interpretations, in a world of sovereign states in which there is no final adjudicator to say yes or no. It is fused with diplomacy, politics, and real-world consequences.

The United States should seek to convey that it has a considered, plausible view of the law, whether shared by the critics or not. That view will achieve public legitimacy in no small part because the U.S. government has the confidence to articulate it and defend it as such. This is an approach to the public articulation of international law begun by then-State Department legal adviser John Bellinger in the later years of the Bush administration, and while it requires being willing to weather a great deal of criticism and sometimes abuse, it is the right approach.

The bolded sentence seems to me to be a practical definition of International Law.

Regards

Mike

Fuchs
06-06-2011, 06:29 PM
There are final adjudicators that all have agreed on.

Some countries just broke their word about respect towards them and lost their honour this way.
The repercussions are sometimes more, sometimes less subtle.

jmm99
09-27-2011, 09:50 PM
Ken Anderson covers a number of sources in the on-going policy debate underlying US use of drones, at Opinio Juris, Tactically Precise, Strategically Incontinent ? (http://opiniojuris.org/2011/09/25/tactically-precise-strategically-incontinent/) (by Kenneth Anderson, 25 Sep 2011).

The principal sources cited are the following:

Wash. Post, The price of becoming addicted to drones (http://www.washingtonpost.com/opinions/the-price-of-becoming-addicted-to-drones/2011/09/21/gIQAovp4lK_story.html) (by David Ignatius, 21 Sep 2011).

Report of the Special Rapporteur (Philip Alston) on extrajudicial, summary or arbitrary executions - Addendum: Study on targeted killings (http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf) (28 May 2010).

Remarks of John O. Brennan (http://m.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an), at the Harvard Law School (16 Sep 2011) [John Brennan, WH counterterrorism adviser, argued that U.S. legal authority to use force against al-Qaeda wasn’t “restricted solely to ‘hot’ battlefields like Afghanistan” but could be expanded to other theaters “without doing a separate self-defense analysis each time.”]

Three Quick Comments on David Ignatius’ Critique of Drones in Today’s Washington Post (http://volokh.com/2011/09/22/three-quick-comments-on-david-ignatius-critique-of-drones-in-todays-washington-post/) (by Kenneth Anderson, 22 Sep 2011) - making it clear that we have experienced and are experiencing something of a "counterterrorism" vice "counterinsurgency" dichotomy:


Second, the primary theorists of blowback in the Afghanistan war are theorists of counterinsurgency, and the specific application of the blowback thesis is that even if the counterterrorism drone policy works on its own CT terms, it undermines the counterinsurgency war because it damages the ability to win over populations. The extent to which the campaign actually has those effects can be debated. That has to include that asking populations if they’re resentful is not a purely neutral measurement of social science; it tends to signal to them that they get advantages out of being resentful. An awful lot of blowback has to do with the expectations of the population. Telling the local population (as the US did, for example, early on in the Iraq war) that if our war has not made them happy, then it is our fault, is very much a mechanism for foolishly raising the bar of expectations. But David Kilcullen and Andrew Exum, in their writings, for example, are talking about counterinsurgency, and counterterrorism’s effects on that. The Obama administration’s whole effort, however, is to get out of counterinsurgency, and quite rightly is worried far less about blowback arising from a switch in strategy to transnational CI.

Ignatius keeps talking, in column after column, about our “addiction” to drones. Why, instead, doesn’t he talk (as the Obama administration implicitly does) about our “addiction” to counterinsurgency, and see drones as the “cure” for that? It’s not as if counterinsurgency warfare in Afghanistan doesn’t have plenty of downsides and its own forms of blowback and bad unanticipated consequences, as the Obama administration and, for that matter, most of the American people, see it. Downsides starting with no end in sight and no clear avenue to a victory that allows an exit. The Obama administration sees counterterrorism as a realistic and, to date, functioning strategy against our actual long term adversary, and an exit for our addiction to the cul-de-sac of counterinsurgency, and why isn’t it right about that?

Wash. Post - Editorial Board Opinion: It takes more than drones (http://www.washingtonpost.com/opinions/it-takes-more-than-drones/2011/09/23/gIQAYEDIuK_story.html) (24 Sep 2011), "CT" + "COIN":


In our view the legal situation is straightforward. It’s been clear for more than a decade that al-Qaeda is a transnational organization that seeks to wage war against the United States from multiple foreign bases; especially in areas where national sovereignty has broken down, a U.S. military response is justified. It would be helpful if Congress would clarify this by passing legislation that renews the authorization of military force and stipulates that it can be used against al-Shabab and other al-Qaeda branches.

The harder question is whether the administration’s increasing reliance on drones is weakening what should be a much broader strategy. While militants can and should be picked off by targeted strikes in Yemen and Somalia, neither country will cease to be a source of terrorism until it can be stabilized under a responsible government. The United States has been trying to encourage a political settlement in Yemen that would end months of near-anarchy, and has been helping to fund and train Somalia’s transitional government and security forces. But the efforts have been underfunded and underambitious.

Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a ‘Legal Geography of War’ (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1824783) (Kenneth Anderson, 27 Apr 2011):


Abstract:

This brief policy essay examines the evolution of the argument around the proposition that there is a “legal geography of war.” By that term is meant whether the law of war applies only within certain geographically defined areas. It does so in the context of the war on terror and counterterrorism, and specifically in the debates over targeted killing and armed drone warfare.

The essay is a non-technical policy essay that is part of an online volume on current national security issues published by the Hoover Institution Task Force on National Security and Law. The essay's purpose is not to offer a formal legal argument on the proposition of a “legal geography of war,” but instead to reflect more discursively on how the communities of international law, policy, diplomatic, laws of war, military, intelligence, nongovernmental organizations, and international advocacy have debated this since 9/11. It argues that the Bush administration’s assertion of a global war on terror and its claims of the legal incidents of war on a worldwide basis caused a backlash among its critics, toward geographical constraints on war as formal legal criteria. This was a shift away from the traditional legal standard that war takes place, and the law of war governs, where(ever) there is “conduct of hostilities.”

Drones and targeted killing, insofar as they are asserted within the law of war, particularly strain the legal framework. However, as the Obama administration has moved away from the global war on terror as a means to widen the application of the law of war beyond the conduct of hostilities, legal views appear to be converging once again on the traditional “conduct of hostilities” standard. The essay concludes with a brief, speculative post-script on the meaning of the deployment of armed drones to the Libyan conflict, and how that deployment seems peculiarly to have shifted the perceived acceptability of drone warfare in a way that was not quite so evident when the issue was not humanitarian war in Libya, but the US’s wars of national security in Afghanistan and Pakistan.

Efficiency in Bello and ad Bellum: Targeted Killing Through Drone Warfare (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1812124) (Kenneth Anderson, 23 Sep 2011):


Abstract:

A peculiar feature of the targeted killing using drone technology debate is that it appears to set up a tension between the two traditional categories of the law and ethics of war, jus in bello and jus ad bellum. The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone user’s forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum).

Regards

Mike

jmm99
10-02-2011, 04:57 AM
We had our 50th (Class of 1961) Hancock High School Reunion this weekend. Chowed down with (ret) 2 Navy O's and 1 SNCO (Mel came up from NC to see us - as he correctly said "the last time I saw you was at the Naval Reserve Center in 1961" - the NRC allowed us the Center for our graduation party; and thereby kept kiddy drunks off the roads). So, a good time with them and 50+ others.

Interestingly enough, the four of us had no discussion re: current military situations.

Now, in looking at the Awlaki mission, we do in fact have a lot of legal opinions, which range from close to the "normative" to vary adverse to the "normative". I'm going to take this on gradually - over the next week or so.

Here's a bold-face - "Killing Awlaki was illegal, immoral and dangerous" - CNN Link (http://globalpublicsquare.blogs.cnn.com/2011/10/01/killing-awlaki-was-illegal-immoral-and-dangerous/) - by one of my personal favs, Mary Ellen O'Connell (http://law.nd.edu/people/faculty-and-administration/teaching-and-research-faculty/mary-ellen-oconnell/), who is generally in my "opposition":

http://law.nd.edu/assets/4252/oconnell.jpg

Yes, she is an "Irish Colleen"; but:


She earned her B.A. in History, with highest honors, from Northwestern University in 1980. She was awarded a Marshall Scholarship for study in Britain. She received an MSc. in International Relations from the London School of Economics in 1981, and an LL.B., with first class honors, from Cambridge University in 1982. She earned her J.D. from Columbia University in 1985, where she was a Stone Scholar and book review editor for the Columbia Journal of Transnational Law. After graduation, she practiced with Covington & Burling in Washington, D.C. [JMM: a very good DC law firm; but not S & C.]

which allows this Mick:

http://council.smallwarsjournal.com/picture.php?albumid=23&pictureid=188

to slug it out virtually - as barristers do.

That being said, check out her articles at the site above; and do a Google for her many pdfs. Or, search SWC for her name vice jmm99 (I often cite to her as one of the "opposition").

Another personal fav - for Gitmo cases (http://www.andyworthington.co.uk/) and "War Crimes" (http://council.smallwarsjournal.com/showthread.php?t=4921&page=29) - is Andy Worthington (http://www.andyworthington.co.uk/about-me/):

http://www.andyworthington.co.uk/wp-content/uploads/Andyportrait2.jpg

He, like ME O'C, is pretty straight-up in his beliefs - even though generally opposite to my own. Neither of them have horns; nor, do I !

See also, from Antiwar.com as the source, to provide a "fair and balanced side of the coin" (WTF does that really mean ?):


CIA Assassinates Two US Citizens in Yemen (http://news.antiwar.com/2011/09/30/cia-assassinates-two-american-citizens-in-yemen/)

US Officials Work to Posthumously Promote Anwar Awlaki (http://news.antiwar.com/2011/09/30/us-officials-work-to-posthumously-promote-anwar-awlaki/)

Legality of Assassinating Americans Considered (http://news.antiwar.com/2011/09/30/legality-of-assassinating-americans-considered/)

Anwar Awlaki Never Actually a Member of al-Qaeda (http://news.antiwar.com/2011/09/30/anwar-awlaki-never-actually-a-member-of-al-qaeda/)

Secret Justice Dept. Memo Sanctioned Killing of Awlaki (http://news.antiwar.com/2011/09/30/secret-justice-dept-memo-sanctioned-awlaki-assassination/)

Now, you all have the side of the coin which (mostly) differs from my side.

Later....

Regards

Mike

Bill Moore
10-02-2011, 08:14 AM
Mike,

This is a good news story all around, first we have two bad actors off the street, and I agree with the analysis that Awlaki was numero uno threat to the homeland, and Samir Khan was not an innocent by stander. Second, we civil libertarians jumping up to challenge the legality of this action, which in their own way is protecting Americans as much as the mission that killed Awlaki.

I personally felt the argument fell short when they argued that Yemen wasn't a battlefied, so therefore the mission was illegal. Whereever we kill terrorists is a battlefield, it isn't confined to a specific geographical region. It seems ludricous to believe that if a terrorist is conducting operations againstthe U.S. outside of a designated battlespace we can't kill him. Were these same arguments made when President Clinton launched missiles into Sudan and Afghanitan in the late 90s in an attempt to kill UBL?

The fact that both Awlake and Khan were U.S. citizens obviously complicates matters, and I don't think this decision was made lightly. It is impossible to deny that Awlaki was promoting the killing of Americans, to include using weapons of mass effect (crashing a jet liner). The Government has an obligation to protect its people, and it would seem that a case could be made that if they failed to act and Awlaki was successful again (as he was with MAJ Hasan), the relatives of those killed should have the right the suit the government for not acting.

I keep hearing the term assassination thrown around, and I recall being taught that we couldn't do assassinations. Assassinations were defined for this purpose as the planned killing of a political figure (like Castro). Killing an individual terrorist wouldn't seem to fall under that category to me, it is just a targeted killing. If we killed the President of Yemen, then that would be an assassination.

Good kill even if it was/is somewhat messy legally. President Bush stated shortly after 9/11 this would be a different kind of war, yet I still don't think most people understand what he meant when he said that. It is a global war, because the hostile network is global. It isn't a war confined to GPF fightiing in Afghanistan.

slapout9
10-02-2011, 06:01 PM
I keep hearing the term assassination thrown around, and I recall being taught that we couldn't do assassinations. Assassinations were defined for this purpose as the planned killing of a political figure (like Castro). Killing an individual terrorist wouldn't seem to fall under that category to me, it is just a targeted killing. If we killed the President of Yemen, then that would be an assassination.


Exactly, it is legal to under exigent circumstance rules IMO.

jmm99
10-02-2011, 09:58 PM
go astray when they demand a law enforcement approach against these violent non-state actors. These VNSAs are waging unconventional warfare against the US. They sometimes do that directly (as in 9/11), but often through local "franchises" or "non-franchised insurgencies" (your enemy is my enemy, etc).

Their practice does differ from the unconventional warfare doctrine of "FM31-21" in that they do not (at present) have conventional forces which the irregular forces support and with which they seek a juncture. Thus, because these VNSAs are not a state, are not regular forces, and do not occupy defined geographic spaces, some folks (e.g., O'Connell and Worthington) have a very difficult time considering these VNSAs as being involved in an armed conflict.

In fact, they may see associated groups (such as the Taliban, which has some aspects of a "state", has somewhat organized forces and does occupy defined spaces) as the essential parties to an "armed conflict". The conflict to them is then limited geographically to territory contested by the associated group. I think that is focusing too much on the horse, and not on the jockey (AQ); but, in any event, law enforcement methodology is demanded with respect to the jockey (AQ).

Now, law enforcement is part of a larger system - the criminal justice system. That system includes as integral parts not only law enforcement officers, but also prosecutors and defenders - and courts (with or without juries) as the ultimate decision-makers of what is "legal" or "illegal". In the US at the Federal level, Article III is the constitutional basis.

If an "armed conflict" exists, the criminal justice system does not generally play a role. E.g., Articles I and II provide the basis for Executive and Congressional power over armed conflicts; and generally the Article III bodies have recognized their lack of power in that area.

Some have argued for sets of rules that would extend the law enforcement methodology beyond its normal scope - so as to allow targeted killing under limited circumstances. Personally I think that would be a disaster; and I would much prefer to see a clear line drawn between law enforcement ("Rule of Law") and armed conflict ("Laws of War").

Mike Hayden said it well a few weeks ago, in a debate I reported here, Resolved: It's Time to End the War on Terror (http://council.smallwarsjournal.com/showpost.php?p=125625&postcount=16) - from the transcript (http://intelligencesquaredus.org/wp-content/uploads/War-on-Terror-090711.pdf), p.11:


Michael Hayden:

Let me give you -- thank you. Let me give you a slightly different description of that event. A heavily armed agent of the United States government was in a room with an unarmed man who was under indictment in the United States judicial system and was offering no significant resistance to the heavily armed agent of the United States government, and that heavily armed agent of the United States government killed him.

If you do not think we are at war, there are some very troubling definitions that you might want to attach to that act. That's the kind of authority we have perfectly lawful -- and no way am I suggesting anyone acted inappropriately. We acted perfectly lawfully because we are a nation at war and generally recognized as such.

You don't want to take those tools off the table while there are terrorists out there.

20:03:01

If you let this tool go, you will be less safe. Okay. If you look at the scope of our constitutional system, the law enforcement approach is designed, if you look at the constitution, the Bill of Rights and the American statutory law, the law enforcement approach is designed to make the government weak because we don't want the government arbitrarily taking away your liberties.

On the other hand, if you look at those sections of the Constitution that deal with armed conflict, they're designed to make the government strong so that it can protect you. You don't want to take that tool off the table. And quite perversely, if you take that tool off the table, you may actually threaten your own civil liberties.

Bear with me. There's a tight connection here. If the options of a nation at war are taken away from your tool kit, you must then rely on the options offered by law enforcement.

20:03:59

If you recall the events in -- on Christmas day a year or two ago, Detroit, Umar Farouk Abdulmutallab, the "Underwear Bomber" -- and he was Mirandized after about 50 minutes of interrogation, and I think everyone recognized that was probably a mistake. We should have interrogated him further.

We had the attorney general talking to the American Congress about legislation that would make Miranda more malleable so that we could interrogate these kinds of people longer in our law enforcement approach.

I don't want to make Miranda more malleable. Miranda defends me. Defends you. Defends your rights. And we're forced to contort the law enforcement approach when we attempt to make it answer and deal with questions it was never designed to deal with. This is one of those questions. Don't take that other tool, "We are a nation of war [sic ! at war]" off the table.

So, I agree with Hayden.

How effective would a law enforcement approach be against our own unconventional warriors if they were waging unconventional warfare against another state ? Posit that our conventional forces cannot be involved (so there is a rough equivalence to AQ's situation).

More later - maybe tonite.

Regards

Mike

jmm99
10-03-2011, 03:52 AM
Bill:

I happen to agree with you on this one (surprise ;)):


from Bill Moore
I personally felt the argument fell short when they argued that Yemen wasn't a battlefied, so therefore the mission was illegal. Whereever we kill terrorists is a battlefield, it isn't confined to a specific geographical region. It seems ludricous to believe that if a terrorist is conducting operations against the U.S. outside of a designated battlespace we can't kill him.

Michael Lewis, Drones and the Boundaries of the Battlefield (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917461) (Sep 2011) (18 pages), reaches much the same conclusion:


Conclusion

The Air Missile Manual makes it clear that drones are legitimate weapons platforms whose use is effectively governed by current IHL applicable to aerial bombardment. Like other forms of aircraft they may be lawfully used to target enemy forces, whether specifically identifiable individuals or armed formations, if they comply with IHL’s requirements of proportionality, necessity and distinction.

Because drones are only able to operate effectively in permissive environments, the most significant legal challenges facing their development and employment have been based upon where they may be employed. Attempts to apply the strict geographical restrictions that govern the scope of IHL in internal non-international armed conflicts to all non-international armed conflicts, including transnational armed conflicts, threaten to significantly limit the usefulness of drones.

When IHL’s core principles are considered, it becomes clear that the application of strict geographical limitations on IHL’s scope in the context of transnational armed conflicts cannot be defended. The determination of whether the Tadic threshold for an armed conflict is met on the territory of a non-party to the conflict should have no bearing on whether IHL may be applied to the parties to the conflict. In other words, the fact that there is no local violence occurring in Yemen or Somalia should not be used to provide a sanctuary for non-state actors that are involved in an armed conflict with another state.

The answer for how the boundaries of the battlefield and the scope of IHL’s application can be properly determined is found in neutrality law. This is historically how geographical limitations have been imposed upon IHL’s scope in international armed conflicts. It was applied in the aftermath of the 9/11 attacks, with at least tacit international approval, to the situation involving the United States, al Qaeda and Afghanistan. Its application is checked by the consent of the sovereign states involved, making an escalating spiral of violence less, rather than more, likely. And perhaps most importantly, neutrality law’s application to transnational armed conflicts does not lead to the anomalous results that are produced when strict geographical limitations are applied to transnational armed conflicts in which IHL is read to favor its otherwise most disfavored groups.

The bottom line is that the "Laws of War" (IHL to the law profs) follow the participants, who do not fit into the neat little boxes set up for the regular forces of Westphalian states engaged in conventional warfare.

Some of the assertions made in the name of "IHL" are quite amazing. E.g., Lewis cites this (p.8):


Similarly, Mary Ellen O’Connell has claimed that the shooting down of Admiral Yamamoto’s plane over Bougainville by U.S. fighter aircraft during World War II would today be considered illegal because it occurred ―far from [the] battlefield.[40]

40. O‟Connell, The Choice of Law Against Terrorism, 4 Journal of Nat‟l Security Law & Policy 343, 361 (2010).

She actually did say something akin to that in the 2010 article cited by Lewis:


Dean Koh mentioned a case from World War II in which the U.S. set out to kill a named individual far from actual hostilities when it attacked the plane carrying Japanese General Yamamoto, a reputed planner of the Pearl Harbor attack.[93]

93. Koh, The Obama Administration and International Law, supra note 41.

There are several problems with this interpretation. First, Dean Koh did not refer to remote participation. Moreover, many persons killed and detained have had no connection with Afghanistan. Even respecting those who did, the Yamamoto case was not uncontroversial at the time;[94] today it would be in conflict with the basic treaties that form today‘s law on the use of force, namely the 1945 United Nations Charter and the 1949 Geneva Conventions. These treaties provide little or no right to use military force against individuals far from battlefields.

94. Diane Amann relates that at least one of the participants in that attack, U.S. Supreme Court Justice John Paul Stevens, today has doubts as to whether it was lawful. See Diane Marie Amann, John Paul Stevens, Human Rights Judge, 74 FORDHAM L. REV. 1569, 1582-83 (2006).

Not to degrade Justice Stevens' role as a Pearl Harbor traffic analyst (who saw the Yamamoto "shot down" message after the fact, see Bill Barnhart, John Paul Stevens and the U.S. Navy at War (http://www.scotusblog.com/2010/04/john-paul-stevens-and-the-u-s-navy-at-war/)); but why try to present him as "one of the participants in that attack."

Talk about indirect "stolen valor"; factually inaccurate argumentation as to WWII; and with respect to the 1945 United Nations Charter and the 1949 Geneva Conventions, an off the wall legal analysis....

And, a material misrepresentation (whether innocent or intentional ?) of Stevens' position. We have that as stated by Thomas Lee to Jeffrey Toobin, After Stevens (http://www.newyorker.com/reporting/2010/03/22/100322fa_fact_toobin?currentPage=all) (2010):


In April, 1943, a coded message came across Stevens’s desk—“one eagle and two sparrows, or something like that,” he said. Stevens knew the transmission meant that an operation based on intelligence from his station had been a success. American aviators had tracked and shot down the airplane of Admiral Isoroku Yamamoto, who was the architect of the Japanese attack on Pearl Harbor and the leader of Axis forces in Midway.

Stevens was a twenty-three-year-old lieutenant, and the mission, essentially a targeted assassination, troubled him. “Even at the time, it seemed to me kind of strange that you had a mission that was intended to kill a particular individual,” he told me. “And it was an individual who was a friend of some of the Navy officers.” (Before the war, Yamamoto had trained with the U.S. Navy and studied at Harvard.)

Ultimately, Stevens concluded that the operation, which was approved by President Roosevelt, was justified, but the moral complexity of such a killing, even in wartime, stayed with him. “It is a little different than your statistics about so many thousands of highway deaths—that doesn’t mean all that much,” he said. “But if somebody you know is killed, you have an entirely different reaction.” The morality of military action became a lifelong preoccupation.

The need to fact check every assertion by the "IHL Intelligensia" makes for a very time-consuming process - especially when they make those assertions with apparent complete certainty.

Regards

Mike

jmm99
10-03-2011, 04:13 AM
Rajib Karim's emails with Al-Awlaki (http://www.thenorthernecho.co.uk/news/8880903.Excerpts_from_Rajib_Karim_terror_plot_mess ages/?ref=rss) were disclosed in Karim's UK criminal case:


:: January 25, 2010 From al-Awlaki to Karim: ''... depending on what your role is and the amount of information you can get your hands on, you might be able to provide us with critical and urgent information and may be able to play a crucial role for the ummah...

''I was pleased when your brother conveyed from you salaams to myself and was excited by hearing your profession. I pray that Allah may grant us a breakthrough through you. As a starter, can you please answer these questions in as much elaboration as possible: can you please specify your role in the airline industry, how much access do you have to airports, what information do you have on the limitations and cracks in present airport security systems, what procedures would travellers from the newly listed countries have to go through, what procedures would a person on a watch list have to go through?''

:: January 29, 2010 From Karim to the ''prof'', alleged to be al-Awlaki: ''It has been three years that I have been living here away from the company of good brothers and spending a good part of my day working with the kuffar. I was also keeping a low profile by hiding my real religious viewpoints, trimming my beard and not getting too involved in the local Muslim community or any Islamic activities. But leading a life like that was really killing me inside, that's why I desperately wanted to make hijrah as I was not seeing any opportunities to do anything in this land...

''I have knowledge about the key people in BA starting from the top management and the key people in BA IT department. I also have knowledge about key IT hardware locations, which if targeted can bring huge disruption to flights and cause BA a major financial loss ... but this would be at the risk of exposing myself as I will have to do that with my own login ID...

''I personally know two brothers, one who works in baggage handling at Heathrow and another who works in airport security. Both are good practising brothers and sympathise towards the cause of the mujahideen and do not slander them. They are of the type who would help with money and moral support but I am not sure if they are at the stage to sacrifice with their lives.''

:: February 13, 2010 From al-Awlaki to Karim: ''Our highest priority is the US. Anything there, even if on a smaller scale compared to what we may do in the UK, would be our choice. So the question is: with the people you have, is it possible to get a package or a person with a package on board a flight heading to the US? If that is not possible, then what ideas do you have that could be set up for the uk?''

:: February 15, 2010 From Karim to his brother, Tehzeeb: ''If it's not a good idea to visit you guys, then I intend to visit BD or USA. If I visit USA, I can check out what their security process is like.''

From Karim to al-Awlaki: ''I have started working on the bros I mentioned on the last letter without mentioning you directly. Alhamdulillah the bros responded better than I expected...

''Like you say, I also agree that US is a better target than UK, but I do not know much about US. I can work with the bros to find out the possibilities of shipping a package to a US-bound plane.''

HT to Thomas Joscelyn, Awlaki's emails to terror plotter show operational role (http://www.longwarjournal.org/archives/2011/03/anwar_al_awlakis_ema.php) (LWJ, March 2, 2011), who provides more background and discussion.

Draw your own conclusions as to whether Al-Awlaki was simply a cleric exercising his First Amendment rights.

Regards

Mike

M-A Lagrange
10-03-2011, 06:04 AM
I personally felt the argument fell short when they argued that Yemen wasn't a battlefied, so therefore the mission was illegal. Whereever we kill terrorists is a battlefield, it isn't confined to a specific geographical region. It seems ludricous to believe that if a terrorist is conducting operations againstthe U.S. outside of a designated battlespace we can't kill him. Were these same arguments made when President Clinton launched missiles into Sudan and Afghanitan in the late 90s in an attempt to kill UBL?


Well, in case of Yemen, the situation is a little in the grey area (As for Somalia).
The thing is that actions taken in Northern Yemen are conducted in an environment that is not controlled by central government and where the Yemeni government is conducting military actions. (In Somalia, there is no legal government out of 3 blocks in Mogadishu...)

As the area is already a battlefield (or can be assimilated to) for the Yemeni government, it can be argued that as there is already a battlefield, a military action conducted by an ally in that area against a shared legitimate target is legitimate if not legal.

Where it becomes fuzzy is when you conduct such operations in a country where there are no battlefield at all. For example a drone attack on a drug lord in Mexico. (And yes, Slap, there are no battlefield in Mexico, under legal definition, even if there is a "war against drug")

An interesting article from 2008, published by ICRC summaries quite well the question: can just at bellum override just in bello
http://www.icrc.org/eng/assets/files/other/irrc-872-moussa.pdf

I found the reflection on the problematic of intervention against VNSA quite interesting and well presented:


no amount of legal argument will persuade a combatant to respect the rules when he himself has been deprived of their protection …This psychological impossibility is the consequence of a fundamental contradiction in terms of formal logic …It is impossible to demand that an adversary respect the laws and customs of war while at the same time declaring that every one of its acts will be treated as a war crime because of the mere fact that the act was carried out in the context of a war of aggression.
The conclusion is, as usual, very consensual:

Determining the existence of a ‘just’ or legal jus ad bellum cause is essentially a political and hence subjective exercise. Throughout its history, the UN Security Council has largely avoided making a determination of aggression, leaving the matter, essentially, to the discretionary determination of states. Allowing such a determination to colour, in any way, the application of jus in bello undermines the rule of law in an area of international law that requires strict restraining principles. The matter is even more controversial in the case of conflict between a state and non-state actors, in which both parties tend to subordinate international humanitarian law to jus ad bellum.

It is less targetted on the issue than Mike but I hope this also helps to understand where the legal reflection comes from, on the IHL side.:D
Personnaly, I tend to be against the "geographically unlimited battlefield".

jmm99
10-03-2011, 07:28 PM
Marc:


from MAL

As the area is already a battlefield (or can be assimilated to) for the Yemeni government, it can be argued that as there is already a battlefield, a military action conducted by an ally in that area against a shared legitimate target is legitimate if not legal.
....
Personnaly, I tend to be against the "geographically unlimited battlefield".

My BLUF: Just because Country A is already a "battlefield" (whether because an "armed conflict" exists between State A and State B, State A and Group A, Group A and Group B, or some or all of them), that fact does not by itself justify State X using armed force within Country A against Group X.

However, if State X is present in Country A as a co-belligerent; a military occupier; or perhaps a peace enforcer or a state/nation builder, justification may well exist for State X's use of armed force within Country A. Let's posit that none of those situations exist - which seems to me to be the case for the US vice both Yemen and Somalia.

Proceeding further than this requires at least temporarily bypassing ("assuming arguendo" as the law profs might say) the question of whether a State X can engage in an "armed conflict" with a Group X - except in the limited context of that conflict being solely internal to Country X (as the Commentary to 1949 Common Article 3 suggests).

If that treshhold issue is temporarily bypassed, then a host of Jus ad Bellum questions can be presented. In general, then one must ask and answer whether the rules (jus ad bellum) are the same for an "armed conflict" between State X and State Y vice between State X and Group XY (a Transnational Violent Non-State Actor, TVNSA, present in State X and elsewhere).

My BLUF: No; the rules (jus ad bellum) are quite different - although they are often mixed together in what becomes a fruit salad mess. State X can follow Group XY to the extent Group XY is engaged in transnational unconventional warfare against State X in various countries (say, State A) - subject to the traditional I Law rights of State A to assert its own sovereignty rights (from diplomatic protest to waging war against State X). I really can't see any Jus ad Bellum rights that could be asserted directly by Group XY or its members, unless it avails itself of the option under 1949 Common Article 2 to accept and to apply the 1949 GCs - certainly AQ has not done that.

OK, we now have State X in Country A (either in accord with or contrary to whatever Jus ad Bellum rules we've come up with or agreed to disagree about). Where to now ? The answer is not to continue haggling about the Jus ad Bellum, but to turn to Jus in Bello. Here is the distinction from the basic ICRC explanation, IHL and other legal regimes - jus ad bellum and jus in bello (http://www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-bellum/overview-jus-ad-bellum-jus-in-bello.htm) (29-10-2010) - see I do read their publications ;):


Overview
...
The clear distinction between jus in bello and jus ad bellum is comparatively recent. The terms did not become common in debates and writings about the law of war until a decade after World War II. The concepts they cover certainly did feature in legal debate before then, but without the clear distinction the adoption of the terms has brought about.

The purpose of international humanitarian law is to limit the suffering caused by war by protecting and assisting its victims as far as possible. The law therefore addresses the reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just.
...
In the case of international armed conflict, it is often hard to determine which State is guilty of violating the United Nations Charter. The application of humanitarian law does not involve the denunciation of guilty parties as that would be bound to arouse controversy and paralyse implementation of the law, since each adversary would claim to be a victim of aggression. Moreover, IHL is intended to protect war victims and their fundamental rights, no matter to which party they belong. That is why jus in bello must remain independent of jus ad bellum or jus contra bellum.

The ICRC's history on the two terms is a 1997 article, Robert Kolb, Origin of the twin terms jus ad bellum / jus in bello (http://www.icrc.org/eng/resources/documents/misc/57jnuu.htm) (31-10-1997, International Review of the Red Cross, No. 320), snips from start and finish:


The august solemnity of Latin confers on the terms jus ad bellum and jus in bello [1] the misleading appearance of being centuries old. In fact, these expressions were only coined at the time of the League of Nations and were rarely used in doctrine or practice until after the Second World War, in the late 1940s to be precise. This article seeks to chart their emergence.

1. Jus ad bellum refers to the conditions under which one may resort to war or to force in general; jus in bello governs the conduct of belligerents during a war, and in a broader sense comprises the rights and obligations of neutral parties as well.
...
Interestingly enough, neither term can be found in the texts produced by other major publicists during the interwar years, nor, according to our investigations, were they used in the courses on war and peace given at the The Hague Academy of International Law or in any other courses. The breakthrough occurred only after the Second World War, when Paul Guggenheim, another disciple of the School of Vienna, drew the terminological distinction in one of the first major international law treatises of the postwar era [60]. A number of monographs subsequently took up the terms [61], which soon gained widespread acceptance and were launched on their exceptionally successful career. In a thesis written under Guggenheim’s supervision and published in 1956, Kotzsch gave them pride of place, treating them in the manner to which we have grown accustomed and which we now take for granted. [62]

60. P. Guggenheim, Lehrbuch des Völkerrechts, Vol. II, Basel, 1949, p. 778.

61. See for example F. Grob, The relativity of war and peace, New Haven, 1949, pp. 161 and 183-185.

62. The concept of war in contemporary history and international law, Geneva, 1956, pp. 84 ff.

Obviously, I have no problem with drawing a line between Jus ad Bellum and Jus in Bello. So, on that bright line separation, the ICRC and I are on the same side.

This should bring us to discussion of Jasmine Moussa's 2008 article, Can jus ad bellum override jus in bello? Reaffirming the separation of the two bodies of law (http://www.icrc.org/eng/resources/documents/article/review/review-872-p963.htm). But, I've been trying to get the pdf (http://www.icrc.org/eng/assets/files/other/irrc-872-moussa.pdf) to view or download for the last two years without success (using different computers, Windows and Adobe versions) - I get 288 KB and it freezes - "file damaged, cannot be repaired").

Obviously, I agree with the title as stated by Ms Moussa. Now, as to her abstract:


The theoretical separation of "jus ad bellum" and "jus in bello" provides important protection during armed conflict. It guarantees that "jus in bello" will apply regardless of the cause of a conflict. However, this distinction has been challenged by the view that in some cases, a situation of self-defence may be so extreme, and the threat to the survival of the State so great, that violations of "jus in bello" may be warranted. The situation is compounded by the confusion of the principles of necessity and proportionality under "jus ad bellum" and "jus in bello" in both academic writing as well as the jurisprudence of international courts. The dangers of blurring the distinction will be elucidated by examining how "jus ad bellum" considerations have affected the application of "jus in bello" in armed conflicts between States and non-State actors.

I have no complaints; except to note that "self-defense" and "defense of others" pop up as valididating factors in "jus in bello" - independent of those same terms used in the "jus ad bellum" context.

As to her conclusion quoted by you:


Determining the existence of a ‘just’ or legal jus ad bellum cause is essentially a political and hence subjective exercise. Throughout its history, the UN Security Council has largely avoided making a determination of aggression, leaving the matter, essentially, to the discretionary determination of states. Allowing such a determination to colour, in any way, the application of jus in bello undermines the rule of law in an area of international law that requires strict restraining principles. The matter is even more controversial in the case of conflict between a state and non-state actors, in which both parties tend to subordinate international humanitarian law to jus ad bellum.

I also agree; but would again have to add that "jus in bello" (our ROEs being the essential end product) also involve political and military exercises - and present "gray areas" (there are always areas where discretion has to exercised).

I can't comment on your other snips from Moussa since I don't have the article.

I don't think the terms "geographically unlimited battlefield" or "geographically limited battlefield" add anything useful to the analysis of TVNSAs who wage unconventional warfare (via irregular forces) on a transnational basis. One must look at their strategy and follow the participants.

Regards

Mike

Levi
10-04-2011, 02:51 AM
Personnaly, I tend to be against the "geographically unlimited battlefield".

Unless this thread is over with, could I ask you why you are against that? I think perhaps "battlefield" is a poor choice of language. Maybe "geographically unlimited area of special operations" would be better. I don't want someone to be able to stick out their tongue at me from across the street. I also don't want the US to be involved in every tribal/religious/ethnic dispute across the globe. But that's not my decision. If we ARE going to stick out our chins, lets at least allow ourselves to throw a punch. If that makes any sense.

Sorry, I forgot the original question was "proof". If enough or even the "right" members of the intelligence community (or whoever has the job of discovering actionable intelligence? right term?) say that so and so is a terrorist or is in cahoots with terrorists, and have seized documents or tapes or vid or whatever, then thats "proof". I know that there are probably plenty of examples of intelligence failure or manipulation, I can think of a few in my lifetime. But I feel we either try to be as sure as possible, and then go target them, or we are never sure and consequently do nothing.

Bill Moore
10-04-2011, 05:11 AM
M-A Lagrange,

In much simplier terms since I'm not a lawyer, I am not arguing for battle space with no boundaries, but the boundaries are defined by where the is at. If a particular geographical area (state, tribal area) said they wanted to remain neutral and any combatants that entered their territory were now former combatants (they wouldn't be allowed to wage war physically, psychologically, financially, etc.) while in their territory, then it would be a safehave as long as they lived up to their end of the bargin. Something along the lines of Switzerland during WWII. However, if an person or group is waging war against us, it really doesn't matter what their locale is. There is no safehaven for active fighters period (or there shouldn't be).

We bombed Romania during WWII because they provided supplies to Germany, we bombed a number of targets in Japan and Germany long before they were battlefields, so where would you draw the line?

It sounds like you suggesting we fight a Clausewitzian view of war, where war is restricted to the warring militaries and victory is decided on a defined battlefield, but that approach doesn't work now (and I doubt it ever did).

Levi
10-04-2011, 03:38 PM
by their stubborn resistance have shown what the general arming of a nation and insurgent measures on a great scale can effect, in spite of weakness and porousness of individual parts


secondly, that the probability of final success does not in all cases diminish in the same measure as battles, capitals, and provinces are lost (which was formerly an incontrovertible principle with all diplomatists, and therefore made them always ready to enter at once into some bad temporary peace), but that a nation is often strongest in the heart of its country, if the enemy's offensive power has exhausted itself, and with what enormous force the defensive then springs over to the offensive.


Standing armies once resembled fleets, the land force the sea force in their relations to the remainder of the State, and from that the art of war on shore had in it something of naval tactics, which it has now quite lost.



I have always liked this guy. I always took the summation of what he was saying to mean "total war" as a war without mercy until it was won.


We must, therefore, decide to construe war as it is to be, and not from pure conception, but by allowing room for everything of a foreign nature which mixes up with it and fastens itself upon it—all the natural inertia and friction of its parts, the whole of the inconsistency, the vagueness and hesitation (or timidity) of the human mind.

So if THIS "war" means we have to target people who would not normally be considered combatants, because they are not on a large open space with a weapon pointed in some direction or other, thats what we do. Don't we have to?

jmm99
10-04-2011, 05:28 PM
from Levi
So if THIS "war" means we have to target people who would not normally be considered combatants, because they are not on a large open space with a weapon pointed in some direction or other, thats what we do. Don't we have to?

Targeting situations are each unique - a small change in the facts can change a "shoot" to a "no shoot" (and vice versa). E.g., from a "young CPT" (based on one of his experiences several years ago), Iraqi bad guys run into a compound - obvious options: infantry assault, arty fire mission, airstrike. But, women and children are on the roof (yeh, the bad guys probably sent them up there). Decision: back off and basically follow a "law enforcement approach".

Without specific facts, I can't answer your question: "Don't we have to?"

Regards

Mike

Levi
10-04-2011, 08:47 PM
It is difficult for me to avoid being vague, without a lot more knowledge. I consistently think I should avoid posting here, I am sure I have no "chair at the table", my qualifications being 4 years active duty Navy, first gulf war, with the closest I ever came to "combat" being ducking a steak thrown at me in anger at the Dubai seafarers club. Thank God for youthful reflexes, my T-shirt remained A1 free.

Anyway, to be more specific, in any instance such as what you refer to (human shields) there must either be an SOP, which could very well be "back off and go to a law enforcement approach" or it would be left up to someone's discretion to "shoot or not shoot." Not shooting results in the continued use of human shields. A law enforcement approach would make me wonder if the (I assume) combat troops are trained for that, and if it results in the desired result of dead or captured insurgents.

What I said (poorly) was that IMO US citizens and citizens of foreign nations who are actively involved in terrorism against the US or allies, or aiding and abetting terrorism, and the proof is there, should be considered valid targets, for police action if possible, and military action if necessary, wherever on the planet they may be. There can't be any "switzerland" or safe haven because they will just recruit and launch from there. As a citizen and a taxpayer, it's in my best interest to see a resolution to the "war on terror". I don't see one without someone dying. Better them than me.

Back in my lane.

Fuchs
10-04-2011, 09:23 PM
The U.S. signed and ratified the Charter of the United Nations which forbids going just anywhere and killing people because that's an aggression.

What's more; the U.S. signed and ratified the North Atlantic Treaty which expressly requires its members to follow the principles of the United Nations.


Veto right or not - the idea that the U.S. could legitimately kill people in foreign countries (instead of going the diplomatic route and asking UN to sanction that safe haven) is incompatible with too much to list here.

Seriously, it's a disrespectful and very arrogant idea. Don't be surprised if even formal allies turn sometime against you if you disrespect treaty obligations like this.

davidbfpo
10-04-2011, 09:30 PM
Levi,

Don't worry about posting on SWC, we all have opinions and information, IMHO only a few have "a chair at the table" on selected threads, like JMM here on this and a couple of other threads.

I have tried to keep up with this thread, but have some recurring doubts over the legality, legitimacy and effectiveness of killing high value targets (HVT). Whilst a foreign nation may not today pursue HVT in the USA, there are examples where other nations have seen targeting: Eichmann in Argentina and Litvinenko in the UK. Where will the USA stand if it happens within the USA?

In a separate thread on the killing of Anwar al-Awlaki, which touches upon the reaction, not the rules:http://council.smallwarsjournal.com/showthread.php?t=14261

Levi
10-04-2011, 10:13 PM
The U.S. signed and ratified the Charter of the United Nations which forbids going just anywhere and killing people because that's an aggression.

What's more; the U.S. signed and ratified the North Atlantic Treaty which expressly requires its members to follow the principles of the United Nations.


Veto right or not - the idea that the U.S. could legitimately kill people in foreign countries (instead of going the diplomatic route and asking UN to sanction that safe haven) is incompatible with too much to list here.

Seriously, it's a disrespectful and very arrogant idea. Don't be surprised if even formal allies turn sometime against you if you disrespect treaty obligations like this.

I honestly hadn't considered the UN charter or the North Atlantic Treaty. I do not know what they say. I will TRY to read them, I hope they are not too dry. I was only thinking from the perspective of, well, selfishness and self preservation, if not disrespect and arrogance. As a citizen, when a terrorist act takes place, it's against me. Most likely. But I have no say in any response, and no way to affect an outcome or create "a desired end state" that is beneficial for me, i.e. not getting killed at a football game, and being able to travel abroad without fear. I can vote. That changes very little, in my experience.

If a foreign government comes and kills someone IN MY BACKYARD, LITERALLY, then I hope they do it quietly, and I am not caught in the crossfire. Or my rabbits. If this HVT did something to kill and injure a bunch of people who just wanted to go on about their lives, and the foreign gov gets him here, the unit members can expect beer from me. My only question is, why was the US GOV so slow that someone else had to do the job? Governments are one thing, real life is another.

I do see the reality of what you are saying, Fuchs. I know we can't just go around killing willy-nilly. So what do we do? Interpol? Do they operate in yemen and northern pakistan?

I don't like to be arrogant or disrespectful. I just don't see letting a treaty with the UN get in the way of protecting American interests and lives.

Fuchs
10-04-2011, 10:40 PM
Well, other people in other countries have rights, too.

How would you react if Cuba did assassinate some exile Cubans in Florida with their marines for being terrorists?

Would you want the Russian air force to bomb a motel in Kansas because an exile Chechen leader sleeps there?

How about an accidental bombing of a wedding party in Arizona because the Mexicans suspected a drug crime lord / terrorist there?


You see, there's a thing called sovereignty, and claiming this for the own country while ignoring the sovereignty of other countries with violent actions on their home turf is disrespectful and arrogant.

jmm99
10-04-2011, 11:55 PM
I really did not understand what situation you were positing. From this,


from Levi
US citizens and citizens of foreign nations who are actively involved in terrorism against the US or allies, or aiding and abetting terrorism, and the proof is there, should be considered valid targets, for police action if possible, and military action if necessary, wherever on the planet they may be.

you were thinking of al-Awlaki situations - where there are US constraints and also US restraints (even if Mr. Brown Bear confidently asserts there are not).

The Iraqi case I mentioned involved the same basic idea (Positive Identification - PID) of person or persons defined as members of a hostile enemy force under US military law and ROEs. The women and children introduced a wildcard. The bad guys there decided it was a bad day to die, given the possibility of a revolving door under Iraq's criminal justice system. Under different circumstances, that "LEO approach" could have led to disaster for our troops.

Regards

Mike

jmm99
10-05-2011, 12:53 AM
I am well aware of what the US has signed and not signed; I am well aware of what the EU-NATO states have signed and not signed; and I am well aware of the ICRC and what it has recommended - and what of that has been accepted or rejected by various states.

I have also frankly stated (and linked to) the US legal academics who dispute the basic rules adopted by the Bush Administration and expanded in the targeted killing area by the Obama Administration - and where the Legistative and Judicial branches have endorsed those rules.

Mere citation of the UN Charter and North Atlantic Treaty are inadequate to shake my boots. I know and have frankly admitted the divide between the USG position and the dominant EU-NATO position - in this and in other jus ad bellum and jus in bello issues. That divide cannot be bridged without one side or the other substantially changing material beliefs.

I'm serious too. If what you call "even formal allies" truly believe what you apparently believe about the US, then they would have a moral and ethical duty to terminate the alliances - and, also legal obligations to do that under both the UN Charter and North Atlantic Treaty (if they interpret them as you do). If some of them elect to do that, I would not blink.

Whether you want to charge some or many USAians with War Crimes is up to you. If you believe that, you should say so. Put the meat on the table.

As to sovereignty, you allege:


You see, there's a thing called sovereignty, and claiming this for the own country while ignoring the sovereignty of other countries with violent actions on their home turf is disrespectful and arrogant.

and I know that's not directed at me - unless you've disregarded everything I've written here and elsewhere.

When State A relies on a neutrality law argument to justify an attack against an enemy group X within the bounds of State B, State A runs the risk that State B will respond with something other than silence, a diplomatic protest or a claim for money. That is the answer to your questions:


How would you react if Cuba did assassinate some exile Cubans in Florida with their marines for being terrorists?

Would you want the Russian air force to bomb a motel in Kansas because an exile Chechen leader sleeps there?

How about an accidental bombing of a wedding party in Arizona because the Mexicans suspected a drug crime lord / terrorist there?

If our Homeland Security would react as it should, we would kill the Cubans, Russians and Mexicans. The Chinese and Russians would do the same thing.

What would the EU-NATO states do in the same three situations - make the US the attacker and change the locations to UK, France and Germany ?

carl
10-05-2011, 06:26 AM
I have tried to keep up with this thread, but have some recurring doubts over the legality, legitimacy and effectiveness of killing high value targets (HVT). Whilst a foreign nation may not today pursue HVT in the USA, there are examples where other nations have seen targeting: Eichmann in Argentina and Litvinenko in the UK. Where will the USA stand if it happens within the USA?

In the bad old days before the IRA saw the light, weren't there some accusations that the SAS or related types did just that in the US or killed US citizens abroad?

Levi: Keep posting. We need new guys around here. I for one am bored with me.

M-A Lagrange
10-05-2011, 08:20 AM
First of all, Yemen is not as white as it looks like:

Yemen Signs US Military Cooperation Agreement as It Fights Iranian Backed TerroristsYemen's official news agency says the country has signed a military cooperation deal with the United States, as Yemen battles a growing Shi'ite rebellion in the north.

Saba news agency reports the military and security cooperation agreement was signed Tuesday in the capital, Sanaa, after two days of talks.

U.S. officials did not immediately confirm that report.
http://waronterrornews.typepad.com/home/2009/11/yemen-fights-iranian-backed-terrorists.html

But this was denied by US. This said, I know Yemenis soldiers who went to US for training, which does not proof anything except there is an “as usual” bilateral cooperation between US and Yemen government.

This in that particular case does not make legal the use of force in Yemen by the US. Eventually, if any agreement between US and Yemen exist, for military cooperation, this shows that there might be some bases (secret agreement or at least non publicly disclosed agreement) between Yemen and US for military cooperation which may eventually allow US To use force in Yemen territory.

Secondly, about neutrality: (for Bill and others, not for you Mike, as I know you know all of this even better than me)

Definition of neutrality: (US legal definition dictionary, http://definitions.uslegal.com/n/neutrality/)
Neutrality refers to the legal status of a state that adopts a stand of impartiality towards two other states that are at war with each other. An impartial state accords recognition of the state of belligerency between the two warring parties. Neutrality creates rights and duties that fall upon all concerned.
In a United Nations enforcement action, the rules of neutrality apply to impartial members of the United Nations except so far as they are excluded by the obligation of such members under the United Nations Charter.
Armed neutrality: (US legal definition dictionary, http://definitions.uslegal.com/a/armed-neutrality/)
Armed neutrality is a term used in international politics, which is the attitude of a state or group of states which makes no alliance with either side in a war. It is the condition of a neutral power, at war, which holds itself ready to resist by force any aggression of either belligerent. Such states assert that they will defend themselves against resulting incursions from all parties.

Then back to the topic:

The use of drone in irregular war, from my personal point of view, could be seen as an attempt by the US to establish a similar power dominance in the field of non conventional wars as the A bomb gave them in the field of conventional war.
There are a lot of similarities between the theories of power and impact of A Bomb in diplomacy developed by theoricians as Raymond Aron in the 60 and the rhetoric used to justify the use of drones based on the military/power advantage they give to the US. All based on the need of homeland security and right to self defense. (Fuch reaction is one of them. Even if I do agree at some point with him. Just as Mike “upset” response. ;))

My only objection to the unlimited/no boundaries battle field is that, as with A bomb, it forced violent actors to develop alternative ways of war. The equilibrium of terror established through A bomb pushed States and non state actors to develop irregular warfare and terrorism.
If drones can establish this kind of overwhelming power for a handful of nations (US being the leader), then NSVA will develop other ways of war or use of force.
In that perspective, drones forces us to consider Jus ad bellum and not only Jus in Bello. Otherwise, crimes of aggression will become the norm. (And I know that US did not sign Rome Treaty:D).

Levi
10-05-2011, 01:36 PM
we are adapting by using drones. I hear words like "changing face of war" and "non state violent actors" and see here and elsewhere alot of talk about how conventional war is a thing of the past because of our off-kilter (compared to the rest of the world) defense spending, so that every conflict will be by necessity on the part of the enemy, whoever they may be under the current administration, a non-conventional war. So we should push to re write treaties, and push to legalize drones and target interdiction wherever possible across the globe, bearing in mind that any non-signitory countries will probably harbor, willingly or not, "the enemy". I would hope the US is already well on its way to doing that.

bourbon
10-05-2011, 03:11 PM
In the bad old days before the IRA saw the light, weren't there some accusations that the SAS or related types did just that in the US or killed US citizens abroad?
Yes, accusations and conspiracy theories – which may or may not be true; but in the one incident that I am familiar with - the murder of John McIntyre (http://www.leagle.com/xmlResult.aspx?xmldoc=2003437254FSupp2d183_1420.xm l&docbase=CSLWAR2-1986-2006) in 1984 – it wasn't true. The theory which was popularized by the book Valhalla's Wake, was that MI6 killed McIntyre to protect a source they were running inside the IRA; but the McIntyre murder it turned out was tied to Whitey Bulger.

jmm99
10-05-2011, 05:06 PM
To MAL, a little public thanks for sending on the legal materials so that, at some point, we can continue our conversation. I think I need a French-African computer - what you got :)

Briefly, the 2009 VOA Yemen link (http://waronterrornews.typepad.com/home/2009/11/yemen-fights-iranian-backed-terrorists.htm):


Yemen Signs US Military Cooperation Agreement as It Fights Iranian Backed Terrorists

Yemen, US Sign Military Cooperation Deal
By VOA News 11 November 2009

Yemen's official news agency says the country has signed a military cooperation deal with the United States, as Yemen battles a growing Shi'ite rebellion in the north.

Saba news agency reports the military and security cooperation agreement was signed Tuesday in the capital, Sanaa, after two days of talks.

U.S. officials did not immediately confirm that report. ....

WTF: Is this a "non-confirmation confirmation" (which is how I took it) or a "non-denial denial" (which is how you took it) ? In the area of public communications, both the Bush and Obama Administrations were and are as hard to love as Johnson-McNamara and Nixon-Kissinger.

In any event, a Yemen-US alliance against a Shi'ite rebellion (whether Iranian supported or not) does not extend to the AQ in Yemen who are extremist Sunni. Of course, there may be any number of other Yemen-US "executive agreements" in play. Let's leave all of that on the shelf for this post (Marc: you and I do tend to get down into the weeds - the nature of our beast).

Now, what follows is an attempt by me to phrase the key issues in very basic terms (questions put in quote boxes solely for separation):


1. Can a group of Transnational Violent Non-State Actors (TVNSAs) have an "armed force" in terms of International Humanitarian Policy (note I did not use the term "Law"); or are groups of TVNSAs subject only to International Human Rights Policy ?

My BLUF: TVNSAs can have an "armed force" subject to International Humanitarian Policy (underlying "Law of Armed Conflict", "Laws of War", ROEs etc.). In addition, like Mike Hayden, the target of TVNSAs should also be able to avail itself of remedies less than "armed conflict" (law enforcement, etc.; those remedies are subject to International Human Rights Policy).

Another BLUF: If one believes the alternative (only International Human Rights Policy), then one need go no further. My BLUF is indeed "illegal, immoral and dangerous"; and, frankly, Hayden and I would be propagandists for war crimes (cf., Julius Streicher).


2. How do we define and distinguish the members of the "armed force" of a group of TVNSAs ?

My BLUF: We don't do it by applying the rules set by International Humanitarian Policy for defining and distinguishing the members of regular armed forces of a state engaged in conventional warfare. The best we can do is to analogize, taking into account the functional roles played by the particular person vice the same or similar roles played in conventional forces.

Other BLUFs: Even if one believes generally that a TVNSA group can have an armed force, defining and distinguishing the members of that force can often take us into discussions where reasonable persons can differ. What should "direct participation in hostilities" mean, as only one example. So, there are many other possible BLUFs - and gray areas.


3. What was Al-Awlaki ?

My BLUF: Awlaki was an officer in AQ, whose primary function was PsyOps + some Military Intelligence and Direct Actions Recruitment & Planning (as in the example from the emails). As such, he was as fair game as any of our members here who have been engaged in the same or similar functions as members of a conventional military force.

Naji, in his Management of Savagery (http://www.wcfia.harvard.edu/olin/images/Management%20of%20Savagery%20-%2005-23-2006.pdf) (pp.57-59), explains AQ "officer selection" and their role in "targeting":


[25]
Section Two

Who Leads, Who Manages, and Who Authorizes the Fundamental Administrative Decisions?

There is a dependable rule in Islamic activism which is, "Not every leader is a manager and not every manager is a leader".

If we were to abide by what we mentioned in the previous point, we should change (this phrase) into "Every leader is a manager but not every manager is a leader".

The manager or executive is any individual within the movement or the group — who has mastered the art of administration — who can be appointed to manage a financial or nutritional sector or the like without him knowing, to the extent possible, the secrets which would harm the work. And as for the leader, he must be the object of complete reliance within the movement, and entrusted with its actions and its secrets. The leaders no doubt know many of the secrets of the movement to the same extent. Some of the leaders issue fundamental and secondary administrative decisions, while others issue decisions that include Sharia dimensions. Therefore, in our plan we open the door of management wide to those who have mastered its art. As for the door of leadership, it is only open to those who are reliable, even though there is a security apparatus which keeps watch over the two doors, monitoring the professionalism of the actions of the leaders and the managers in order to prevent infiltration.

An important aspect of the higher administrative and political decisions:

In accordance with the preceding, an important point becomes apparent to us, which is:

What is the most important thing, from a Sharia and realistic standpoint, that should be abundantly found in leaders who issue higher administrative decisions which include the targeting of some classes of people and not others?

Even if the High Command, the field commanders directing the work, or those who are usually distinguished by experience and political shrewdness generally issue higher administrative and political decisions, one should pay particular attention to the administrative decisions concerning the targeting of certain classes of people and not others. Naturally, these fundamentally require setting a guideline and issuing a precise or secret sharia judgment which must be passed by those firmly-rooted in knowledge in the main jihad movement before it is issued, or, if it is impossible to refer to the ulama of the main jihad movement, a scholar firmly-rooted in knowledge must be convinced of it in accordance with the correct Sharia criterions.

Of course there are classes of people who the mujahid-salafi movements, by means of their firmly-rooted ulama, have deemed to be permissible and necessary targets. I believe that this is sufficient at our current stage and the decision (to target others) at this time should be left to the High Command and the political leadership, who can determine the benefit of targeting them now or delaying that. This is to be done through consultation with the mid-level, learned cadres, at the very least. However, our words and our warning here concern what will come from (later) stages and what will be found among classes of people in the future or in the coming stages. The decision to target them or refrain from that is not only left to the learned cadres, but also to those firmly-rooted in knowledge from the beginning, just as we said.

Naji says much more than this brief taste.

Another BLUF: If one believes that Awlaki was killed solely because of his political speech (and that he could not be defined and distinguished as a military officer), consistency with that belief seems to require assertion of war crimes charges - unless one grants a pass for gray areas.

NB: "Policy" (as used in International Humanitarian Policy and International Human Rights Policy above) is not a simple monolith - and, there are many possible "Policies".

Regards

Mike

slapout9
10-05-2011, 06:03 PM
Then back to the topic:

The use of drone in irregular war, from my personal point of view, could be seen as an attempt by the US to establish a similar power dominance in the field of non conventional wars as the A bomb gave them in the field of conventional war.
There are a lot of similarities between the theories of power and impact of A Bomb in diplomacy developed by theoricians as Raymond Aron in the 60 and the rhetoric used to justify the use of drones based on the military/power advantage they give to the US. All based on the need of homeland security and right to self defense. (Fuch reaction is one of them. Even if I do agree at some point with him. Just as Mike “upset” response. ;))

My only objection to the unlimited/no boundaries battle field is that, as with A bomb, it forced violent actors to develop alternative ways of war. The equilibrium of terror established through A bomb pushed States and non state actors to develop irregular warfare and terrorism.
If drones can establish this kind of overwhelming power for a handful of nations (US being the leader), then NSVA will develop other ways of war or use of force.
In that perspective, drones forces us to consider Jus ad bellum and not only Jus in Bello. Otherwise, crimes of aggression will become the norm. (And I know that US did not sign Rome Treaty:D).

Very good analysis IMO....sooner or later a cheap and effective counter-measure will be found. That is why I say Droning somebody is a Tactic at best (very effective but a tactic none the less) it is not a Strategy,

motorfirebox
10-05-2011, 06:18 PM
Very good analysis IMO....sooner or later a cheap and effective counter-measure will be found. That is why I say Droning somebody is a Tactic at best (very effective but a tactic none the less) it is not a Strategy,
We should hope very much that an effective countermeasure will be found, and soon. The problem with drone technology is that it is not like a-bomb technology--it doesn't take vast amounts of money and top-end university-trained minds to marshal. It takes a couple hundred bucks, literacy, and an Internet connection, tops, to develop. To produce, once developed, it takes motor parts and someone to assemble them.

On the plus side, also unlike a-bomb technology, it's not a one-shot game-ender. But it's really only a matter of time until our FOBs start taking hits from drones, and/or we see a droneborne attack here at home. I mean, somebody tell me--how effective would a drone equipped with some kind of spray and a bottle of anthrax be? Fly it over a football game or something?

slapout9
10-05-2011, 07:21 PM
On the plus side, also unlike a-bomb technology, it's not a one-shot game-ender. But it's really only a matter of time until our FOBs start taking hits from drones, and/or we see a droneborne attack here at home. I mean, somebody tell me--how effective would a drone equipped with some kind of spray and a bottle of anthrax be? Fly it over a football game or something?

Yep, and there are a lot of other things they could do to. Conventional military minds don't seem to be able to grasp this either:(

Fuchs
10-05-2011, 07:38 PM
Very good analysis IMO....sooner or later a cheap and effective counter-measure will be found. That is why I say Droning somebody is a Tactic at best (very effective but a tactic none the less) it is not a Strategy,

It's assassination basics for people with too much funds.
I fail to see the major difference between AQ blowing up Massoud and CIA blowing up some Awlaki.

Slight difference in tactic and equipment, as well as nature of costs, but in the end it's simply observation followed by assassination.

Levi
10-05-2011, 08:39 PM
I mean, somebody tell me--how effective would a drone equipped with some kind of spray and a bottle of anthrax be? Fly it over a football game or something?

Not very. Also not very easy to weaponize (as I understand it). I tend to think more along the lines of the OKC bombing as the next attack. Smaller, but more frequent attacks. Also much easier to make fertilizer bombs than mess with anthrax.

Fuchs:

I am curious as to what you believe the proper course of action for the US would be, on an individual case basis, and an overall strategy, whether that would be a complete withdrawal of all troops, globally or whatever. How does the US counter violence against its citizenry without killing anyone? Who decides who can be tried? The international courts?

carl
10-06-2011, 02:00 AM
But it's really only a matter of time until our FOBs start taking hits from drones, and/or we see a droneborne attack here at home.

I don't believe there is much to worry about. Drones are great big radio controlled airplanes and from what I read, we are very very good at commanding radio waves. They may make one, and they may launch it, but except for maybe the first time, they won't be able to control it.

What does worry me is that our powers that be seem to think we will be able to control our drones reliably if we ever face a sophisticated enemy.

motorfirebox
10-06-2011, 02:54 AM
Not very. Also not very easy to weaponize (as I understand it). I tend to think more along the lines of the OKC bombing as the next attack. Smaller, but more frequent attacks. Also much easier to make fertilizer bombs than mess with anthrax.
Well, fertilizer bombs are heavy, though. I was thinking of something more portable. If anthrax doesn't fit the bill, I'm sure there's something that can be whipped up. Hell--fill it with kool-aid. A failed, but well-publicized, terrorist attack can have a pretty big impact on society (cough airport scanners cough).


I don't believe there is much to worry about. Drones are great big radio controlled airplanes and from what I read, we are very very good at commanding radio waves. They may make one, and they may launch it, but except for maybe the first time, they won't be able to control it.
You can't really control radio waves. You can jam them, and with the right equipment and preparation you can triangulate them. But it's not particularly hard to set up encryption--including frequency hopping--that will be hard enough to defeat that someone can fly a drone to wherever they want to before they're discovered and cut off and/or located. And it's also pretty hard to differentiate the signal sending data to a drone from all the other radio waves bouncing around.

Basically, if somebody spots a drone, and the equipment is set up, the cops can jam a significant portion of the radio spectrum. You wouldn't want to do that all the time, though, because our society kinda uses a lot of radio technology to communicate with itself. And even jamming isn't foolproof. You have to know what band the drone signal is using. Hell, maybe they're using an infrared signal, and your radio jammer will be useless.

It will be a lot easier out in places like Afghanistan, because signal density is so much lower. But, say, Houston? Good luck.

Plus, I can't imagine it'd be too hard to simply preprogram a flight path. No signal to jam.

carl
10-06-2011, 03:45 AM
I know just enough about electronic warfare to know that when you get out there on the leading edge, its' like magic, like Merlin and Harry Potter are both on your side casting spells. And I know that we are on the leading edge.

Those drones are radio controlled and the radio signal gets in through an antenna. That is an open pathway that must exist. This is where Merlin and Harry come in. You may very well be right and if the they make drones, we won't be able to stop them, but I got faith in our Merlins and Harrys.

Wouldn't an infrared signal be line of sight, short range line of sight? I imagine you could just shoot the controller then. No need for Merlin and Harry.

You could make a modern version of the Kettering Bug I suppose. But why go through all the trouble making it when a big mortar is available and easier to use?

MFB: I just read things again and I think I am talking past you. My comment is made with military ops in mind. Domestic use is what you are stressing and I can see your points. You wouldn't have build one special, just buy a plane and set it up for radio control. We've been doing that since WWII.

Bill Moore
10-06-2011, 06:48 AM
Posted by Fuchs,


The U.S. signed and ratified the Charter of the United Nations which forbids going just anywhere and killing people because that's an aggression.

What's more; the U.S. signed and ratified the North Atlantic Treaty which expressly requires its members to follow the principles of the United Nations.


Veto right or not - the idea that the U.S. could legitimately kill people in foreign countries (instead of going the diplomatic route and asking UN to sanction that safe haven) is incompatible with too much to list here.

Seriously, it's a disrespectful and very arrogant idea. Don't be surprised if even formal allies turn sometime against you if you disrespect treaty obligations like this.

Really? Our allies are going to turn against us because we killed a terrorist? I suspect most of our allies will be cheering this action, while some of their left leaning constituents will of course chant their normal anti-U.S. rhetoric. You have to wonder if the left leaning Europeans have lost all perspective on reality, if they don't believe in the right of self defense.


Would you want the Russian air force to bomb a motel in Kansas because an exile Chechen leader sleeps there?

This road isn't even running parallel to reality in alternate universe. How the heck can you compare a jet bombing a "hotel" in Kanas to kill a Chechen leader to surgically killing three terrorists who are actively targeting the U.S.? As others have pointed out, we have had a cooperative relationship with Yemen for a few years as we do with many other nations to fight a "common" enemy. As for other options, I somehow doubt the Yemenis had the ability to call the local police to quickly run out and arrest him before he disappeared again.

There is no doubt what the reaction would be if one of Awlaki's larger inspired terrorist attacks against the U.S. was successful and the American people found out the Government failed to protect them when they had the option to do so. I suspect you would have opposed the missile strikes in Sudan and Afghanistan to kill UBL after the East African Embassy bombings? Neither country were designated war zones at the time. Actually in some regards I would support you on this one, it was disproportinate and it was executed because at that time we were too risk adverse to take a more decisive and surgical option.

Getting to your point, the Cubans have killed American Cubans that were targeting Cuba. Under Clinton they shot down a plane that American Cubans were dropping propaganda from, and their have been other events over the years where other nations have killed people in the U.S..; however, this really doesn't matter, it is apples and rocks, Yemen didn't oppose this. his isn't a conventional war, the rules you are hanging your hat on do not blindly apply. A nation always reserves the right for self defense. This attack was an act of self defense.

The other argument I hear is that Awlaki didn't take up arms against the U.S., so he wasn't a lawful target. O.K., I can see the merit in that argument; however, then wouldn't the same standard have to be applied against Usama Bin Laden? He didn't take up arms against the U.S., he just directed the attacks that killed thousands.

I don't think anyone made this decision lightly, and it definitely wasn't made without a substantial legal review.

Bill Moore
10-06-2011, 07:50 AM
Enemies adapt over time in a number of ways if they're not rapidly and decisively defeated, so there is no doubt in my mind they will employ UAVs in the future. There is already a wide and growing market for UAVs that any individual can purchase and with a little creativity hand some field expedient weapon off of it. They don't have to overly capable to conduct strikes on dumb targets. The psychological impact of a UAV rigged with a small IED (even if it wasn't successful) would be much more significant than its physical impact.

I don't think UAVs are unconventional weapons, they're simply weapons that can applied conventionally or unconventionally (much like a rifle or mortar). The atom bomb was originally considered an unconventional weapon, it had little to do with our original concept of conventional war. Our constant attempts to put war in a particular bin usually doesn't work to well. Most conflicts are hybrid, another term we wouldn't need if we accepted that all wars were hybrid to varying degrees. However, based on our insistance that we define the character of war so we can apply the appropriate answer in doctrine solution, hybrid war is a useful term to shatter the myopic approach to war.

Some links of interest:

http://www.strategypage.com/qnd/india/articles/20050919.aspx

http://www.armscontrol.ru/uav/mirsad1.htm

Like any technology it can be used for a wide range of purposes. Cars and trucks serve as transportation assets that are critical to our economy and life style, but they can also be adapted as a means to deliver a large IED to a target.

http://www.uav-applications.org/

I remember years ago we were worried about terrorists using the internet, and now as predicted it is an everyday event. Terrorists will eventually employ UAVs to support/enable their operations, and most likely they'll be crude attacks, but crude attacks can still have the desired psychological impact.

jmm99
10-06-2011, 02:15 PM
can still have the desired psychological impact ..."

As in using hijacked airliners as cruise missiles because you don't have cruise missiles.

What was the clear war crime (jus in bello) in using the hijacked airliner to strike the Pentagon ? Can you spell Barbara Olson (http://en.wikipedia.org/wiki/Barbara_Olson) ?

Regards

Mike

motorfirebox
10-06-2011, 10:41 PM
What concerns me about al-Awlaki's death isn't the result, it's the process. I'm not convinced by what little evidence that has been presented against al-Awlaki being a legitimate target. The world is better off without him in it. What bothers me, rather, is that Obama was able to say "this guy needs killing", and it happened--just about that simple. I'm concerned by that concentration of power, and I'm concerned by the lack of oversight. That we know this happened at all is, basically, a favor on the part of the administration--they didn't have to tell anyone it happened, or that it was going to happen.

At least, that's my understanding. I'd be much relieved if someone showed me where I'm wrong.

carl, yeah, I'm mainly focused on domestic issues. Militarily... having been, if not Harry Potter, then maybe Ron Weasley, there's a lot a military force can do to protect itself, but there are also some sharp limits that an enemy could exploit. Ultimately, I think the hardest part for us is going to be detecting and dealing with the drones themselves. If the enemy controls the drone by remote, we can detect him, but if the drone doesn't send any signal back (which has drawbacks, obviously--it means they'd be flying blind, or guided by direct spotting), I think it could be difficult to locate before it has time to strike. On the other hand, I don't have a good idea of what kind of munitions could be carried by a low-tech drone; I suspect that the final result of AQ/Taliban trying to use drone tactics against our military would be, at best, a somewhat more precise form of mortar fire.

Oh, regarding our competence--our military is very competent, in signals as in other disciplines, but it does have to be said that sometimes we fall a bit short of the mark! (http://online.wsj.com/article/SB126102247889095011.html)

jmm99
10-07-2011, 02:11 AM
on this:


from mfb
At least, that's my understanding. I'd be much relieved if someone showed me where I'm wrong.

You're scarcely alone in your sentiments; but you'll have to work your own way through (1) your inferences as to what the facts are (realizing that many facts are and probably will remain classified); and (2) which policy (and law, which is determined by policy) should be applied.

I've seen the substance of these two statements dozens of times since Fri. AM:


(1) "I'm not convinced by what little evidence that has been presented against al-Awlaki being a legitimate target." and (2) "The world is better off without him in it."

How can one say it's better that Awlaki is dead, if that someone can't find enough evidence for him being a legal target ?

I'd suggest that if Awlaki were not a "legitimate target" (a doubt I don't share), the world is far from being better off without him in it. One who believes that Awlaki was not a "legitimate target" had best join Mary Ellen O'Connell in concluding that his killing was "illegal, immoral and dangerous". And, in that view, it might be a "war crime" - does one allow "gray areas" or not ?

Your point about "process":


What concerns me about al-Awlaki's death isn't the result, it's the process. ... What bothers me, rather, is that Obama was able to say "this guy needs killing", and it happened--just about that simple.

also is something you will have to work through. On this issue, you have a lot of company among the high flying political and legal pundits of the Beltway.

I've avoided this "process" coverage because it really takes one down into the legal weeds. Briefly, Ackerman and Greenwald (who are good at political polemics and button pushing) headlined "Awlaki Killed Without Due Process". That caused a number of liberal, moderate and conservative commentators, as well as the Obama Administration, to kneejerk react and assert there has been "due process".

The "due process" stuff starts here, On Due Process and Targeting Citizens (http://www.lawfareblog.com/2011/10/on-due-process-and-targeting-citizens/) (Sat. 1 Oct), extending into today, The Kill or Capture List (http://www.lawfareblog.com/2011/10/the-kill-or-capture-list/), with a bunch of posts in between.

I'm not going to give a legal lecture on "due process". We have "procedural due process" - the process required in our criminal and civil justice system, as well as in administrative and legislative proceedings. We also have "substantive due process", first notably applied by Justice Taney in the Dred Scott case to hold the Missouri Compromise unconstitutional under the 5th Amendment Due Process Clause because the statute prohibited slave owners from transporting slaves north of the dividing line. "Substantive due process" has nothing to do with procedures or legal processes; and it has been abused by liberals, moderates and conservatives since Taney.

Now, we may be getting a third kind of "due process" (based on secret panels, secret rules and secret determinations) - that sort of "process" being totally unknown under the "Laws of War", "Law of Armed Conflict" and International Humanitarian Law" governing killing the enemy.

Under those "war" rules, "due process" does not exist in the killing process. The essential issue is whether the target has been positively identified (PID), more likely than not, as a member of a defined hostile armed force. That determination without appeal rights might be made by a 19-year old PFC.

My crystal ball suggests that we are about to see an endless string of punditry over the presence or absence of "due process". My crystal ball also suggests that USAians will probably come out about 2/3 approve the killing, 1/6 disapprove and 1/6 undecided; and that the punditry will not make a whale of a lot of difference to the mainstream voter in 2012.

So, mfb, good fortune in navigating the weeds should you decide to do so.

Regards

Mike

motorfirebox
10-07-2011, 05:54 AM
I stated that poorly. I think al-Awlaki was a legitimate target. I've seen evidence presented that he was not, but I don't find that evidence convincing.

Thanks for the blog link. Regarding the weeds, this sums up my concerns pretty succinctly:

All that said, it is worth noting that no such regime today exists, so President Obama faced the problem of Anwar Al-Aulaqi with no extant framework for the sort of thing Spencer is suggesting. There is no forum to which to take the evidence, no forum in which to present it, no forum in which that evidence can be considered against any known legal standard; indeed, there isn’t any known legal standard. The one to which Spencer is objecting is one I made up.

M-A Lagrange
10-07-2011, 11:32 AM
Well, I believe we are here in front of several discussions:
1) The combatant definition. A recurrent question in the military operations against VNSA. For that, I would definitively call to look at the GC definition and the modern interpretation of a combatant by the ICRC. The need to wear a uniform is not a necessity. What is the key point is the existence of a chain of command and the active participation, in planning or conducting, military operations.

2) Targeted assassinations. There is a threat about this particular subject with a high level contribution from Mike on the legal boundaries in US for targeted assassination. Personally I do not have any opinion on that particular case. But what worries me is the increase of use of targeted assassination as war end. In the Great Lakes, under US inspiration, Ugandanda, Rwanda, Burundi and DRC have agreed to increase their use of targeted assassination against armed opponents. This is not a god news for Africa and goes against the principle of force as a tool of law enforcement. This just gives good justification for crazy states to do what ever they want (If the US can do it, so can we).

3) The problematic of engaging drones in a foreign territory and outside battle field. This is deeply liked to Jus ad Bellum.


Jus Ad Bellum Law & Legal Definition: http://definitions.uslegal.com/j/jus-ad-bellum/
Jus ad bellum is a Latin phrase that means right to wage war. This indicates a criterion that is consulted before engaging in war. This phrase concerns whether a war is conducted justly or if whether the entering into war is justifiable. An international agreement limiting the justifiable reasons for a country to declare war against another is concerned with jus ad bellum. The principles central to jus ad bellum are right authority, right intention, reasonable hope, proportionality, and last resort.
(In basic english: the right to go at war)

In opposition/complement to the Jus in Bello

Jus in Bello Law & Legal Definition
Jus in bello is a Latin term which means “the law in waging war.” It is an aspect of the international law of war which addresses the practices forbidden to belligerents during a war. Jus in bello defines standards by which a country can conduct war and the actions during the war should be just and fair. It is a group of principles intended as guidelines for the just prosecution of war. Jus in bello includes two principles of discrimination and proportionality. Discrimination defines legitimate targets and proportionality defines how much force could be used.
(how you make/conduct war)

Two concept that were developed in accordance to Jus ad Rem, or droit des gens or Right of the people and are the core base of IHL as established by Grotius and then formalized through the Geneva Law (Geneva Conventions). Geneva Law being different from IHL as IHL includes also The Hague Law (Law of war) and disarmament and non proliferation conventions.

Jus Ad Rem Law & Legal Definition
Jus ad rem is a Latin term of the civil law, meaning "a right to a thing." It is a personal right to possession of property that usually arises from a contractual obligation (as a lease). Jus ad rem is a mere imperfect or inchoate right.
It is a right exercisable by one person over a particular article of property in virtue of a contract or obligation incurred by another person in respect to it and which is enforceable only against or through such other person. The right a man has in relation to a thing; it is not the right in the thing itself, but only against the person who has contracted to deliver it. Jus ad rem is descriptive of a right without possession. On the other hand jus in re is descriptive of a right accompanied by possession. It is thus distinguished from jus in re which is a complete and absolute dominion over a thing available against all persons.


But different from the Jus Gentium:

Jus Gentium Law & Legal Definition
Jus Gentium is the law of nations; international law; universal institution. It is a Roman concept. Jus Gentium can be defined as a system of legal discipline or legal order, consisting of certain legal doctrines and precepts that serve to govern and manage relationship between nations. The Romans used the term in a very wide sense. The law of nations governing the conflict between the laws of different nations is known as jus gentium privatum, or private international law. The law of nations which regulates those matters which nations have with each other is known as jus gentium publicum, or public international law.
Jus Gentium, is the base of the actual custom and practices regulating international relations between States.

I believe a short reminder of all those definitions and concept will ease the debates here.
To say it in latin (:cool:) we are discussing here some how the impact of drones on Jus Gentium in accordance (or not) to USA jus ad bellum and other States Jus contra Bellum (the right to defend them selves).
But all of this does impact individuals Jus ad Rem, wether they are combattants or not, friends or foes. :D

jmm99
10-07-2011, 05:09 PM
whacking the weeds (http://en.wikipedia.org/wiki/String_trimmer) :D

Generally, Marc and I are within the same policy (and legal) framework with respect to the "juices". That doesn't mean we agree; but we can have a conversation.

The term "jus" is best translated as "right" - a "law" may not be "right". E.g., Zhivago says, in chiding the minor Party functionary who relies on a Party edict, "That gives you the Power, not the Right."

The various "juices" (all JMM views) are in quote boxes solely for separation purposes.


Jus Gentium - This Latin phrase has been stretched into "international law"; but its origins lie in the Roman gens - first "clan"; and later into "a people, tribe, nation". We can blame the lawyer Cicero for coining the term gens humana ("human race").

My BLUF: What this stretching tends to loose sight of is that the "jus" must consist of a common framework with reciprocity - everyone in the "gens" accepts and applies the same rules and understands them in substantially the same way.


Jus ad Rem & Jus in Rem - A "right to a thing" and a "right in a thing" - in common law property, we have "title-ownership" vs "possession".

My BLUF: In the present context, Jus ad Rem = state sovereignty over territory; Jus in Rem = actual occupation over territory. The distinction between the two has implications in 1949 Common Article 2 analysis, and in Neutrality Law (which has aspects of both Jus ad Bellum and Jus in Bello).


Jus ad Bellum and Jus in Bello - A "right to [go to] war" and a "right in bello". One finds some very variant theories in those two zoos.

My BLUF: The "right to go to war" (why you went to "war"; engaged in an "armed conflict") must be kept separate from the "right in war" (how you conducts the "armed conflict" once you are in it). That is also the ICRC position. E.g., One may have a perfect right to go to war, but conducts the war (warfare) in such a way as to commit war crime after war crime. OTOH, one may have no right to go to war, but conduct warfare in total compliance with all "jus in bello" rules.

The ICRC and I do differ on what the specific rules and language "are, should be" in both Jus ad Bellum and Jus in Bello. However, we are still within a common framework, but not all accept the separation between Jus ad Bellum and Jus in Bello.

Some contend, for example, that, if one's Jus ad Bellum is tainted (not "right"), that someone becomes an outlaw; and all of its acts committed in the armed conflict are tainted (not "right") - so, "wanted, dead or alive". Others contend that if one's Jus ad Bellum is "crystal" (say, a clear self-defense case, esp. in an existential case), all of its acts in warfare (no matter how extreme) are justified by the initial case for self-defense.

BTW: If a "war, armed conflict" does not exist re: the particular situation, then neither party can rely on "war, armed conflict" rules. That is the primary assertion that Mary Ellen O'Connell relies on in many of the current situations for her findings of "illegal, immoral and dangerous".

So much for the "juices" - I'm working up the page to the first two paragraphs of MAL's post.

-------------------------------
"1. The combatant definition" There is a common framework in this:


A recurrent question in the military operations against VNSA. For that, I would definitively call to look at the GC definition and the modern interpretation of a combatant by the ICRC. The need to wear a uniform is not a necessity. What is the key point is the existence of a chain of command and the active participation, in planning or conducting, military operations.

but the devil is in the details. Obviously, the issue with Awlaki and anyone who is "part" of AQ (let's leave the Taliban on the shelf for the present) is whether that person can be defined as a "legitimate target" or not - and what "gray area" (if any) one allows for discretion.

The "modern interpretation of a combatant by the ICRC" (if, MAL, you speak of the ICRC docs re: "direct participation") is not something I can agree with. I also do not agree with the 1977 AP I and AP II as written; and many interpretations (by the ICRC and others) of "Customary International Humanitarian Law". In essence, they say trust us in our presentations - I don't trust and I must verify thrice.

-----------------------------
"2. Targeted assassinations."

MAL: Your use of the word "assassinations" may or may not be intentional.

Do you mean assassiner - "to assassinate, to murder" - which contains within itself the conclusion that the act is criminal.

OR

Are you satisfied with the neutral tuer - "to kill - as in "tue' par les Iroquois" (an epitaph placed after the death dates of more than a few Colonial Marines, killed in an irregular warfare where both sides killed with a kind of feral deadliness).

The term "assassiner" was reserved for George Washington in the admission he signed when he surrendered Fort Necessity to Louis Coulon - see link, Jacob Blosser, Getting Away with Murder: The Tragic Story of George Washington at Jumonville Glen (http://www.jmu.edu/mwa/winners/winners2001.htm) (2001) (pdf (http://www.jmu.edu/mwa/docs/2001/blosser.pdf)). And the controversy over targeted killings has continued since.

Please clarify if your beliefs (I won't argue with them) require assassiner, or if tuer is presently satisfactory.

As to the practical, experiential reasons - the real problems confronting you in trying to clean up knucklehead-occupied cesspools:


But what worries me is the increase of use of targeted assassination as war end. In the Great Lakes, under US inspiration [JMM: texts ?], Uganda, Rwanda, Burundi and DRC have agreed [JMM: texts ?] to increase their use of targeted assassination against armed opponents. This is not a god news for Africa and goes against the principle of force as a tool of law enforcement. This just gives good justification for crazy states to do what ever they want (If the US can do it, so can we).

I'd suggest that whatever the precise facts, present rules (if enforced) would help in ending the problems. I won't even attempt to defend Mr Obama's-Ms Clinton's African policies. I do believe that further tightening the screws on the militaries of many Westphalian states (who generally do behave) will not do any good at making the knuckleheads of the world behave.

Regards

Mike

Bill Moore
10-09-2011, 02:54 AM
http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case-to-kill-a-citizen.html?pagewanted=1&_r=1&hp

Hopefully this paragraph will lessen concerns that we're pursuing a new doctrine, or that this decision was made lightly. I'm both a supporter of this kill and the Bill of Rights, but the system allows carefully considered deviations if "absolutely" necessary to protect our nation, and in this case one successful inspired attack (MAJ Hansan) and several failed, most notably the Detroit Christmas bomber compelled the Government to take action.


The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

They countered the lame assassination argument, this was not an assassination.


Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

Did we illegally kill an American?


A federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.

Finally the argument submitted by Fuchs implying we were conducting rogue operations in another nation.


The memorandum examined whether it was relevant that Mr. Awlaki was in Yemen, far from Afghanistan. It concluded that Mr. Awlaki’s geographical distance from the so-called hot battlefield did not preclude him from the armed conflict; given his presumed circumstances, the United States still had a right to use force to defend itself against him.

As to whether it would violate Yemen’s sovereignty to fire a missile at someone on Yemeni soil, Yemen’s president secretly granted the United States that permission, as secret diplomatic cables obtained by WikiLeaks have revealed.

More at the site.

jmm99
10-09-2011, 04:35 AM
Thank you for the link to Charlie Savage's NYT article, Secret U.S. Memo Made Legal Case to Kill a Citizen (http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case-to-kill-a-citizen.html?_r=2&pagewanted=1&hp), which has been brewing for a few days as the folks at Lawfare, Anti-war and elsewhere (e.g., Greenwald and Ackerman) have been pounding the administration to actually release the memo (even if redacted to preserve classified data).

The memo was "principally drafted by David Barron (http://www.law.harvard.edu/faculty/directory/index.html?id=4) and Martin Lederman (http://www.law.georgetown.edu/faculty/facinfo/tab_faculty.cfm?Status=Faculty&ID=2134)" - both are known quantities who generally have not advocated broad, "inherent" Executive Branch powers: e.g., Barron, David & Martin S. Lederman. "The Commander in Chief at the Lowest Ebb: Framing the Problem, Doctrine, and Original Understanding," 121 Harvard Law Review 689 (2008) - part 1 (http://www.harvardlawreview.org/issues/121/january08/Article_1127.php) and part 2 (http://www.harvardlawreview.org/issues/121/february08/Article_1307.php):


(snip from pt 1)
This Article begins by explaining why the debate about the “lowest ebb” is now emerging as the primary constitutional war powers question, and by addressing the methodological missteps that have typically infected this debate. It then explores recent attempts to identify the preclusive prerogatives of the Commander in Chief and explains why the tests often deployed to cabin the scope of the presumed preclusive power are flawed. Finally, it reviews the relevant Supreme Court precedent, along with the constitutional text, the historical context in which the text was written, and the original understandings, and sets the stage for the post-Founding historical review contained in the next Article.


(snip from pt 2)
This historical review shows that the view embraced by most contemporary war powers scholars — namely, that our constitutional tradition has long established that the Commander in Chief enjoys some substantive powers that are preclusive of congressional control with respect to the command of forces and the conduct of campaigns — is unwarranted. In fact, Congress has been an active participant in setting the terms of battle and the conduct and composition of the armed forces and militia more generally, while the Executive (at least until recently) generally has accepted such legislative constraints as legitimate. Although history is not dispositive of the constitutional question, legislators and executive branch actors should not abandon two hundred years of historical practice too hastily, and should resist the new and troubling claim that the Executive is entitled to unfettered discretion in the conduct of war.

Suffice to say that this pair is not of the right.

The process set up in the now "unsecret memo" is very close to that of Gary Solis (again no rightist) with respect to Targeted Killing (http://en.wikipedia.org/wiki/Targeted_killing#Definition):


Georgetown Law Professor Gary Solis, in his 2010 book entitled The Law of Armed Conflict: International Humanitarian Law in War, defines it as:


the intentional killing of a specific civilian or unlawful combatant who cannot reasonably be apprehended, who is taking a direct part in hostilities, the targeting done at the direction of the state, in the context of an international or non-international armed conflict.[1]

Solis stresses that it is not considered a targeted killing unless:

1. An armed conflict is in progress (as otherwise it would be considered a homicide, and a domestic crime; it is the armed conflict that affords a combatant the right to kill an enemy);

2. The target must be a specific individual, who is targeted because of his activities in relation to the armed conflict (under the Third Geneva Convention the civilian loses his immunity from being targeted when he takes part in such activities, which would include for example delivering ammunition, or gathering military intelligence in enemy territory);

3. Though not in any law [JMM bolding], human rights concerns suggest that the person should be one who cannot be easily arrested;

4. A senior official must authorize the targeted killing, taking into consideration the difficult issue of collateral damage. A targeted killing could be authorized in the U.S. by the President (or his designee, or two-star generals and above in the combat zone), and in Israel by the Prime Minister (or his designee); and

5. The targeted individual is directly participating in hostilities, whether in a combat function or otherwise. The applicable ICRC interpretive guidance indicates that civilians who lead terrorist organizations, for example, by virtue of their position never literally pick up arms themselves, but by the same token they never lay them down, and are therefore legitimate targeted killing targets.[1] In accord, the Judge Advocate General of the Canadian Armed Forces, Kenneth Watkin says: "It is not just the fighters with weapons in their hands who pose a threat".[1] In such case, under Protocol 1 to the Geneva Conventions, even civilians, women, and children are not immune from attack.[1]

[1] Gary D. Solis (2010). The Law of Armed Conflict: International Humanitarian Law in War. Cambridge University Press. pp. 538–47. ISBN 0521870887.

I agree that Points 1 and 2 are required.

Points 3, 4 & 5 are not required by any US law or treaty. That is admitted by Solis as to Point 3; Point 4 is based on no law or treaty known to me; and Point 5 is based on the ICRC "direct participation" interpretation not accepted by the US.

The added factors are for political effect - and to "accommodate" allies (EU-NATO) who support more restrictive rules than the US has hitherto followed.

My preference would be to follow the normal military targeting rules (essentially Points 1 and 2) with the added requirement that, if a US citizen is involved, he has expatriated himself. Examples: hundreds of US citizens in WWII, having returned to Germany before or during the war, were drafted or enlisted in a branch of that state's armed forces. That bunch included some Waffen SS EMs, NCOs and Os - and a number of expatriates were killed without legal fuss, muss or hand-wringing.

The cry for "due process" (as we know it in our constitutional law) is inconsistent with the normal lack of that kind of "due process" in the decision to kill an enemy combatant.

So, to accommodate domestic politics and doubting allies, we now have a summary of the "secret memo" - and also know that there was a "secret panel" which made "secret findings" and "secret determinations" - outside of the normal military targeting process. And, of course, these operations are a hybrid of Title 50 and Title 10, which further muddies the IHL waters.

I think this is just the opening round of a media barrage - which probably will end up being ignored by a majority of 2012 voters.

Lots of interesting weeds to muck about - and all of this "secret" stuff is either the invention of, or (where prior in part) acceptance of and expansion by, a liberal administration and the liberal lawyers advising it.

Regards

Mike

Bill Moore
10-09-2011, 07:13 AM
Mike,

Thanks for the post. When addressing your comments on "secret" stuff, one really needs to first ask if this is really "secret" stuff if it is being discussed in the media? A covert operation means that the sponsor has plausible denial, if the sponsor talks about the operation in the media it is no longer covert, and you have to wonder if title 50 rules apply? The article I quoted from above also suggested that it is not a war crime if a CIA operative pulled the trigger because they're not in the military. That of course can lead to a slippery slope, and it gets to your comment about points one and two being required.


1. An armed conflict is in progress (as otherwise it would be considered a homicide, and a domestic crime; it is the armed conflict that affords a combatant the right to kill an enemy);

2. The target must be a specific individual, who is targeted because of his activities in relation to the armed conflict (under the Third Geneva Convention the civilian loses his immunity from being targeted when he takes part in such activities, which would include for example delivering ammunition, or gathering military intelligence in enemy territory);

What constitutes an armed conflict? We are openly in an armed conflict with Al Qaeda and their associates, but let's look at the problem set from a wider perspective.

If another terrorist organization (not even associated with extreme Islam) decided to target the U.S. (let's say a new left wing terrorist organization in Latin America) and we had good intelligence on them, and had low confidence the ability and will of the host nation they were residing in to arrest them,then could the CIA conduct a covert operation to conduct a preemptive strike? We're not in an armed conflict, but we have reliable intelligence they will conduct a terrorist attack against U.S. interests.

Would the military be able to do this under title 10?

I don't get overly excited about population centric COIN and nation building as it relates to CT. They generally have little effect, and we have the authorities to them, so we can keep experimenting until the cows come home, but the real issues that relate to defending the nation is the authority to take action to prevent an attack. What keeps me up at nights is the emergence of super empowered non-state actors who decide to target the U.S. and without a declared state of armed conflict we have our hands tied when it comes to pre-empting these threats.

Some will take this as advocating for a broad license to kill which isn't the case, but rather I'm advocating for a better legal process that allows us to defend our nation from these threats that is acceptable to our law makers and our people (morally acceptable) because it is in line with our constitution and values.

We both know if we allow an attack to happen and we knew it was coming, but we failed to act due to legal ambiguity then that will not be acceptable to anyone. It is easy to criticize the targeting of Awlaki because most Americans (and Europeans) didn't understand his significance. Of course, if he dispatched another Christmas bomber that was successful the people would rightfully hold the government responsible for taking preventative measures. It is possible now a days to have virtual blood on your hands.

jmm99
10-09-2011, 06:13 PM
Bill Moore: I'll get to your concerns about preventing a TVNSA's attack in another post.

Here are some responses to the leaking of the now "non-secret memo":

At Lawfare (http://www.lawfareblog.com/):

Philip Bobbitt on Leaks and Legal Rationales (http://www.lawfareblog.com/2011/10/philip-bobbitt-on-leaks-and-legal-rationales/) (Bobbitt at Amazon (http://www.amazon.com/Terror-Consent-Wars-Twenty-First-Century/dp/B0046LURJI/ref=sr_1_1?ie=UTF8&qid=1318169864&sr=8-1)):


I don’t know if this is a “middle way” but I would have preferred that the Administration take the position that an internal legal memo is privileged, and that maintaining that privilege is pretty important to the Executive Branch; that for that reason it was irresponsible of whoever leaked it to Savage. At the same time, there is an important constitutional point at issue here, and the president has a responsibility to tell us how he resolved this matter and what his constitutional reasons were. These might or might not track the memo, and ought in any case to be given in a different form, and released to the public.

This is related to what used to so irritate me about the Bush signing statements. I didn’t have a problem with the substance — that a president can refuse to enforce statutory language he deems unconstitutional — but rather with the fact that the statements were little more than boiler-plate repetitions of that general point. The president’s not explaining his position is rather like an appellate court saying to the parties to a dispute, “You win. You lose. Let’s have lunch.”

This point about presidential “doctrinal” argument is a crucial one, as we enter into that sphere of constitutional matters that are largely non-justiciable.

and, Ben Wittes on Ken Anderson (http://www.lawfareblog.com/2011/10/kenneth-anderson-on-charlie-savages-story-and-secrecy/) and Ben's own comments on "advocacy by leakage":


I doubt very much that this is an entirely unauthorized rogue “leak” – in the sense that there are secrets here that the government very much wants to keep but that some individual decided on his or her own to disclose. I suspect, rather, that this is a situation in which the government – or some senior official therein – has decided to disclose the memo without disclosing it. This approach is fully consistent with the larger strategy of the administration on the subject of drones and targeting killing – to talk about the subject a great deal by way of claiming credit for big counterterrorism successes but to do so without talking about it at all officially. And it’s wrong. Either this program is a secret, in which case the government should stop talk to Charlie about it, or it’s not a secret, in which case it should figure out what is releasable in the memo and release it. There is no middle ground here – no legitimate middle ground, anyway – in which the right approach is coyness.

The NYT (Brisbane) on Ken Anderson (http://www.nytimes.com/2011/10/09/opinion/sunday/the-secrets-of-government-killing.html?_r=1):


Kenneth Anderson, an American University law professor who told me he is a “centrist conservative” on national security issues, said he supports the use of drone technology for counterterrorism but cannot abide how the administration is handling the program publicly.

“One area in which I have been relentless in criticism of the Obama administration has been their refusal to say anything about it, and at the same time essentially conducting the foreign policy of the U.S. by leaked journalism,” he said. “I just don’t think that is acceptable.”

And, from Opinio Juris, by Ken Anderson (on the road again), Secret DOJ Memo on Awlaki Targeting, and NYT Public Editor on Policy-by-Leaks (http://opiniojuris.org/2011/10/08/secret-doj-memo-on-awlaki-targeting/):


One thought, however. As Jack Goldsmith and Ben Wittes have argued at Lawfare, and I have argued here, although it is certainly helpful to have a summary in the press about the issues discussed in the secret memo and their resolution, the fact that it is merely leaked (quite apart from not making available the actual text) is a grave part of the problem here. If it can be shown to press people and written about at length, then it should be made available publicly, as official policy and part of the process of defending the policy. Leaks de-legitimize policy over the long run, and reforms to the accountability and oversight of “covert” actions that are not truly covert need to provide some mechanism for officially releasing information on their legal justifications. It’s good that this information is out there; it is bad that it was put out there through leaks.

And, a tongue in cheek comment (same page as Ken's post) directed at Glenn Greenwald:


Has Glenn Greenwald called Marty Lederman a war criminal yet? For complicity in providing legal cover to civilian drone operators engaged in belligerency. Poor Marty, the John Yoo of the left.

My BLUF: The Obama Administration in this matter (like "Fast and Furious" and Solyndra) will probably succeed in making itself look like a multi-handed (more than two) beast whose hands are not co-ordinated, where consistency is not a hallmark, and where competency is problematic.

The following to me is WTF Squared, US contacts NC family of al-Qaida propagandist (http://abclocal.go.com/wtvd/story?section=news/local&id=8384406) (8 Oct 2011):


CHARLOTTE, N.C. -- The U.S. State Department has offered the government's condolences to a North Carolina family whose son became an al-Qaida propagandist and was killed in a drone attack in Yemen, The Charlotte Observer reported Saturday.

The call came Thursday, nearly a week after 25-year-old Samir Khan was killed along with cleric Anwar al-Awlaki, a leader of al-Qaida in the Arabian Peninsula, the newspaper reported. Both men were American citizens.

Khan wrote a radical blog while living in Charlotte, then left to join al-Qaida and produce its English-language online magazine. U.S. officials said al-Awlaki was the target of the drone attack and Khan was collateral damage.

A State Department official called Khan's father, Zafar, a day after the family released a statement condemning Khan's extra-judicial "assassination," family spokesman Jibril Hough said. The family's statement said they were "appalled by the indifference shown to us by our government." They said they wanted the government to explain why Khan was not afforded due process and to discuss collecting his remains.

State Department spokesman Harry Edwards confirmed the call to Khan's family but declined to offer details citing "privacy issues." ....

Perhaps, there is prior DoS precedent ??

I think I'll take a nap. :)

Regards

Mike

Fuchs
10-09-2011, 06:51 PM
Foreign Policy: Obama's Death Panel (http://www.foreignpolicy.com/articles/2011/10/07/obamas_death_panel?page=0,1) by Bruce Ackerman


According to Reuters, American citizens like Awlaki aren't targeted directly by the president or politically responsible officials. The job is delegated to midlevel operatives in the White House's National Security Council (NSC), who then send their recommendations on to a panel of NSC "principals" comprising a shifting group of cabinet officers and intelligence chiefs, depending on the particular mission involved. We do not know how much information the "principals" receive or how much time they spend weighing the evidence. But such a transient body isn't a suitable forum for making life-and-death decisions about Americans. At the very least, the fate of fellow citizens should be determined by a seasoned group of decision-makers whose judgments are honed by deliberation over time.


NSC staffers + transient principals + passive president = death. No law or regulation sets out this formula, nor is there even a public record of the existence of the NSC panels.

jmm99
10-10-2011, 01:29 AM
Bruce Ackerman (http://en.wikipedia.org/wiki/Bruce_Ackerman) (Wiki) is a law prof (Yale). Spencer Ackerman (http://en.wikipedia.org/wiki/Spencer_Ackerman) (Wiki) is a national security reporter (aka Attackerman). Both are pretty much saying the same thing - "Death Panel" ..."No Due Process".

The Obama Administration opened itself up to that charge by (1) relying on war powers and military law as the principal basis for Awlaki's killing; but (2) then foregoing the military targeting process in favor of an NSC panel.

I doubt that the Ackermans would have been satisfied with the military targeting process. For example, Bruce asserts (with the certitude of a Stirling prof):


Up to this point, I haven't challenged the administration's larger claim that, putting aside the decision to target Awlaki, it had the congressional authority to send drones over Yemen in the first place. But the legal basis for its wide-ranging use of drones is remarkably weak. Shortly after Sept. 11, 2001, Congress certainly authorized force against any terrorist group that "planned, authorized, committed, or aided" the 9/11 attacks. But Awlaki belonged to an organization, al Qaeda in the Arabian Peninsula, that didn't even exist at the time. [JMM: this can be disputed] Indeed, it's increasingly tough to say that Congress's 2001 resolution authorizes the United States' continuing activities in Afghanistan and Pakistan, given America's recent decimation of the original al Qaeda's fighting capacity.

Now, the 2001 AUMF does look in futuro:


That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

but Bruce would limit that to groups using the same names today as they did pre-9/11. Obviously, the Executive Branch does not agree; nor does a majority of the Legislative Branch. Nor do I; neither does Bobby Chesney, Is There a Significant Distinction Between “al Qaeda” and “al Qaeda in the Arabian Peninsula”? (http://www.lawfareblog.com/2010/11/is-there-a-significant-distinction-between-al-qaeda-and-al-qaeda-in-the-arabian-peninsula/) (3 Nov 2010).

Who has constitutional authority to decide jus ad bellum (going to war) and jus in bello (behaving in war) issues ?

With very limited exceptions, the courts do not. These matters are "constitutional matters that are largely non-justiciable" - i.e., "political questions" as found by the Federal judge who dismissed the al-Awlaki family's law suit to enjoin his targeting. See my post, Al-Auloqi (Awlaki) case dismissed (http://council.smallwarsjournal.com/showpost.php?p=111093&postcount=43), from Dec 2010 (a number of links).

For those not familiar with Judge Bates' opinion, here are the key paragraphs:


To be sure, this Court recognizes the somewhat unsettling nature of its conclusion -- that there are circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is "constitutionally committed to the political branches" and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the "particular question" posed by a specific case, see El-Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any "carve-out" for cases involving the constitutional rights of U.S. citizens. While it may be true that "the political question doctrine wanes" where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. Indeed, in one of the only two cases since Baker v. Carr in which the Supreme Court has dismissed a case on political question grounds, the plaintiffs were U.S. citizens alleging violations of their constitutional rights. See Gilligan v. Morgan, 413 U.S. 1, 3 (1973).

In Gilligan, students at Kent State University brought suit in the wake of the "Kent State massacre," seeking declaratory and injunctive relief that would prohibit the Ohio Governor from "prematurely ordering National Guard troops to duty in civil disorders" and "restrain leaders of the National Guard from future violation of the students' constitutional rights." Id. According to the Court, the plaintiffs were, in essence, asking for "initial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard." Id. at 6. Dismissing the plaintiffs' claims as presenting non-justiciable political questions, the Court noted that "[i]t would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches." Id. at 10. As the Court explained, the Judiciary lacks the "competence" to take "complex subtle, and professional decisions as to the composition, training, equipping, and control of a military force," and "[t]he ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability." Id.

So, too, does the Constitution place responsibility for the military decisions at issue in this case "in the hands of those who are best positioned and most politically accountable for making them." Hamdi, 542 U.S. at 531; see also Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918) (explaining that "[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative - 'the political' - departments of the government, and the propriety of what may be done in the exercise of this power is not subject to judicial inquiry or decision"). "Judges, deficient in military knowledge . . . and sitting thousands of miles away from the field of action, cannot reasonably or appropriately determine" if a specific military operation is necessary or wise. DaCosta, 471 F.2d at 1155. Whether the alleged "terrorist activities" of an individual so threaten the national security of the United States as to warrant that military action be taken against that individual is a "political judgment[]. . . [which] belong[s] in the domain of political power not subject to judicial intrusion or inquiry." El-Shifa, 607 F.3d at 843 (internal quotation marks and citations omitted).

Contrary to plaintiff's assertion, in holding that the political question doctrine bars plaintiff's claims, this Court does not hold that the Executive possesses "unreviewable authority to order the assassination of any American whom he labels an enemy of the state." See Mot. Hr'g Tr. 118:1-2. Rather, the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an "operational" member of AQAP, see Clapper Decl. ¶ 15, presents such a threat to national security that the United States may authorize the use of lethal force against him. This Court readily acknowledges that it is a "drastic measure" for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a "terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009," id. ¶ 13. But as the D.C. Circuit explained in Schneider, a determination as to whether "drastic measures should be taen in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking." 412 F.3d at 197. Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff's claims, the Court finds that the political question doctrine bars judicial resolution of this case.

Thus, the questions are not "legal" issues in the usual sense (matters to be decided by the courts), but "policy" issues to be determined by the Executive and Legislative Branches. That is not "new law".

So, unless I can swing some votes in Congress and/or change policy in the WH, my opinions on Awlaki aren't likely to have any effect. Maybe one or both of the Ackermans will have better luck. :p

I wonder what percentage of voters in the US know the key judicial issue (justiciability) re: the Awlaki matter was decided 9 months ago ?

Regards

Mike

jmm99
10-10-2011, 02:28 AM
The memo described in Charlie Savage's article came out of DoJ's Office of Legal Counsel, "completed around June 2010."

The later position of the USG (let's say a "refined" version of the OLC memo) was far from secret - a public filing of the USG's Opposition to the Awlaki law suit (http://www.lawfareblog.com/wp-content/uploads/2010/09/usgbrief.pdf) (signed off by Tony West, Assistant Attorney General, Civil Division).

The key USG public background facts (pp.10-13 pdf):


Anwar al-Aulaqi is a dual U.S.-Yemeni citizen who is believed to be currently in Yemen. See Plaintiff’s Complaint ¶¶ 17, 26. As noted above, the United States Intelligence Community has publicly disclosed some information concerning Anwar al-Aulaqi, see Public DNI Clapper Decl. ¶¶ 13-15, including that:

* Anwar al-Aulaqi is a leader of AQAP, a Yemen-based terrorist group that has claimed responsibility for numerous terrorist acts against Saudi, Korean, Yemeni, and U.S. targets since January 2009. Id. ¶ 13.

* Anwar al-Aulaqi has pledged an oath of loyalty to AQAP emir, Nasir al-Wahishi, and is playing a key role in setting the strategic direction for AQAP. Id. ¶ 14.

* Anwar al-Aulaqi has also recruited individuals to join AQAP, facilitated training at camps in Yemen in support of acts of terrorism, and helped focus AQAP’s attention on planning attacks on U.S. interests. Id. ¶ 14.

* Since late 2009, Anwar al-Aulaqi has taken on an increasingly operational role in the group, including preparing Umar Farouk Abdulmutallab, who received instructions from Anwar Al–Aulaqi to detonate an explosive device aboard a U.S. airplane over U.S. airspace and thereafter attempted to do so aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009, for his operation. Id. ¶ 15.

Based in part on this information, on July 16, 2010, the U.S. Department of the Treasury issued an order designating Anwar al-Aulaqi a “Specially Designated Global Terrorist” (SDGT) for, inter alia, “acting for or on behalf of al-Qaeda in the Arabian Peninsula (AQAP) . . . and for providing financial, material or technological support for, or other services to or in support of, acts of terrorism[.]” Designation of ANWAR AL–AULAQI Pursuant to Executive Order 13224 and the Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594, 75 Fed. Reg. 43233, 43234 (July 23, 2010).[1] On July 20, 2010, four days after the Treasury Department designated Anwar al-Aulaqi a Global Terrorist, the United Nations’ Al-Qaeda and Taliban Sanctions Committee added him to its Consolidated List of individuals and entities associated with al-Qaeda, Osama bin Laden or the Taliban.[2] This listing was based on Anwar al-Aulaqi’s:


“participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of”, “recruiting for”, and “otherwise supporting acts or activities of ” Al-Qaeda (QE.4.01) and Al-Qaeda in the Arabian Peninsula (QE.A.129.10).

See Press Release, United Nations, QI.A.283.10 ANWAR NASSER ABDULLA AL-AULAQI (July 20, 2010).[3] The United Nations based its listing of Anwar al-Aulaqi on findings that are ... [page break for footnotes below]


1. This designation was issued pursuant to the President’s authority under the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-06. After the terrorist attacks of September 11, 2001, the President issued Executive Order No. 13224 (“E.O. 13224”), 66 Fed. Reg. 49,079 (2001), effective September 24, 2001, declaring a national emergency with respect to the “grave acts of terrorism . . . and the continuing and immediate threat of further attacks on United States nationals or the United States.” See E.O. 13224, Preamble. The Secretary of State previously designated AQAP as a Foreign Terrorist Organization on January 19, 2010, pursuant to her powers under the Antiterrorism and Effective Death Penalty Act, 8 U.S.C. § 1189.
(See http://www.state.gov/r/pa/prs/ps/2010/01/135364.htm).

2. On October 15, 1999, the United Nations Security Council established the Al-Qaeda and Taliban Sanctions Committee (“the Committee”). See U.N. Res. 1267 (Oct. 15, 1999)
(available at http://daccess-ods.un.org/TMP/7965262.53223419.html). The Committee previously added al-Qaeda to the Consolidated List on October 6, 2001, and AQAP on January 19, 2010.

3. Available at http://www.un.org/sc/committees/1267/NSQIA28310E.shtml.

substantially identical to those made by the U.S. Department of the Treasury. See id. In connection with the U.N. action, Ambassador Daniel Benjamin, the Department of State’s Coordinator for Counterterrorism explained:


Today’s designation of Anwar al-Aulaqi is in direct response to the operational role he plays in AQAP, and most importantly because of the integral part he played in planning AQAP’s attempted destruction of Northwest Airlines flight 253 over the United States. Anwar al-Aulaqi and AQAP actively engage in terrorist plotting with the intent to harm U.S. citizens. The UN’s listing of al-Aulaqi highlights the threat al-Aulaqi poses to the international community.

See Press Release, U.S. Department of State, Listing of Al-Qaeda in the Arabian Peninsula (AQAP) (July 20, 2010) (available at http://www.state.gov/r/pa/prs/ps/2010/07/144929.htm).[4]

The Director of the National Counterterrorism Center echoed these sentiments recently, testifying before Congress that “[d]ual US-Yemeni citizen and Islamic extremist ideologue Anwar al-Aulaqi played a significant role in the attempted [Christmas 2009] airliner attack . . . Aulaqi’s familiarity with the West and role in AQAP remain key concerns for us.” See September 22, 2010 Statement by Michael Leiter to the Senate Homeland Security and Governmental Affairs Committee, Exhibit 3 at pg. 5.

Furthermore, as noted above, the Executive Branch has determined that AQAP is an organized armed group that is either part of al-Qaeda or, alternatively, is an organized associated force, or cobelligerent, of al-Qaeda that has directed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court has recognized (see Hamdan, 548 U.S. at 628-31). Accordingly, although it would not be appropriate to make a comprehensive statement as to the circumstances in which he might ... [page break for footnote below]


4. The OFAC and UN designations pertain solely to action taken to block assets and impose economic sanctions, and the information relied upon for the designations is set forth solely as publicly available background information.

lawfully do so, it is sufficient to note that, consistent with the AUMF, and other applicable law, including the inherent right to self-defense, the President is authorized to use necessary and appropriate force against AQAP operational leaders, in compliance with applicable domestic and international legal requirements, including the laws of war.

The legal points in support of the jurisdiction of the Executive and Congress - the "political question" and "non-justiciability" issues - are 17 pages, attached as 2010 (snip) Awlaki - USG Opposition.pdf (http://council.smallwarsjournal.com/attachment.php?attachmentid=1509&stc=1&d=1318213485)

Regards

Mike

jmm99
10-10-2011, 03:26 AM
from Bill Moore

What constitutes an armed conflict? We are openly in an armed conflict with Al Qaeda and their associates, but let's look at the problem set from a wider perspective.

If another terrorist organization (not even associated with extreme Islam) decided to target the U.S. (let's say a new left wing terrorist organization in Latin America) and we had good intelligence on them, and had low confidence the ability and will of the host nation they were residing in to arrest them, then could the CIA conduct a covert operation to conduct a preemptive strike? We're not in an armed conflict, but we have reliable intelligence they will conduct a terrorist attack against U.S. interests.

Would the military be able to do this under title 10?

The discussion in the two posts above establish that these questions are "political questions" and are "non-justiable". The Executive and Legislative Branches have near "exclusive jurisdiction". Thus, these questions are not "legal" issues in the usual sense - to be submitted to and decided by the courts. Instead, they are best looked at as "policy" issues.

Based on experience (200+ years of Presidents and Congresses), the Executive Branch will take the initiative, determining answers to the key policy issues and sending them on to Congress formally or informally.

Some issues in the policy question matrix:


1. Whether an attack by the TVNSA group is "immediate", "imminent" or "in preparation" ?

2. How is the attack going to unfold and what is the estimated impact of the attack ?

3. What is the value of the intelligence ("more likely than not" or "clear & convincing"; probably not a "beyond a reasonable doubt" test) ?

4. Whether our armed response is best handled under Title 10, Title 50, Titles 10-50 or Titles 50-10 ?

5. Whether to engage in an armed conflict with the TVNSA group (law enforcement tools are not necessarily excluded) ?

It's up to Congress to accept, modify or reject. If Congress abdicates (essentially the result in our Libyan "not war"), the President's decision stands and is constitutionally correct.

Are you concerned, Bill, with a President whose knees might wobble; or with a President who might use his knees to raise the bad guy's testicles a bit ?

I think you might need to clarify the problem situation a bit for me to really get your concerns.

Regards

Mike

jmm99
10-10-2011, 03:50 AM
Tony West, Assistant Attorney General, Civil Division (http://www.whorunsgov.com/Profiles/Tony_West), who won the Awlaki case for the USG, was (1) while in private practice, attorney for John Walker Lindh; and (2) a friend of Pres. Obama:


West, who is a part of a power family in California, has known Obama since 2004, and he was a top fundraiser for Obama during the 2008 presidential campaign. He was finance co-chair of Obama’s California campaign, where the then-senator raised a record total of $65 million.

One can't make this stuff up.

Regards

Mike

Bill Moore
10-10-2011, 05:40 AM
Are you concerned, Bill, with a President whose knees might wobble; or with a President who might use his knees to raise the bad guy's testicles a bit ?

Actually I'm concerned about both. As you pointed out this is more of a policy than a legal issue. What we all hope for is good judgement and no rule book will enable that.

M-A Lagrange
10-10-2011, 06:38 AM
Hello Bill and Mike,

Thanks for all the doc. I have some comments on Bill link.


But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.
Ok, let me play the devil advocate here. If GC recognizes the active participation of civilian in military actions for the enemy, it also does for the “friends”.
On that particular point I feel a little frustrated. A CIA agent is not different from a non uniform wearing combatant from the enemy. Being part of a civilian administration conducting military operations does not exclude him from the GC.
That said, US have a law excluding their soldiers from being judged by any other jurisdiction than US. This does not change the fact that a civilian can be accused of war crimes, only the court.

Secondly, I found interesting the argumentation to justify that such action does not go against Jus ad Gentium.

As to whether it would violate Yemen’s sovereignty to fire a missile at someone on Yemeni soil, Yemen’s president secretly granted the United States that permission, as secret diplomatic cables obtained by WikiLeaks have revealed.
Basically, the US are doing it by the book (seeking sovereign foreign government agreement) despite having the technology to do it without permission. The remaining question is in deed the boundaries of the battle field, as I am not convinced by that statement:

The memorandum examined whether it was relevant that Mr. Awlaki was in Yemen, far from Afghanistan. It concluded that Mr. Awlaki’s geographical distance from the so-called hot battlefield did not preclude him from the armed conflict; given his presumed circumstances, the United States still had a right to use force to defend itself against him.
As said previously, my only concern is that targetted killings becomes a norm and then are used as "jurice prudence" by less accountable states supported and trained by US.

Finaly, as said in the article, there are occasions US are capable to set commando operations to “arrest” a HVT as Ben Laden. Now, my cynical political paranoid mind is telling me that we are entering in the cost consideration area rather in the risk evaluation area. And laws are used just to justify those budget cuts.

Fuchs
10-10-2011, 10:57 AM
@Jmm99:

I reat between teh lines that Ackerman was concerned about
* is this working as intended?
and
* can we be satisfied with how it's working?
and came to the conclusion no/no.

It's not merely a legal thing (courts in wartime and legal counsels of an administration aren't even close to perfect anyway), but a thing of organising how the state/government is being run.

To accept that the chief of the executive branch delegates the power to kill dissidents to some mid-level bureaucrats is not an idea that comforts him.


It's in tradition of the expansion/assuming of executive powers that was very visible during Nixon and GWB administrations, even during the Clinton administration, and that does not seem to be a popular tradition.
In other words; it's the road to authoritarian governance.

Bill Moore
10-10-2011, 04:25 PM
Posted by Fuchs,


To accept that the chief of the executive branch delegates the power to kill dissidents to some mid-level bureaucrats is not an idea that comforts him.

On this point (not the outcome) I tend to agree with you, and concur we need a better system. I think a reasonable legal process would have came to the same conclusion, but that may not always be the case. Where those who are debating this kill from a civil rights perspective are challenged is the logic of killing this particular individual is hard to argue. On the other hand, the process does need to be looked at.


It's in tradition of the expansion/assuming of executive powers that was very visible during Nixon and GWB administrations, even during the Clinton administration, and that does not seem to be a popular tradition.
In other words; it's the road to authoritarian governance.

A review of our history will probably verify that it was our left leaning administrations that were more prone to use covert operations than our right leaning administrations. Those that leaned towards the right (with Nixon being an exception) generally have much more respect for the Constitution.

Another reason executive power is expanding in my opinion is that the world has and is changing in ways that allows an adversary to conduct an attack on us with little to no warning, which means we need a rapid response and the person best positioned to make those decisions is the President. OIF didn't require a rapid response, and it was debated in Congress, it was legal by our standards. Our involvement in Libya as I understand it is questionable because it didn't go through that process. Maybe the President felt compelled to act quickly based on the humanitarian situation, but the scope of the mission expanded and before it did it could have been debated and voted on in Congress. Looking at notional cases, a nation or non-state actor launches a missile at the U.S., we suffer a major terrorist attack and another one is pending, North Korea invades South Korea, etc., all of these will require rapid "initial" responses, and the President has these powers. Rightfully so in my book.

jmm99
10-10-2011, 06:55 PM
1. The Executive and Legislative Branches have jurisdiction over Jus ad Bellum (going to war - the text gives Congress the edge here, if it elects to exercise its rights) and Jus in Bello (behaving in war - the text give the President the edge here as Commander in Chief).

2. The Judicial Branch doesn't generally have jurisdiction in these military matters - except where that Branch is "still open for business". Ex Parte Milligan (http://en.wikipedia.org/wiki/Ex_parte_Milligan) and Ex Parte Quirin (http://en.wikipedia.org/wiki/Ex_parte_Quirin).

3. Executive Branch power is at its weakest (allowing judicial intervention) in the domestic arena, esp. where Congress has not endorsed the Executive's actions. Steel Seizure Cases (http://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._v._Sawyer).

4. The Constitution does not deal explicitly with foreign interventions. My BLUF: the more "interventionistic" an administration is, the more it tends to a greater degree of "authoritarianism" (which can be inchoate - the powers are not exercised).

5. The Chief Executive cannot (not enough time to) get involved in the details of every Executive Branch action. So, the planning and decision-making process has to be delegated. The Constitution does not explicitly detail the delegation process.

My BLUF: Since we went to a military policy (and rules) to kill Awlaki, then the military targeting process should have been used. Since Awlaki was a mid-level functionary, what's wrong with mid-level functionaries deciding to pull the trigger ?

As far as I am concerned, when the CIA functions as a military arm, it should be considered military (a stroke of the "Executive Pen") - no matter who takes the lead in Titles 10-50 or Titles 50-10 operations.

----------------------------------------------
Why can't the AQ boys come under GC III -PWs ?

My BLUF: Because their group has not availed itself of the 1949 Common Article 2 (para 3) option to accept and apply the 1949 GCs. In most places where the US conducts warfare (even if not of an international character), 1949 GC IV will apply to true civilians via 1949 Common Article 2 (para 2):


1949 CA2, para 3:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.


1949 CA2, para 2:

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance

The Commentary to 1949 CA2, para 2:


This new provision is particularly pertinent for the protection of civilian persons under the Fourth Convention, but its inclusion is none the less appropriate in regard to prisoners of war, since, even in the absence of resistance, the Occupying Power might be tempted to intern all or part of the armed forces of the adversary in the interests of its future security. For that reason it was necessary to ensure that such internees would be treated as prisoners of war throughout their detention.

and a JMM Comment to the rule and commentary:

Paragraph 2 clearly applied to Afghanistan in 2001 (which never lost its status as a High Contracting Party, even under the US view that it had no recognized government). Who were the Occupying Powers ? The Taliban and Northern Alliance fit that definition. The US did not since it did not attempt to occupy the country in any formal legal sense (Iraq was a different matter, with US military and then civilian provisional governance). However, since the US was and is a High Signatory Party, it is arguable that it had an obligation under GC IV toward civilians in the areas where it had actual control. The Occupying Powers (Taliban and Northern Alliance) had the same GC obligations toward civilians, which neither observed very well.

The AQ, in addition to not meeting 1949 CA 2, para 3, did not meet the tests of 1949 GC III - PWs (Art. 4 et seq). None of the Gitmo detainees (except Hamdan) even claimed 1949 GC III PW status. All claimed 1949 GC IV status as privileged civilians (some successfully, some not).

Regards

Mike

Bill Moore
10-10-2011, 07:14 PM
Mike,

My comment on improving the process only pertains to the rare case when we target a U.S. citizen, I'm not advocating change for targeting non-U.S. citizens.

jmm99
10-11-2011, 05:55 AM
so far as killing is concerned, between a non-US citizen combatant AQ member; and a US citizen combatant AQ member who has expatriated himself. Both are members of a defined hostile armed force on foreign soil; and, given PID, can be killed anytime, anyplace without offer of surrender or any other notice.

If that US citizen combatant AQ member returns to the US as part of an invading armed force, the same rule should apply - given PID, he can be killed anytime, anyplace without offer of surrender or any other notice.

What if that US citizen never leaves the US, but becomes a combatant member of an AQ group within the US. Let us posit that that group executes a mini-Mombai successfully (proving they are a combat group); and now are peacefully (to all appearances) back in their homes. I'd say the same rule - given PID, those members can be killed anytime, anyplace without offer of surrender or any other notice. The USG might not do that for policy reasons; but consider the number of US citizens the USG killed on US soil because they were enemy combatants in our Civil War.

In all of these situations, we have to be engaged in an armed conflict with the TVNSA group (AQ in my three examples); and the US citizen has to be a combatant in that conflict - but so do non-citizens. I can't see why US citizens should be preferred over non-citizens in any of the three cases.

Regards

Mike

Bill Moore
10-11-2011, 08:53 AM
I think the difference is that I'm not sure he legally expatrioted himself, anymore than retired LTC Hackworth did. However, that is a minor issue compared to having a few mid level bureaucrats basically handing out a death sentence on an American citizen in secret. If Americans are conducting illegal activities in a foreign country and their security forces kill them then it may be legal within their system, but if we kill them without due process that may well be a slippery slope.

In the case of Awlaki I have already stated I agree with the action. The logic of doing so is undeniable in my book, but "if" this does open the door to wider targeting of Americans without due process then it is of concern. There are a lot of young Americans and Europeans that think they want to terrorists, and even travel to the Middle East, South Asia, Somalia for training and get disillusioned when they get there and leave without ever committing a crime worthy of death. Yet, if Americans are in a particular camp with the "possible intent" of conducting a terrorist attack on the homeland should we take them out? It is obviously a very dangerous threat, but it is still a potential threat. What if we're just concerned they're training other terrorists on how to survive in the U.S.?

On Awlaki we agree, but this business can get very complicated.

jmm99
10-11-2011, 03:32 PM
of a "US citizen [1] combatant AQ member [2] who has expatriated himself". That uses the simple factual test for Expatriation (http://en.wikipedia.org/wiki/Expatriate):


An expatriate (in abbreviated form, expat) is a person temporarily or permanently residing in a country and culture other than that of the person's upbringing or legal residence. The word comes from the Latin terms ex ("out of") and patria ("country, fatherland").

thereby avoiding the legal quagmires of Renunciation of citizenship (http://en.wikipedia.org/wiki/Renunciation_of_citizenship) and Denaturalization (http://en.wikipedia.org/wiki/Naturalization#Denaturalization).

Hackworth (http://en.wikipedia.org/wiki/David_Hackworth) (who had a number of policy viewpoints the same or similar to mine) was an expat to AUS for a decade. He was not a combatant in an armed force at war with the US. That is the essential test so far as I am concerned, which allows me to go on and include case 2 (an invasion force with a US citizen) and case 3 (a home-grown Mombai group).

Regards

Mike

PS: This is far-removed from anything I'm talking about:


Yet, if Americans are in a particular camp with the "possible intent" of conducting a terrorist attack on the homeland should we take them out? It is obviously a very dangerous threat, but it is still a potential threat.

A "very dangerous threat" based on "possible intent" ??? What an odd intelligence matrix. "Possible" is less than "probable" and even less than "plausible". "Intent" cannot be objectively determined without overt acts. I see no "very dangerous threat". Who in the present administration is propounding killing misguided youngsters ?

Now, if that particular misguided youngster happens to be in an AQ training camp with the rest of the AQ recruits - and we take out the camp - so be it; but that is not an individual targeted killing. If the guy leaves the camp as a "graduate", how do we know that he suddenly becomes "disallusioned" - unless he tells us ?

jmm99
10-11-2011, 09:04 PM
both critical of the Obama Administration for different reasons - and poles apart:

John Yoo, The Administration’s Strange Reasoning on al-Awlaki (http://www.nationalreview.com/corner/279613/administrations-strange-reasoning-al-awlaki-john-yoo) (9 Oct 2011)

Andy Worthington, Death from Afar: The Unaccountable Killing of Anwar al-Awlaqi (http://www.fff.org/comment/com1110d.asp) (4 Oct 2011).

I have to say for Andy that he does not ignore legal holdings that are against his position:


Technically, al-Awlaqi’s inclusion on a target list maintained by the U.S. military’s shadowy Joint Special Operations Command (JSOC), and the April 2010 decision to add him to “a list of suspected terrorists the CIA is authorized to kill,” which “required special approval from the White House” (as the Washington Post described it), is legal. This is because, in December last year, Judge John D. Bates of the district court in Washington, D.C., dismissed a lawsuit contesting President Obama’s “targeted killing” policy, which was submitted on behalf of al-Awlaqi’s father.

Judge Bates ruled that “the plaintiff did not have legal standing to challenge the targeting of his son,” and also concluded, alarmingly, “that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches’and judicially unreviewable.”

but that does not prevent him from hitting at the consequences as he views them (which BTW is OK):


This was unacceptable to the ACLU and the Center for Constitutional Rights, acting on behalf of al-Awlaqi’s father. They asked three particular questions that I found important:


Outside of the context of armed conflict, should it not be the case that the government can only carry out the “targeted killing” of an American citizen “as a last resort to address an imminent threat to life or physical safety”?

Why did the court not order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists?

How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?

These questions were unanswered, and they remain unanswered now, prompting John Bellinger to recommend that the Obama administration “should provide more information about the strict limits it applies to targeting and about who has been targeted.”

The ACLU and CCR could have asked those questions (and raised more) by appealing Judge Bates' Awlaki ruling - which they didn't do. Why they didn't appeal has puzzled me.

To me, the multi-million TSA searches and the multi-thousand ISP disclosure orders are going to have far greater long-term effects on the civil and political rights of US citizens, than whacking al-Awlaki (or not whacking him, for that matter). In those areas (as re: "enhanced interrogations" and "extraordinary renditions"), I stand more to Andy's side than to that of John Yoo. On the al-Awlaki issue, I do stand more to Yoo's side.

Regards

Mike

Bill Moore
10-12-2011, 05:19 AM
Posted by JMM,


A "very dangerous threat" based on "possible intent" ??? What an odd intelligence matrix. "Possible" is less than "probable" and even less than "plausible". "Intent" cannot be objectively determined without overt acts. I see no "very dangerous threat".

What an odd intelligence matrix? Isn't this the same matrix we used to justify invading Iraq? Wasn't there a book written not too many years ago called the "one percent doctrine"?

Possible may or may not be less than probable in this case, unfortunately I can't think of a term that would identify a midpoint on the scale between possible and probable.

If intent must be proven objectively, and it can't be proven objectively if overt acts are not observed that leaves two options I can think of off the top of my head. One, we monitor, wait, and then arrest if and when the overt act(s) are observed. That is obviously the appropriate approach legally, but if it overwhelms law enforcements capacity to do so and the risk of missing the overt act and allowing an attack to actually happen takes us to option two, which the FBI is frequently accused of using, which is leading the would be (could be) terrorist to demonstrate his intent by offering him/her a plot and then pass inert explosives to them. Once they take them we arrest them. A lot of lawyers call this entrapment.

Where you don't see a dangerous threat, I see a very serious "potential" threat. An American citizen who doesn't fit the preconceived profile of what a terrorist looks like, acts like, and can move freely in American streets is a person that has a much higher probability of defeating our security measures.


Now, if that particular misguided youngster happens to be in an AQ training camp with the rest of the AQ recruits - and we take out the camp - so be it; but that is not an individual targeted killing. If the guy leaves the camp as a "graduate", how do we know that he suddenly becomes "disallusioned" - unless he tells us ?

There are lots of ways to find out, but one way is he calls his parents and tells them he wants to come home, and then his parents call the State Department or the FBI and ask for help.


Hackworth (who had a number of policy viewpoints the same or similar to mine) was an expat to AUS for a decade. He was not a combatant in an armed force at war with the US. That is the essential test so far as I am concerned, which allows me to go on and include case 2 (an invasion force with a US citizen) and case 3 (a home-grown Mombai group).

IMO Hackworth was a great American who told the truth to an audience that wasn't comfortable with the truth. In turn they set loose the dogs of reputation killers to attack the person, because they couldn't challenge his arguments.

However, my point about bringing up Hackworth is what makes a person an expat legally? If I decide to reside in Mexico for a year am I legally an expat and no longer enjoy my rights as a U.S. citizen?

jmm99
10-12-2011, 03:31 PM
The NYT Editorial on al-Awlaki has finally been published, Justifying the Killing of an American (http://www.nytimes.com/2011/10/12/opinion/justifying-the-killing-of-an-american.html?_r=2&partner=rssnyt&emc=rss) (Published: October 11, 2011). As compared to the in-depth coverage we've seen over the last week, the editorial is comparatively weak tea.

Its BLUF is:


Mr. Awlaki was not entitled to full protections — an open-court trial in absentia would have been time-wasting and impractical — but as an American, he was entitled to some. The memo said Mr. Awlaki should be captured if feasible — an important principle, even though the government did not believe it could safely put commandos in Yemen to capture him.

Due process means more than a military risk analysis. It requires unambiguous and public guidelines for how the United States will follow federal and international law in approving targeted killings, particularly of Americans. And it means taking the decision beyond the executive echo chamber. We have argued (http://www.nytimes.com/2010/10/10/opinion/10sun1.html) that judicial review is required, perhaps a closed-door court similar to the Foreign Intelligence Surveillance Court, before anyone, especially a citizen, is placed on an assassination list.

The Obama administration seems to know that antiterrorist operations do not escape the rule of law. Its case would be far stronger if it would say so, out loud.

This quote allows me to segue into one of the concerns raised by Worthington and several of the items in Bill Moore's last post. But, later; I've a noon appointment.

Regards

Mike

jmm99
10-12-2011, 07:44 PM
The question posed by Worthington, the ACLU and CCR:


Outside of the context of armed conflict, should it not be the case that the government can only carry out the “targeted killing” of an American citizen “as a last resort to address an imminent threat to life or physical safety”?

My BLUF: Outside of the context of armed conflict, “targeted killing” should not apply at all. Nor, should any of the other "Wartime" rules based on status. By moving those wartime rules into our justice system, we run the risk of polluting that system. I'm glad Michael Hayden made that point in his debate - and took a shot at AG Holder in the process (this post (http://council.smallwarsjournal.com/showpost.php?p=126305&postcount=50)):


We had the attorney general talking to the American Congress about legislation that would make Miranda more malleable so that we could interrogate these kinds of people longer in our law enforcement approach.

I don't want to make Miranda more malleable. Miranda defends me. Defends you. Defends your rights. And we're forced to contort the law enforcement approach when we attempt to make it answer and deal with questions it was never designed to deal with. This is one of those questions. Don't take that other tool, "We are a nation of war [sic ! at war]" off the table.

Now, the first quote from Worthington, the ACLU and CCR (“as a last resort to address an imminent threat to life or physical safety”) may be speaking to a "Tennessee v Garner" situation (a fleeing felon, esp. from a lawful arrest, known dangerous from his prior conduct); but that is really a "Peacetime" rule based on conduct.

In the context of an armed conflict (jus in bello), the term "as a last resort to address an imminent threat to life or physical safety” introduces a constraint that is not required and is dangerous to the life and limb of soldiers and to those they are trying to protect.

Of course, politicians and the NYT love to have their cake and eat it too. So, we get the NYT concluding that Mr. Awlaki ought to have had "due process" and "rule of law" protections; but, mind you, not all of them because some of them would "time-wasting and impractical". So, let's pick from the "Rule of Law" here and the "Laws of War" there.

Since none of the resultant mishmash is justiable anyway (Bates et al are correct on that), legal opinions are really immaterial and the only material factor is the outcome of the political struggle. I'm game for that.

The issues surrounding "targeted killing" (unless one wants to do it in a "Peacetime" environment - I don't) are somewhat different from human intelligence operations. In a "Peacetime" environment, many human intelligence operations are illegal under the domestic laws of the targeted country.

So far as international law is concerned, "state practice" has been a wink and a nod, including to some extent covert "intelligence" actions that have been military in their primary nature.

Again, say the politicos, "we will have our cake and eat it too" - esp. if one has had a couple of early successes (e.g., Iran and Guatemala; but then the Bay of Pigs).

Even if FISA is justified in a wiretap situation (handled by other courts every day in different contexts), that does not justify a "FISA-type court" (whatever that really means) to oversee "targeted killings".

Regards

Mike

jmm99
10-12-2011, 08:24 PM
Taking Bill's points in reverse order:

Expatriation


IMO Hackworth was a great American who told the truth to an audience that wasn't comfortable with the truth. In turn they set loose the dogs of reputation killers to attack the person, because they couldn't challenge his arguments.

However, my point about bringing up Hackworth is what makes a person an expat legally? If I decide to reside in Mexico for a year am I legally an expat and no longer enjoy my rights as a U.S. citizen?

The answers are given in the hyperlinks in my post, I set out a simple factual test - case 1 (http://council.smallwarsjournal.com/showpost.php?p=126770&postcount=104)


of a "US citizen [1] combatant AQ member [2] who has expatriated himself". That uses the simple factual test for Expatriation (http://en.wikipedia.org/wiki/Expatriate):


An expatriate (in abbreviated form, expat) is a person temporarily or permanently residing in a country and culture other than that of the person's upbringing or legal residence. The word comes from the Latin terms ex ("out of") and patria ("country, fatherland").

thereby avoiding the legal quagmires of Renunciation of citizenship (http://en.wikipedia.org/wiki/Renunciation_of_citizenship) and Denaturalization (http://en.wikipedia.org/wiki/Naturalization#Denaturalization).

Expatriation (no matter how long) does not = Renunciation of citizenship or Denaturalization

BTW: Hackworth's smartest "Peacetime" move (or luckiest) was hiring Joe Califano, who was too busy to handle the "case" and passed Hackworth down to a young lawyer in Califano's firm - Brendan Sullivan, who was far from a "potted plant" even then. Luck of the draw.

--------------------------------------------
Misguided Youngsters


There are lots of ways to find out, but one way is he calls his parents and tells them he wants to come home, and then his parents call the State Department or the FBI and ask for help.

That's certainly one way. In any case, even under Wartime rules, the agency involved should (for sound intelligence reasons) bring the youngster in from the cold; and welcome him to a series of interviews in the best traditions of Hanns Joachim Scharff. Foregoing criminal prosecutions might well be part of the arrangement. And, rules aside, is the youngster (or oldster, as in at least one Gitmo case) really done with AQ ? - a difficult question to find answers even for a "Scharff" gator.

-----------------------------------------------------
Matrices and Stuff


What an odd intelligence matrix? Isn't this the same matrix we used to justify invading Iraq? Wasn't there a book written not too many years ago called the "one percent doctrine"?

Don't include me among that "we" if that is exemplified by the public DCI 2002 report on Iraq's Weapons of Mass Destruction. That report's bold face contained far more lawyerly weasel words than even I could tolerate.

I did support getting rid of Saddam because of his past conduct up through 2002; and to get rid of the UN Embargo. My support for nation-building was non-existent, and I said in Dec 2003 that we should be gone. I also thought the "one percent doctrine" as expressed by Suskind was nuts. I've written all that here at SWC; but have not checked my exact wording.


Possible may or may not be less than probable in this case, unfortunately I can't think of a term that would identify a midpoint on the scale between possible and probable.

As to "probable" - more likely than not, viewing all the evidence as a whole.

As to "possible", what is probable is also possible; but what is possible is not necessarily probable. A "one in a trillionth percent" is "possible".

As to "plausible", some good material evidence; but viewing all the evidence as a whole, it is not more likely than not. What is probable is also plausible; but what is plausible is not necessarily probable. What is plausible is also possible; but what is possible is not necessarily plausible.

The term "possible intent" covers too much waterfront - (1) because "possible" covers too much range; and (2) "intent" (like "belief") is also a difficult term to qualify, much less quantify.

This is not some tricky legal test (and it sure isn't philosophy). It's simply how I look at facts - thereby realizing that a gray area (for individual determination) exists in practice.


If intent must be proven objectively, and it can't be proven objectively if overt acts are not observed that leaves two options I can think of off the top of my head. One, we monitor, wait, and then arrest if and when the overt act(s) are observed. That is obviously the appropriate approach legally, but if it overwhelms law enforcements capacity to do so and the risk of missing the overt act and allowing an attack to actually happen takes us to option two, which the FBI is frequently accused of using, which is leading the would be (could be) terrorist to demonstrate his intent by offering him/her a plot and then pass inert explosives to them. Once they take them we arrest them. A lot of lawyers call this entrapment.

An overt criminal act (even under "Peacetime" rules; the two examples given above) can include speech - e.g., falsely yelling "fire" in a crowded theater; or an email outlining the criminal plan. Entrapment is a lousy defense (it does not usually succeed), even where the other half of the conspiracy is totally fabricated to fit what the conspirator wants.

These same "Peacetime" tools are not excluded from my "Wartime" tool kit; but once one starts down the "Peacetime" road - say, by fabricating via CI-1 a link to a TVNSA group (even if that group is real), I can't see how one can justify moving to "Wartime" rules and shooting the guy. The reason, BTW, has nothing to do with entrapment; but with the fact that the guy is not a real combatant in the real TVNSA group. And, you don't get that status even if the guy is a member of Quds - ain't no AUMF vice Iran or Quds (last I looked)


Where you don't see a dangerous threat, I see a very serious "potential" threat.

Remember my objection was and is to an intelligence matrix finding a "very dangerous threat" based on "possible intent". No way, under either "Peacetime" or "Wartime" rules. The same for it being a "very serious potential threat" based on "possible intent" - the substance is still the same.


An American citizen who doesn't fit the preconceived profile of what a terrorist looks like, acts like, and can move freely in American streets is a person that has a much higher probability of defeating our security measures.

All very true. That person is perfectly clandestine. He or she will not be on anyone's "hit list" of enemy combatants (not a status-based target under "Wartime" rules); nor will he or she be on anyone's investigation list (not a conduct-based person of interest under "Peacetime" rules). That person's beliefs and intentions will most likely be Mom and Apple Pie. So, unless our security services get lucky, that person will go on to successfully complete his or her mission.

Regards

Mike

jmm99
10-18-2011, 03:50 PM
The conflation of Title 10 (DoD) and Title 50 (CIA, but more generally "National Security") in direct actions is part and parcel of this thread; but that conflation - or convergence, as Bobby Chesney puts the question - applies in other areas as well.

Robert Chesney, Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1945392) (2011) (76 pages; free download):


Abstract:

One of the most striking features of the post-9/11 era has been the convergence of military and intelligence operations. Nothing illustrates the trend better than the CIA‟s emergence as a veritable combatant command in the conflict with al Qaeda, though it manifests as well through the expansion of clandestine special forces activities, joint CIA-special forces operations, and cyber activities that defy conventional categorization. All of which obviously is important from a policy perspective. Less obviously, it also has significant legal implications.

I do not refer to questions such as who lawfully may be targeted or what computer network operations amount to “armed attack,” though those are of course important matters. Rather, I am concerned here with America‟s domestic legal architecture for military and intelligence operations. That architecture is a half-baked affair consisting of a somewhat haphazard blend of decision-making rules, congressional notification requirements, and standing authorizations and constraints relevant to particular agencies. Convergence has a disruptive impact on key elements in that framework, especially those that rely on categorical distinctions that convergence confounds (like the notion of crisp delineations among collection, covert action, and military activity).

My first aim in this article is to map that impact as thoroughly as can be done through the public record, drawing attention to and disaggregating issues that have bedeviled government lawyers behind closed doors for some time. My second aim is normative, as I suggest a modest set of changes to the existing legal framework meant to improve democratic accountability and compliance with the rule of law in such operations, while preserving the benefits convergence generates.

This article will answer many of the questions which readers here at SWC have asked about Titles 10 & 50 operations.

Regards

Mike

jmm99
11-28-2011, 07:56 PM
In 2007, Gregory S. McNeal twisted some tails (but not mine ;)) with his Snatch-and-Grab Ops: Justifying Extraterritorial Abduction (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=961048):


Abstract:

The United States government is actively engaged in a search for individuals believed to have killed American citizens and destroyed American property. As most of these individuals live openly in foreign states hostile to the United States, achieving extradition often proves impossible. Despite repeated diplomatic efforts to secure the transfer of these terrorists to America, many continue to operate in foreign states under the protection of the host country's continued denial of the terrorist's presence within their borders.

The problem of bringing these individuals to justice is further complicated by the fact that the United States is rarely able to pinpoint their precise location. Terrorists typically reside in host countries where it is nearly impossible to find them amongst the citizens. Thus, the broad question is what tools are available to the U.S. government if it was to actually find a terrorist's location? Considering the inherent difficulty in finding that individual again, and the strong likelihood that leaving the individual to his own devices will yield further attacks on the United States, what ought the U.S. President do to preserve the peace and safety of American citizens? Specifically, are the options of the U.S. military restricted by international law trends?

This Article addresses these questions by specifically discussing whether a terror suspect who was forcibly abducted may be prosecuted by the United States despite possible territorial violations under the doctrine of male captus, bene detentus. The Article directly addresses whether territorial sovereignty can trump an effort to capture a terrorist who is planning future attacks. ...

especially given his conclusion:


IV. CONCLUSION

In the post-September 11th world of counter-terrorism, the United States has chosen to proactively combat the evil of terrorism that brought about the September 11th attacks. In the event that an enemy combatant argues for a lack of jurisdiction based on an extraterritorial abduction, the government can argue that the abduction was justified so long as there was no abuse or torture involved. The U.S. government should first argue under universal jurisdiction, where subject matter jurisdiction is worldwide in response to terrorism. Then, to the international community, the United States should argue efficient breach in support of a violation of territorial sovereignty. This argument would bring the international community’s focus to promoting the extradition or prosecution of war criminals and terrorists, rather than a criticism of minor territorial violations.

A defendant does not have a right to personally object to a territorial violation, because such a violation is only committed against the sovereign state. If such an objection is permitted, however, the extraterritorial abduction is still permissible under the doctrine of male captus, bene detentus under customary international law, codified international rules, U.S. jurisprudence, and foreign state decisions.

It will greatly benefit the international community to codify exactly what will warrant extraterritorial abductions and specifically how such actions may be used. Given the likelihood that the United States and other countries such as Israel will increase their use of extraterritorial kidnapping, the international community should act proactively to address the issue. Until the international community does codify the specific circumstances under which extraterritorial kidnapping is permissible, the United States is justified in exercising extraterritorial abductions under universal jurisdiction, passive personality, and finally, efficient breach.

This year McNeal has turned from the capture situation with first a critique of US critics who lack empirical evidence, Are Targeted Killings Unlawful? A Case Study in Empirical Claims Without Empirical Evidence (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1954795) (2011 draft; to be in TARGETED KILLINGS LAW AND MORALITY IN AN ASYMMETRICAL WORLD, Claire Finkelstein, Jens David Ohlin and Andrew Altman, eds., Oxford University Press, 2012):


Abstract:

Critics of the U.S. policy of targeted killing by unmanned aerial vehicles (UAVs or drones) generally lack credible information to justify their critiques. In fact, in many circumstances their claims are easily refuted, calling into question the reliability of their criticism.

This chapter highlights some of the most striking examples of inaccurate claims raised by critics of the U.S. policy of drone based targeted killing. Specifically, this chapter offers a much needed corrective to clarify the public record or offer empirical nuance where targeted killing critics offer only unsubstantiated and conclusory statements of fact and law.

Section I of this chapter discusses the decision protocol used by the U.S. military before launching a drone strike, a process that goes to extraordinary lengths to minimize civilian casualties. Although this decision protocol was once secret, recent litigation in federal court has resulted in the release of extensive information regarding U.S. targeting protocols. An analysis of this information indicates that the U.S. military engages in an unparalleled and rigorous procedure to minimize, if not eliminate entirely, civilian casualties. Although independent empirical evidence regarding civilian casualties is hard to come by, it is certainly the case that statistics proffered by some critics cannot be empirically verified; their skepticism of U.S. government statements is not backed up by anything more substantial than generic suspicion.

Section II of this chapter then addresses the critics' unsubstantiated claims about the legal, diplomatic and strategic results of drone strikes. Although the counter observations raised in this chapter do not, by themselves, demonstrate that targeted killings are morally or legally justified, they do however suggest that some of the moral or legal objections to targeted killings are based on empirical claims that are either dubious, impossible to verify, or just plain false.

(Abstract only online). This will twist a number of tails.

As does his empirical study of the kill situation as it works under Title 10 rules, The U.S. Practice of Collateral Damage Estimation and Mitigation (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1819583) (2011):


Abstract:

...

In recent years, an entire body of academic literature and policy commentary has been based on an incomplete understanding of how the U.S. conducts military operations. The literature is incomplete because U.S. practices are shrouded in secrecy and largely inaccessible. As a result commentators have lacked a descriptive foundation to analyze and critique U.S. operations. Their writings have focused on easily describable issues such as whether a target was a lawful military objective, and then typically shift attention to the question of proportionality balancing and collateral damage.

These commentators skip an important aspect of actual practice - the scientifically grounded mitigation steps followed by U.S. armed forces. Those mitigation steps are designed to ensure a less than 10% probability of collateral damage resulting from any pre-planned operation. This paper’s description differs from the general and incomplete approach currently found in scholarship and more accurately describes the reality of modern operations. In those operations U.S. armed forces follow rigorous steps prior to engaging in any proportionality balancing.

This paper is intentionally descriptive and explanatory; it makes a contribution to theory by providing a qualitative empirical account that explains for the first time in scholarly literature the process of collateral damage estimation and mitigation as practiced by the U.S. military. While this paper will be especially useful for those seeking to understand how collateral damage is estimated in targeted killing operations, the paper’s relevance is not limited to the context of targeted killings.

Key Findings: In pre-planned operations the U.S. military follows a rigorous collateral damage estimation process based on a progressively refined analysis of intelligence, weapon effects, and other information. When followed, this process dramatically reduces the amount of collateral damage in U.S. military operations, and also ensures high levels of political accountability. However, due to the realities of combat operations, the process cannot always be followed;

- The U.S. military’s collateral damage estimation process is intended to ensure that there will be a less than 10 percent probability of serious or lethal wounds to non-combatants;

- Less than 1% of pre-planned operations which followed the collateral damage estimation process resulted in collateral damage;

- When collateral damage has occurred, 70% of the time it was due to failed “positive identification” of a target. 22% of the time it was attributable to weapons malfunction, and a mere 8% of the time it was attributable to proportionality balancing - e.g. a conscious decision that anticipated military advantage outweighed collateral damage;

- According to public statements made by U.S. government officials the President of the United States or the Secretary of Defense must approve any pre-planned ISAF strike where 1 civilian casualty or greater is expected.

This last article also touches on Title 50-Title 10 operations - for which less empirical evidence exists.

Regards

Mike

jmm99
11-29-2011, 06:45 PM
The San Remo ROE Handbook (http://www.usnwc.edu/getattachment/7b0d0f70-bb07-48f2-af0a-7474e92d0bb0/San-Remo-ROE-Handbook) (2009) was a multi-national effort to create a set of rules for discussion purposes without transgressing the classification issues if actual ROEs were employed. The Handbook is therefor generalized, but is a useful framework for discussion.

McNeal uses a number of resources from the al-Aulaqi case, which included considerable revelation of previously classified portions of the targeting process (among several of the "state secrets" discussed). The following are USG public filings (unclassified):

Gov't Memo Opp to Preliminary Injunction and MTD_09-25-10.pdf (http://ccrjustice.org/files/15(1)-Al-Aulaqi%20USG%20PI%20Opp%20&%20MTD%20Brief_09-25-10.pdf)

Gov't MTD - Ex 1 - Clapper Decl_09-25-10.pdf (http://ccrjustice.org/files/15(2)-Al-Aulaqi%20Public%20DNI%20Clapper%20Decl_09-25-10.pdf)

Gov't MTD - Ex 2 - State Secrets Policy Memo_09-25-10.pdf (http://ccrjustice.org/files/15(3)-Al-Aulaqi%20USG%20PI%20Opp%20&%20MTD%20Brief%20Exhibit%20SSP%20Policy_09-25-10.pdf)

Gov't MTD- Ex 3 - Leiter Testimony_09-25-10.pdf (http://ccrjustice.org/files/15(5)-Al-Aulaqi%20Public%20SecDef%20Gates%20Decl_09-25-10.pdf)

Gov't MTD- Ex 4 - Gates Decl_09-25-10.pdf (http://ccrjustice.org/files/15(5)-Al-Aulaqi%20Public%20SecDef%20Gates%20Decl_09-25-10.pdf)

Gov't MTD - Ex 5 - Panetta Decl_09-25-10.pdf (http://ccrjustice.org/files/15(6)-Al-Aulaqi%20Public%20DCIA%20Panetta%20Decl_09-25-10.pdf)

Declaration of Jonathan Manes_10-08-2010.pdf (http://ccrjustice.org/files/Declaration%20of%20Jonathan%20Manes%2010-08-2010.pdf)

Govt's Reply re MTD_10-18-10.pdf (http://ccrjustice.org/files/Reply%20Brief%2010-08-2010.pdf)

The Jonathan Manes Declaration (52 pages) seems the most useful, as a framework for discussion, in regard to the targeting process.

Regards

Mike

jmm99
11-30-2011, 02:59 AM
Govt's Reply re MTD_10-18-10.pdf (http://ccrjustice.org/files/29%20-%20Govt's%20Reply%20re%20MTD%20w%20attachments_10-18-10.pdf)

Gov't MTD- Ex 3 - Leiter Testimony_09-25-10.pdf (http://ccrjustice.org/files/15(4)-Al-Aulaqi%20USG%20PI%20Opp%20&%20MTD%20Brief%20Exhibit%20Leiter%20Testimony_09-25-10.pdf)

Some issues earlier today with the CCR document center.

Regards

Mike

jmm99
01-24-2012, 05:27 AM
I've cited Ashley Deeks, Pakistan's Sovereignty and the Killing of Osama Bin Laden (http://www.asil.org/insights110505.cfm) (May 5, 2011), in my post in this thread, Another ASIL "Insight" - validating the OBL DA (http://council.smallwarsjournal.com/showpost.php?p=120767&postcount=21). For the most part, I felt she was on the right track (though not as definite as she might have been).

So also, my reaction to her expanded presentation in "Unwilling or Unable": Toward an Normative Framework for Extra-Territorial Self-Defense (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1971326) (Ashley Deeks, Columbia Law School; Virginia Journal of International Law, Vol. 52, 2012):


Abstract:

Non-state actors, including terrorist groups, regularly launch attacks against states, often from external bases. When a victim state seeks to respond with force to those attacks, it must decide whether to use force on the territory of another state with which it may not be in conflict. International law traditionally requires the victim state to assess whether the territorial state is “unwilling or unable” to suppress the threat itself. Only if the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test's lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a time when trans-national armed violence is pervasive.

This Article provides the first sustained descriptive and normative analysis of the test. Descriptively, it explains how the “unwilling or unable” test arises in international law as part of a state's inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test's deep roots in neutrality law, while simultaneously illustrating the lack of guidance about what inquiries a victim state must undertake when assessing whether another state is “unwilling or unable” to address a particular threat. Normatively, the Article plumbs two centuries of state practice to propose a core set of substantive and procedural factors that should inform the “unwilling or unable” inquiry. It then applies those factors to a real-world example – Colombia's use of force in Ecuador in 2008 against the Revolutionary Armed Forces of Colombia – to explore how the use of these factors would affect the involved states' decision-making and the evaluation by other states of the action's legality. The Article argues that the use of these factors would improve the quality of state decision-making surrounding the use of force in important substantive and procedural ways.

Ms Deeks appends several dozen examples of state action taken sans consent in "unwilling or unable" situations. I've attached a .pdf snip of the list. Many of these situations will be familiar to folks here who have studied them from military or political standpoints. Her focus (as an exemplar) is on FARC, Colombia and Equador.

The devil is always in the details. One such detail is the question of which balancing test should be used to justify state action. While Ms Deeks does not like a simple "efforts" test, she also rejects a "certainty" test (p.30 pdf):


This balance has proven notoriously difficult to achieve since the Charter‘s enactment, but striking the wrong balance may have seriously destabilizing results. Consider an "unwilling or unable" test that systematically over-protects the victim state‘s equities. Such a test might require the victim state to undertake only a superficial inquiry about the territorial state‘s willingness or ability to suppress the threat itself, or might set high expectations for the territorial state‘s capacity to address the threat, such that it would be easy for the victim state to conclude that the territorial state was unable to do so and to choose to use force itself.[67]


67. While victim states generally would be happy with a test that over-protects their equities, those states must be conscious that any test they use may be used against them in the future. Thus, even though Turkey might instinctively prefer a test that over-protects victim states (because it envisions itself most often in the situation of a victim state), it must consider how Iran might seek to apply the test if it believed that Kurdish rebels in Turkey were planning an attack against Iran. Thus, those states that expect most often to be in the position of victim states should place themselves behind a Rawlsian veil of ignorance in determining the characteristics of the test that they are willing to accept. Likewise, those states that expect that non-state actors might try to use their territory as a safe haven nevertheless should envision what test they would desire if they found themselves in the position of a victim state.

On the other hand, consider a test that systematically over-protects the territorial state‘s equities – for instance, by only allowing the victim state to deem the territorial state "unwilling" when the victim state proves to a high level of certainty that the territorial state assisted the non-state actor that undertook the armed attack. Victim states simply will ignore a test that under-protects their equities when national security is at stake.

One wonders what Ms Deeks thinks of combat ROEs which are based on a "certainty" test.

In fact, she does not argue what the standard of proof should be; although, she does suggest a "clear and convincing evidence" test (note 73):


73. Several scholars have written about the level of certainty that states must establish before using force. See, e.g., Lobel, supra note 71, at 539 ("The changing nature of warfare in the latter half of the twentieth century highlights the international community‘s need to develop rules and mechanisms to address the factual assertions upon which a nation employs armed force."); Waxman, supra note 60, at 58. The proper standard of proof that a victim state should be able to meet before taking action in a territorial state is an important and difficult question, because the facts underlying an "unwilling or unable" determination often will be contested. It may be that a standard akin to "clear and convincing evidence" will strike the best balance between the equities of the victim and territorial states. It may also be that the standard should shift depending on the level of threat that the victim state reasonably believes that it faces. Although the issue is worthy of further consideration, this article does not address in detail the standard of proof that a victim state must meet. However, it makes a baseline assumption that the victim state must act in good faith. See infra text accompanying notes 135-136.

Her suggestion that the standard of proof could shift based on the degree of threat has some merit.

This is a timely article as the Administration is expected soon to trot out AG Holder to justify the al-Aulaki strikes. I expect Ms Deeks could make a better presentation of the US position.

Regards

Mike

The examples in the attached snip start with the US in Spanish Florida (1817-1818; Seminoles) and end with Turkey in Irak (2010; PKK).

davidbfpo
01-28-2012, 07:44 PM
From the Kings of War blogsite an article I missed, the full title being 'Raffaello Pantucci on targeted killings: what are the alternatives?':http://kingsofwar.org.uk/2011/01/raffaello-pantucci-on-targeted-killings-what-are-the-alternatives/comment-page-1/#comment-14072

jmm99
01-29-2012, 01:10 AM
Initially, I failed to check the date (3 Jan 2011). Pantucci suggests (after running through some options which didn't and wouldn't fly in the US):


Maybe the solution is much simpler: the conflict needs to be recast as a ‘war’. People die in wars, usually for a rationale that a majority of the population accepts, or which it needs to be persuaded of. NATO went to Afghanistan in the wake of 9/11 to get those who carried out that heinous act, in a move that most supported (in the West at least). Let us refocus the rhetoric and language on this fact and that the drone war is an extension of this conflict. This is not to advocate the conflict’s indefinite continuance, but let us phrase the debate about strikes within that context and continue the discussion along these lines. This framework would also force a serious public conversation on the war in Afghanistan, rather than a debate about a tactic. It would furthermore provide a better context for understanding the path that the West is now on: slowly withdrawing troops from Afghanistan while continuing with drone strikes against set targets.

Of course, we've now had two administrations (one conservative Republican; one liberal Democratic) that have cast "targeted killings" in terms of warfare - technically, a confluence of Title 10 (Defense) & Title 50 (National Security).

The Federal courts have made it clear that they will not substitute themselves for either the President or Congress with respect to direct actions (al-Aulaki) or "indirect actions" (Libya). The direct actions themselves have established our (US) capability to execute kill or capture missions in most areas of the World.

Generally, 2011 was a bad year for opponents of targeted killing.

Regards

Mike

jmm99
01-29-2012, 04:05 AM
Opponents of targeted killing in particular and proponents of very restrictive ROEs in general were no doubt heartened by Prosecutor vs. Ante Gotovina, Ivan Čermak, and Mladen Markač (Summary (http://www.icty.org/x/cases/gotovina/tjug/en/110415_summary.pdf); Record Part 1 (http://www.icty.org/x/cases/gotovina/tjug/en/110415_judgement_vol1.pdf); Record Part 2 (http://www.icty.org/x/cases/gotovina/tjug/en/110415_judgement_vol2.pdf)) (ICTY, 15 Apr 2011).

Briefly, this international criminal case involved, among a number of other issues, alleged improper arty targeting in 1995 in the context of what was held to be an armed conflict of international character between Serbia and Croatia. However, the generality of the opinion lends it to application in any targeting situation, whether involving direct or indirect fires; as well as applying criminal liability to superiors not directly involved in controlling the fires.

Emory Law assembled a group of IHL (International Humanitarian Law, aka Law of Armed Conflicts, Laws of War) experts, who were:


John Altenburg, Jr.
Greenberg Traurig LLP
Major General (ret), US Army JAGC
Former Deputy Judge Advocate General of the Army

Laurie Blank
Director, International Humanitarian Law Clinic
Emory University School of Law

Geoffrey Corn
Professor of Law
South Texas College of Law
Lt. Colonel (ret), US Army JAGC

William Fenrick
Former Senior Advisor on Law of War Matters,
Legal Advisory Section
Office of the Prosecutor, ICTY
Commander (ret), Canadian Armed Forces

Donald Guter
Rear Admiral (ret), US Navy JAGC
Former Judge Advocate General of the Navy

Walter Huffman
Major General (ret), US Army JAGC
Former Judge Advocate General of the Army

Gary Solis
Colonel (ret), US Marine Corps
Former Director, Law of War Department, US Military Academy, West Point

Marc Warren
Colonel (ret), US Army JAGC

Richard Whitaker
Colonel (ret), US Army JAGC
* Participating in personal capacity only and not representing any specific or general position of the United States Special Operations Command

Jamie A. Williamson
IHL and International Criminal Law Practitioner, in personal capacity

Colonel Larry Youngner
US Air Force JAGC
Staff Judge Advocate
Air Force Special Operations Command
* Opinions expressed in this presentation may not reflect United States Air Force regulations or policy. The Air Force does not officially endorse and is not responsible for the accuracy or liability of the information.

Here at SWC, the general rule is that opinions are valued by their content with no required proof of expertise. The real legal world is different - and credentials do count. Let's say that this panel goes well beyond the minimum requirements to practice.

The Emory report, Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law (http://www.law.emory.edu/fileadmin/NEWWEBSITE/Centers_Clinics/IHLC/Gotovina_Meeting_Report.pdf) (2012), should foreclose any realistic chances for the Gotovina decision to become US targeting law (however, never discount the persistence of legalistic JAs). But, that decision will still be held to bind many of our military partners, even though the Emory panel skewers its flaws.

BLUF - The decision's impact on you (pp.15-16 pdf):


C. Institutional Concerns: The Effect on the Military

The U.S. and other advanced western militaries have a carefully developed and demonstrably sound system for the provision of legal advice before and during military operations. Military commanders and military lawyers both have important roles to play in this system, roles that depend on respect for each other and the respect of the troops for both the commander and the lawyer and their respective contributions to lawful and effective military operations. There was unanimous agreement among the expert participants at the November 4, 2011 meeting that the Gotovina judgment and the application of the law therein has the dangerous potential to undermine this delicate relationship.

First, as the discussion in Section II above shows, the legal framework the judgment creates does not make sense and cannot be implemented effectively at the operational level. Consequently, military lawyers will face the unenviable task of providing legal advice based on legal paradigms and rules that do not make sense. When the advice of lawyers is nonsensical, the commander will simply disregard the advice and act based on his or her own moral code. In many cases, the commander’s own moral parameters may well be an excellent guide for the conduct of military operations, but in others, it may not. And the disregard for the lawyer’s advice leads to inconsistency across multiple units and, more problematic, a disregard for the law itself. In essence, as more than one expert noted, IHL will only be relevant to nations that do not fight wars, a perverse result that cannot be in line with the ICTY’s own goals and mandate.

On a more institutional level, the experts agreed that the judgment may well have the effect of “silencing” the military lawyer. The legal adviser is the communicator of the law to the commander, and often a voice of reason and reflection in the targeting process. If the law is comprised of absolute rules detached from the pragmatic and inevitable variables of operations, rather than being based on the key principles and concepts central to IHL, then the commander has no reason to turn to the legal adviser for the simple fact that a rule that can never be complied with becomes effectively irrelevant. By undermining the law, the judgment thus undermines the legal advisor, which has a significant effect on the entire culture and institution of the military. Alternatively, the judgment can have an opposite, but equally troubling, consequence by eliminating all opportunities for the commander to exercise discretion and flexibility in the face of changing operational realities. With "no error" standards, every decision becomes a technical legal one, effectively removing all decision-making from the commander’s sphere and leaving it in the hands of the lawyer. Again, the experts expressed grave concern at the potential for such a result because it thoroughly emasculates the commander and turns every decision in combat from a strategic and legal decision into a political decision.

IV. Conclusion

At first glance, a judgment of the ICTY regarding the application of IHL to complex targeting operations involving two warring parties targeting military objectives in populated areas is a welcome development. With the progressive development and effective implementation of IHL in mind, careful consideration of the legal principles, obligations and standards could make a major contribution to IHL and to future military operations. Unfortunately, the Gotovina judgment as it stands goes in the very opposite direction. The military and operational law experts gathered at the November 4, 2011 roundtable discussion came together with the goals - shared with the ICTY -of promoting the development of IHL, ensuring the lawful conduct of military operations, and protecting civilians from the ravages of war. Because of the great potential for this decision to become a persuasive authority in the law of targeting, the experts believe it is important to highlight the legal flaws in the judgment and, even more important, the longer-term detrimental effects that the faulty application of the law will likely cause. Preserving the ability of military forces to conduct lawful military operations and protect civilians accordingly is essential.

Don't assume that everyone (including JAs) know of this report.

cont. in part 2

jmm99
01-29-2012, 04:50 AM
Getting down into the weeds (both quotes below are from pp.6-7 pdf, footnotes omitted) - and seeing what a group of judges can decide when they decide what is and is not a "correct military" standard - and thereby creating a "no errors" standard:


During the experts’ meeting, there was general consensus that the legal analysis in the Gotovina judgment risks undoing this legal framework for the role of intent in the crime of unlawful attacks against civilians. The judgment, as noted above, finds that all of the HV’s targets were lawful military objectives. It then concludes, however, that because a very small percentage (approximately 4.5%) of the artillery effects could not be attributed to a pre-established lawful object of attack, the overall operation constituted an unlawful attack on civilians.

In essence, the finding reflects a double failure. First, it rests primarily on an effects-based analysis that either ignores or disregards any investigation or evidence of the commander’s knowledge or intent at the time of the attack - information that is central to any valid IHL analysis. Second, the inference derived from these effects seems operationally irrational: instead of focusing on the 95.5% of valid effects to infer a legally compliant state of mind, the Chamber relied on the 4.5% (an attribution ratio that itself is questionable) of invalid effects to reach the opposite conclusion.

The experts recognize that the Trial Chamber ostensibly relied on the order to place Knin under artillery fire as direct evidence of the defendant’s state of mind. In doing so, however, the judgment places an overwhelming emphasis on post-attack effects, and draws an objectively irrational inference from those effects (the conclusion that a very small percentage of artillery effects resulting from over 900 rounds fired from maximum range cannot be directly linked to a pre-determined military objective indicates an unlawful intent). The experts were concerned that this methodology - judging targeting decisions based on unreasonable and incorrect standards - could become the accepted approach for assessing targeting decisions and operations.

Ultimately, it is impossible to ignore the import of this judgment: it encourages a determination of criminality based almost exclusively on effects, without any grasp of what the alleged perpetrator knew or intended at the time of the attack. Throughout the course of the expert group discussion, the participants emphasized the essential role of accountability in the effective implementation and enforcement of IHL. But the experts also stressed that accountability that rests on relaxed standards of mens rea - or de facto elimination of mens rea altogether - comes at too high a price. The Gotovina judgment essentially forces commanders to operate with a standard that accommodates no errors.

The "no errors" standard is doubly erroneous because it employs post-event findings of effects versus what the commander reasonably felt was more likely than not going to be the effects when he gave the order:


The legal standard in Additional Protocol I, the ICTY Statute, the ICC Statute and customary international law is that commanders are obligated to make reasonable decisions based on the information available at the time of the attack. The law does not judge commanders based on the outcome alone, nor does it require commanders to be right in all circumstances. Rather, the participants at the November 4, 2011 experts meeting agreed that any assessment of targeting must be based on the commander’s intent and whether the decision to launch the attack in question was objectively reasonable based on the information available at the time of decision, including the full range of operational execution variables that influence the actual effects of an attack.

More important, beyond the incorrect application of the law, the participants voiced a number of concerns regarding the imposition of a de facto strict liability standard for targeting determinations.

First, the judgment’s approach appears to lower the legal standard of culpability from the ICTY’s established standard of willful or reckless to a standard of reasonable but wrong after the fact, rendering reasonable action by a commander culpable based solely on hindsight and outcome-based interpretations. This approach transforms a reasonable judgment (which by definition is not reckless) into an unlawful judgment solely based on the fact that what was prospectively reasonable was not retrospectively perfect: a strict liability standard. In effect, the judgment conflates the criminal standard with the operational standard in IHL, leaving no room at all for commander discretion and the complexity of the modern battlefield and targeting decision-making. The correct standard in IHL is amorphous and subjective in many instances, but it also fairly represents operational realities. The judgment thus fails to recognize that a commander’s judgment may be reasonable but ultimately wrong - and not culpable.

Second, no commander will be able to meet the standard set forth in the Gotovina judgment, resulting in an oxymoronic result from the broader perspective of the fundamental goals of IHL. Forcing a commander to a “no error” standard is simply ineffective and even dangerous for future operations. Commanders will either refrain from engaging in military operations altogether out of an overabundance of caution in the face of an impossible standard, or will simply disregard the law entirely as no longer relevant to their purposes and mission. Under either scenario, innocent civilians are the ultimate victims - a result directly at cross-purposes with a central goal of IHL and of the ICTY.

Finally, the experts were equally concerned about the long-term disillusionment with international law that will be the likely result as the legal standards for international criminal accountability no longer have a rational relationship to the implementation of IHL in military operations, a topic addressed in greater detail in section III.A below.

Thus, the Emory report exposes a major fallacy in Gotovina: that commanders proceed at their own risk unless they are truly infallible - as measured ex post facto.

cont. in part 3

jmm99
01-29-2012, 05:28 AM
The report also considers the defective judicial measurement of proportionality (all quotes below from pp. 9-10 pdf, footnotes omitted). The first consideration was the value of the target (an HVT):


In the specific instance of Operation Storm, the participants at the expert roundtable discussed extensively how a proportionality analysis would be conducted in such a situation. The first step is, naturally, to assess the lawfulness of the target - as the Trial Chamber did in finding that President Martic’s residence was a lawful target. But the analysis does not end there. It is essential then to examine the value of the target in the context of the entire operation (and not merely as an individual object of attack) - in this case, Martic was the supreme military commander of the SVK during a deliberate attack against improved enemy defensive positions protecting their most vital strategic asset: their capital city. The experts agreed that almost any military commander would consider disrupting the ability of such a commander to influence the command, control, and communication of his forces during the decisive phase of an attack to be one of the highest priority targets. In the context of Operation Storm, Martic was perhaps the most valuable target in the city of Knin.

However, a simplistic designation as an HVT should not end the inquiry - since even HVTs can be scaled with respect to "military advantage" as compared to "civilian presence":


The experts also emphasized that a legitimate application of the proportionality rule requires an understanding of why a target is valuable - for example, does it make the attacking party stronger, the defending party weaker, and so on. Targets are not attacked merely because they are susceptible; they are attacked to produce defined effects related to the overall tactical and operational end state. Disrupting Martic’s ability to influence the battle, whether by targeting him directly, severing his command and control capabilities, or fixing him in place and isolated from his operational command post, for example, therefore offered a tremendously significant military advantage, particularly from the perspective of the commander at the time of the attack. Intelligence showing that Martic was in the building at the designated time would be relevant as well to the determination of the value of the building as a military objective. The Trial Chamber does not address these considerations at all, offering only the cursory statement that Martic’s residence was a lawful objective with no examination of the value or the military advantage at the time of the attack.

So, "military advantage" is one facet; "civilian presence" is the other:


On the alternate side of the proportionality assessment, the experts emphasized the need for equally careful consideration of the risk to civilians and the likely numbers of civilian casualties. Just as military advantage requires a thorough understanding and analysis of the nature and value of the target at the time of the attack, so the analysis of likely civilian casualties demands that a commander gather information regarding civilians who live and work in the area, and those who are likely to be present at the time of the attack.

Again, this assessment is heavily dependent on intelligence to enable the commander to get a picture of the situation on the ground around the target at the time of the attack so as to make the best decision possible. Simply noting that the designated lawful target is located in a civilian area is generally insufficient, but that appears to be the extent of the Trial Chamber’s analysis. Such a cursory approach ignores questions of whether civilians were actually still present in the city of Knin, whether they were likely to be present in the area around the target at the time of the attack, where they were at the time of attack, whether they were susceptible to the methods and means of attack, and how many civilians might be present and within the blast radius of the artillery attack, just to note a few critical aspects of information necessary for a comprehensive proportionality analysis.

Again, the Court looked at "proportionality" in hindsight:


The experts raised concerns about the nature of the Trial Chamber’s application of the principle of proportionality in the instant case of the attack on Martic’s residence. In particular, although the Trial Chamber correctly referenced proportionality in analyzing the lawfulness of the attack on Martic’s residence, it cited no relevant information from the Prosecution on which to base its conclusion of illegality. As a result, the judgment seems to apply a wholly retrospective approach to proportionality and failed to accord proper weight to the information about the commander’s intent or analysis at the time of the attack.

A second shortcoming, linking directly back to the importance of the target’s value, is that the judgment does not appear to consider the operational impact of attacking a target as significantly valuable as Martic. Many of the experts in fact expressed incredulity that such a low number of artillery rounds fired for harassing and/or disrupting effect at a time when civilians were unlikely to be out in public could be considered unlawful. The methodology – to the extent there is one – in the judgment does not represent the requisite marriage of intelligence and battle operating effects that is at the heart of the proportionality assessment at the time of the attack.

The Court's incomplete and ex post facto anaysis is likely to have negative impacts on military operations:


Beyond these immediate shortcomings, however, the experts shared a number of broader concerns about the impact of this case if the existing proportionality approach were to stand going forward.

First, some suggested that the failure to delineate and assign value to the military advantage to be gained from the target in question will undermine IHL’s goal of reducing death and suffering in war generally. Commanders who have no guidance or unhelpful guidance regarding how to assess lawfulness and proportionality in targeted leadership strikes may well simply adopt the tactic of large-scale attacks on enlisted personnel on the assumption that such attacks engage no complicated and amorphous proportionality judgments. Whereas carefully targeted strikes can have substantial efficacy in reducing the enemy’s ability and will to fight while causing only minimal casualties, the alternative would lead to extensive casualties and prolonged conflicts, a result neither international tribunals nor military leaders find palatable.

Second, to highlight two of the central themes of the expert discussion, the Trial Chamber’s approach does not provide either clarity or predictability for commanders planning and executing future military operations. A commander who is to be judged based on post-attack effects has no way to know, at the time of the attack, how to determine the parameters of lawful conduct. Here, it is important to emphasize that proportionality is more than just a principle; it is a methodology for assessing lawfulness in advance through careful consideration of both the value of the military advantage and the likelihood of civilian casualties.

By failing to either enunciate or apply any methodology in its proportionality analysis – by disregarding the numerous factors and variables that bear on a commander’s decision-making process – the Trial Chamber provides no guidance to future commanders on the lawful implementation of IHL in targeting. For many of the experts at the Nov. 4, 2011 meeting, this failure of methodology does a great disservice both to commanders of future military operations who seek to adhere to IHL and also to the law itself by undermining efforts to fulfill its goals and obligations.

The Emory report strikes me as a very important document - which is not going to be liked by some of the IHL community.

And, no; the Emory report does not contain the terms "postive identification, PID, reasonable certainty" - so dearly loved by the "CENTCOM" ROEs. As we know, those rules require enemy to be PID'd to a "reasonable certainty"; or concomitantly, "civilian presence" to be excluded to a "reasonable certainty". Supposedly, those ROEs - and the criminal penalties (murder, manslaughter, dereliction) if they aren't followed - are based on the Geneva Conventions.

The Emory report shows why that construct turns the GCs on their head (from p.3, n.5 pdf):


The Commentary to Additional Protocol I is clear that, by adding “the words ‘in the knowledge’ to the common constitutive elements set out in the opening sentence[, attacks on civilians are therefore] only a grave breach if the person committing the act knew with certainty that the described results would ensue, and this would not cover recklessness.” CLAUDE PILLOUD, YVES SANDOZ, CHRISTOPHE SWINARSKI, BRUNO ZIMMERMAN, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 996 (1987). Similarly, the Commentary to Article 51 of Additional Protocol I emphasizes that “in relation to criminal law the Protocol requires intent and, moreover, with regard to indiscriminate attacks, the element of prior knowledge of the predictable result.” Id. at 617.

A number of writers and prosecutors transit too easily from "civilians killed" to "civilians targeted".

Regards

Mike

jmm99
01-30-2012, 02:27 AM
Many of the experts who drafted the Emory report joined in drafting and signing an amicus brief in the pending Gotovina appeal, Application and Proposed Amicus Curiae Brief Concerning the 15 April 2011 Trial Chamber Judgment and Requesting That the Appeals Chamber Reconsider the Findings of Unlawful Artillery Attacks during Operation Storm (http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Application/NotIndexable/IT-06-90-A/MSC7958R0000353013.pdf) (English, 46 Pages; 12 Jan 2012):


Laurie R. Blank
Bill Boothby
Geoffrey S. Corn
William J. Fenrick
Professor C H B Garraway CBE
Dean Donald J. Guter
Walter B. Huffman
Eric Talbot Jensen
Mark E. Newcomb
Thomas J. Romig
Raymond C. Ruppert
Gary Solis

The prosecution objected to the brief, Prosecution Response to “Application and proposed amicus curiae brief” filed on 13 January 2012 (http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Response/NotIndexable/IT-06-90-A/MSC7958R0000353363.pdf) (English, 29 Pages). The defendant-appellant Gotovina supported it, Ante Gotovina’s Response to “Application and proposed Amicus Curiae Brief” filed on 13 January 2012 (http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Response/NotIndexable/IT-06-90-A/MSC7958R0000353550.pdf) [PUBLIC REDACTED VERSION] (English, 8 Pages).

The Appeals panel will later decide whether the amicus brief will be accepted. If the brief is rejected, the Appeals panel will be rejecting not only the "American" position, but the same position accepted by these non-USAian experts:


Bill Boothby

Bill Boothby retired in July 2011 as Deputy Director of Legal Services (RAF) in the 1 star rank of Air Commodore, having served for thirty years as a member of the Royal Air Force Legal Branch in Germany, Cyprus, Hong Kong, Croatia and UK. In 2009, he took a doctorate in International Law at the University of Frankfurt (Oder) in Germany, publishing his doctoral thesis on Weapons and the Law of Armed Conflict through OUP the same year. A member of
the Editorial Board of the UK Manual on the Law of Armed Conflict, the Harvard University convened Group of Experts that produced the HPCR Manual of the Law of Air and Missile Warfare, the ICRC / TMC Asser Inst Group of Experts that considered “direct participation in hostilities” and the CCD / COE Group of Experts currently working to produce the Tallinn Manual on the Law of Cyber Warfare, he is currently finalizing The Law of Targeting, scheduled for publication by OUP in September 2012. He presents widely on international law issues and teaches at the University of London, Royal Holloway College.


William J. Fenrick

Mr. Fenrick was a Senior Legal Adviser in the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia from 1994 until the end of 2004. He was the head of the Legal Advisory Section and the Senior Adviser on Law of War Matters. At the ICTY, he provided international law advice to the Prosecutor and argued at the trial and appeal levels, particularly on matters related to conflict classification, command responsibility, and crimes committed in combat. He was also the main author of the Report to the Prosecutor on the 1999 NATO Bombing Campaign against Yugoslavia. Immediately prior to coming to the ICTY, he was a member of the SCR 780 Commission of Experts investigating war crimes allegations in the former Yugoslavia and, as such, he was responsible for legal matters and for on-site investigations. He was a member of the Canadian Forces from 1962-70 and from 1972-94. He was a military lawyer in the Canadian Forces from 1974 to 1994, specializing in law of the sea, law of war and operational law matters. At various times, he was the Director of International Law, Director of Legal Training, and Director of Operational Law. He was a major participant
in the process which produced the San Remo Manual on the Law of Naval Warfare and he also participated in the process which resulted in the development by the ICRC of its guidance on Direct Participation in Hostilities. He has published widely on law of war matters, particularly on matters related to naval warfare and to prosecution of war criminals. He is a graduate of the
Royal Military College of Canada (BA (Hons Hist) 1966), Carleton University (MA (CDN Studies) 1968), Dalhousie University (LLB 1973), and George Washington University (LLM 1983). At present he is living in Halifax, Canada, where he co-taught a course in International Criminal Law (2005-9) and taught International Humanitarian Law (2006-11) at the Schulich School of Law at Dalhousie University.


Professor C H B Garraway CBE

Professor Garraway served for thirty years as a legal officer in the United Kingdom Army Legal Services, initially as a criminal prosecutor but later as an adviser in the law of armed conflict and operational law. He represented the Ministry of Defence at numerous international conferences and was part of the UK delegations to the First Review Conference for the 1981 Conventional
Weapons Convention, the negotiations on the establishment of an International Criminal Court, and the Diplomatic Conference that led to the 1999 Second Protocol to the 1954 Hague Convention on Cultural Property. He was also the senior Army lawyer deployed to the Gulf during the 1990/91 Gulf Conflict. Whilst still serving, he taught international humanitarian law at King’s College, London as well as acting as Course Director on the military courses run by the International Institute of Humanitarian Law, San Remo, Italy. On retirement, he spent three months in Baghdad working for the Foreign Office on transitional justice issues and six months as a Senior Research Fellow at the British Institute of International and Comparative Law before taking up the Stockton Chair in International Law at the United States Naval War College, Newport, Rhode Island in August 2004 for the year 2004/5. Professor Garraway was a Visiting Professor at King’s College London from 2002 to 2008, teaching the Law of Armed Conflict, and is currently an Associate Fellow at Chatham House and a Fellow at the Human Rights Centre, University of Essex. In December 2006, he was elected to the International Humanitarian Fact Finding Commission under Article 90 of Additional Protocol I to the Geneva Conventions of 1949. He worked for the British Red Cross from 2007 to 2011 and now works as an independent consultant. He was appointed CBE in 2002. He has worked on a number of expert groups including the ICRC projects on “Direct Participation in Hostilities” and “Occupation” as well as the Harvard Program on Humanitarian Policy and Conflict Research project on air and missile warfare. He is currently the General Editor of the United Kingdom Manual on the Law of Armed Conflict and carries out a number of consultancies for Government and international organizations, including the Commonwealth Secretariat. In 2011, he chaired the Commonwealth Working Group that updated the Commonwealth Model Law on the International Criminal Court.

One would think it hard for the Appeals panel to refuse the brief completely. Of course, it could accept the brief - and then ignore it on the merits.

cont. in part 2

jmm99
01-30-2012, 03:03 AM
Geoff Corn, one of the briefers, has filed an explanation of the reasons for filing the brief, Amicus Brief Challenging the ICTY’s Ruling on Distinction in Gotovina (http://www.lawfareblog.com/2012/01/amicus-brief-challenging-the-ictys-ruling-on-distinction-in-gotovina/). He also provides a brief summary of the key facts re: the military operation:


On April 15, 2011, the International Criminal Tribunal for the Former Yugoslavia issued its judgment in the case of Prosecutor v. Gotovina, et. al. Colonel General Ante Gotovina and two co-defendants were Generals in the Croatian Armed Forces (HV) tasked with launching the 1995 offensive to reestablish Croatian authority over the Croatian Serb breakaway region of the Krajina. Known as Operation Storm, the campaign involved a complex movement to contact by HV forces to defeat in depth Croat Serb forces (the SVK), capture the Krajina capital of Knin, and relieve pressure on neighboring Bosnian government forces fighting the Bosnian Serb dissident forces under the command of Ratko Mladic.

Ante Gotovina was an expatriate Croat and former non-commissioned officer in the French Foreign Legion. He returned to Croatia when the civil war began to join in the struggle against Serbian efforts to retain authority over the republic. Rising quickly through the ranks of the HV, he soon emerged as an exceptional operational leader. When the Croatian government decided to launch an offensive to reestablish its control over the breakaway Serb enclave in 1995, Gotovina was selected to lead the effort.

Operation Storm was remarkably successful. According to one source:


At dawn on 4 August 1995, the attack began with 150,000 Croatian Army troops amassed along 630 kilometres of front lines. Their forces soon broke through the lines of the Krajina Serb army and began a rapid advance toward the capital of Knin. By the second day of the operation, the Serb forces collapsed and the bulk of the [SVK] army retreated. The Croatian forces swiftly captured the entire region in four days, effectively ending the operation on 8 August. The operation, which lasted 84 hours, was documented as the largest European land offensive since World War II.

The operation also, however, resulted in the displacement of a large number of ethnic Serbs living in the Krajina. This ultimately led to an ICTY indictment alleging that Gotovina and his co-defendants committed crimes against humanity and ethnically cleansed the region.

Central to the Office of the Prosecutor’s (OTP) theory was an allegation that Gotovina ordered an unlawful artillery attack against the City of Knin on 4-5 August, the two days of the HV main offensive that lead to the capture of the city. At his trial, the OTP presented the opinion of Lieutenant Colonel Koenig, a career Dutch Artillery officer. Koenigs opined that the totality of the evidence, including operational orders, firing logs, enemy dispositions in Knin, and the pattern of artillery effects, indicated that Gotovina had ordered an indiscriminate use of HV artillery and that he had essentially treated the entire city as a general target. In response, the defense offered a report that I prepared on their behalf, and my testimony. In that report, I opined that there were a number of lawful military objectives located within Knin, that the totality of the evidence did not support a conclusion of unlawful attack, and that based on the assumptions provided to me by the defense (which were based on their understanding of the record facts), Gotovina’s employment of cannon and rocket artillery assets was both remarkably effective and compliant with the law of armed conflict.

Given facts like this (contested expert opinions), the choice of law by the Appeals panel becomes all important.

The amicus brief presents a number of legal issues. To me, the primary legal issue is the standard of proof required of a commander who orders an attack, where civilians might be involved (pp.15-16 pdf):


8. The Amici assume that the Appeals Chamber will likely follow the standard for targeting legality articulated in the Galic trial judgment. In that judgment, the Trial Chamber held that for an attack to qualify as a war crime, it “must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted.” [Galic, ¶ 42 (quoting Prosecutor v. Blaškic; Case No. IT-95-14-T, Trial Judgment, ¶ 180 (3 March 2000)]. In other words, the acts of violence must be wilfully directed against the civilian population or individual civilians.

Accordingly, we proceed on the premise that criminal culpability for targeting decisions requires proof that establishes beyond a reasonable doubt not only 1) that the commander intended to target protected persons or objects, or failed to exercise due care in the targeting process, but also 2) that the commander acted with this culpable state of mind based on the information reasonably available at the time he ordered the attack. If the commander made targeting decisions based on the situation as he reasonably believed given the “circumstances ruling at the time,” proof that his decision was in error is not dispositive of guilt. Only if the evidence establishes he knew or should have reasonably known the attack was unlawful at the time he directed it has he violated the law. In short, the legal standard does not impose an obligation to always be right: it imposes an obligation to make a reasonable decision based on the information available at the time.

Accordingly, a commander must not be found guilty of illegally targeting civilians or civilian objects based exclusively on a retrospective assessment of the evidence. The only valid basis for the criminal condemnation of a commander’s targeting decision is proof of the commander’s state of mind at the time the decision was made.

Frankly, the brief is "muddy" when it mixes two different standards of proof (1) actual intent - "conducted intentionally in the knowledge, or when it was impossible not to know, that civilians ... were being targeted"; and (2) negligence - "or failed to exercise due care in the targeting process". This disconnect may well come back to haunt the briefers.

Regards

Mike

jmm99
02-11-2012, 07:23 PM
How the Enemy recruits and trains for HVTs (hereof an airliner and possibly Detroit Metro Airport).

From US v Omar Farouk Abdulmutallab, USG Sentencing Memorandum (http://www.washingtonpost.com/wp-srv/world/documents/umar-farouk-abdul-mutallab-sentence-brief.pdf) (starting p.12 pdf):


In August 2009, defendant left Dubai, where he had been taking graduate classes, and traveled to Yemen. For several years, defendant had been following the online teachings of Anwar Awlaki, and he went to Yemen to try to meet him in order to discuss the possibility of becoming involved in jihad. Defendant by that time had become committed in his own mind to carrying out an act of jihad, and was contemplating “martyrdom;” i.e., a suicide operation in which he and others would be killed.

Once in Yemen, defendant visited mosques and asked people he met if they knew how he could meet Awlaki. Eventually, defendant made contact with an individual who in turn made Awlaki aware of defendant’s desire to meet him. Defendant provided this individual with the number for his Yemeni cellular telephone. Thereafter, defendant received a text message from Awlaki telling defendant to call him, which defendant did. During their brief telephone conversation, it was agreed that defendant would send Awlaki a written message explaining why he wanted to become involved in jihad. Defendant took several days to write his message to Awlaki, telling him of his desire to become involved in jihad, and seeking Awlaki’s guidance. After receiving defendant’s message, Awlaki sent defendant a response, telling him that Awlaki would find a way for defendant to become involved in jihad.

Thereafter, defendant was picked up and driven through the Yemeni desert. He eventually arrived at Awlaki’s house, and stayed there for three days. During that time, defendant met with Awlaki and the two men discussed martyrdom and jihad. Awlaki told defendant that jihad requires patience but comes with many rewards. Defendant understood that Awlaki used these discussions to evaluate defendant’s commitment to and suitability for jihad. Throughout, defendant expressed his willingness to become involved in any mission chosen for him, including martyrdom - and by the end of his stay, Awlaki had accepted defendant for a martyrdom mission.

Defendant left Awlaki’s house, and was taken to another house, where he met AQAP bombmaker Ibrahim Al Asiri. Defendant and Al Asiri discussed defendant’s desire to commit an act of jihad. Thereafter, Al Asiri discussed a plan for a martyrdom mission with Awlaki, who gave it final approval, and instructed Defendant Abdulmutallab on it. For the following two weeks, defendant trained in an AQAP camp, and received instruction in weapons and indoctrination in jihad. During his time in the training camp, defendant met many individuals, including Samir Khan. [9. Khan later came to be involved with AQAP’s Inspire magazine. Both Khan and Awlaki were killed in September 2011.]

Ibrahim Al Asiri constructed a bomb for defendant’s suicide mission and personally delivered it to Defendant Abdulmutallab. This was the bomb that defendant carried in his underwear on December 25, 2009. Al Asiri trained defendant in the use of the bomb, including by having defendant practice the manner in which the bomb would be detonated; that is, by pushing the plunger of a syringe, causing two chemicals to mix, and initiating a fire (which would then detonate the explosive).

Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days. The full video was approximately five minutes in length. [10 The Court has seen the thirty-four-second excerpt of the video that was subsequently released by AQAP as part of its video America and the Final Trap.]

Although Awlaki gave defendant operational flexibility, Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil. Beyond that, Awlaki gave defendant discretion to choose the flight and date. Awlaki instructed defendant not to fly directly from Yemen to Europe, as that could attract suspicion. As a result, defendant took a circuitous route, traveling from Yemen to Ethiopia to Ghana to Nigeria to Amsterdam to Detroit. Prior to defendant’s departure from Yemen, Awlaki’s last instructions to him were to wait until the airplane was over the United States and then to take the plane down.

Yet, some have asserted that al-Aulaqi's First Amendment rights were violated.

Regards

Mike

jmm99
03-06-2012, 05:53 AM
The full text of AG Holder's speech at Northwestern Law is here (http://www.lawfareblog.com/2012/03/text-of-the-attorney-generals-national-security-speech/), with Bobby Chesney's, Holder on Targeted Strikes: The Key Passages, with Commentary (http://www.lawfareblog.com/2012/03/holder-on-targeted-strikes-the-key-passages-with-commentary/) (both HT to Lawfare).

The larger portion of the speech (about 2/3rds) deals with the options of military detention, trial in Federal court and trial before military commission - see related threads, The Rules - Detaining HVTs and Others (http://council.smallwarsjournal.com/showthread.php?goto=newpost&t=14691) and Crimes, War Crimes and the War on Terror (http://council.smallwarsjournal.com/showthread.php?p=132867#post132867), for my two cents (which is similar in result to that reached by AG Holder).

The portion dealing with targeted strikes begins with AG Holder's exposition of the duty "... to defend the United States through the appropriate and lawful use of lethal force."


This principle has long been established under both U.S. and international law. In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.

Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want. International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

AG Holder's analysis follows an almost "pure" Laws of War approach (with which I agree), except for the unfortunate use of the terms "in self defense" and "an imminent threat of violent attack" (I don't agree).

Why so ? What follows is my logic.

If (as AG Holder posits) the rules of conventional warfare transfer to the unconventional warfare being waged by AQ (directly or via an associated force), then a combatant member of AQ (or that associated force) may be killed or captured at any time and at any place, even though that combatant member is not at that time presenting an "imminent threat of violent attack".

The ROE in that situation is based on status (the person's enemy combatant status), which extends the always in effect SROE based on defense of self and others in the face of the target's conduct (a hostile act or imminent hostile threat). AG Holder's subordinates have argued that status rule succcessfully in a number of DC District and Circuit habeas cases.

Why did the AG not take that approach ? I don't have ESP, but here is my brief analysis.

The concept of an "imminent threat of violent attack" is valid in situations of personal or unit self defense. The same concept is valid in situations of national self defense - as stated by the AG in the first paragraph quoted above: "The Constitution empowers the President to protect the nation from any imminent threat of violent attack." The devil is in what is meant by "imminent" in these self defense siuations - and what "standard of proof" is required of the defender.

My inference (sans ESP) is that the AG and the WH have not been and still are not really comfortable with applying in full the Laws of War in this situation of unconventional warfare.

I've emphasized AG Holder's apparent conflation of the Laws of War and Rule of Law because Bobby Chesney does not mention the point in his analysis - see roughly the first 40% of his commentary.

(cont. in part 2)

jmm99
03-06-2012, 06:17 AM
AG Holder then addresses the problem of US citizens who are members of AQ (or an associated group). Chesney (his post at Lawfare linked in part 1) presents his analysis with his comments in regular face and Holder's statements in italics (both are bolded as in Chesney's post).

First, as to the general rule:


[Chesney] At a minimum, force can be used against a citizen in the following circumstances…. Against that backdrop, Holder then describes a set of circumstances in which deadly force lawfully can be used against a citizen. Note that his language pointedly does not exclude the possibility of using force in other circumstances:

[Holder] Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances:

First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States;

second, capture is not feasible; and

third, the operation would be conducted in a manner consistent with applicable law of war principles.

[Chesney] Restating the test… I wish the preceding paragraph had been formulated more clearly, but in any event it seems to me that there are as many as seven elements in that statement. Read literally, Holder has defended targeted strikes against a citizen where the following conditions are met: the person must be (i) located abroad rather than in the United States, (ii) have a senior operational role (iii) with al Qaeda or an al Qaeda-associated force, (iv) with plotting focused on the death of Americans in particular, (v) with the threat being “imminent” (though not that this is defined in a broad sense, consistent with Brennan’s fall 2011 speech), (vi) with no feasible option for capture, and (vii) all subject to law of war principles. And, again, note that he carefully did not describe this as the outer boundary of lethal force authority when it comes to a citizen.

This sounds somewhat similar to the type of logic followed in Tennessee v Garner re: shooting a fleeing violent felon; except that it is based on Fifth Amendment Due Process (the viewpoint of some Garner dissenters; the majority went off on Fourth Amendment Search & Seizure) and does not require judicial approval at any stage. Again, to Chesney:


[Chesney] Rejecting a requirement for advance judicial permission… This part is interesting. The main line of criticism arising under the 5th Amendment has been that force cannot be used against citizens, on a pre-targeted, individualized basis, without the factual predicates for the action being put to the test in an independent, judicial forum. Holder rejects that conclusion, in part apparently in reliance on the decision by Judge Bates not to adjudicate the habeas petition brought by al-Awlaki’s father, in part on comparative institutional competence grounds to the effect that the executive branch has superior access to relevant information and expertise (and capacity to make quick decisions) with respect to targeting decisions, and comparative institutional legitimacy grounds to the effect that such decisions are a “core function” of the executive branch:

[Holder] Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

[Chesney] The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history. Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time. The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.

It is a given then that the Federal courts will not be involved in deciding these three areas covered by AG Holder - though not in great detail:


What is meant by “imminent threat”

[Holder] The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.

What is meant by “capture is not feasible"

[Holder] Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question. It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel. Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.

What is meant by “consistent with applicable law of war principles"

[Holder] Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force. The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

The first two limitations do not arise directly from the Laws of War. Again, they seem to indicate the discomfort of AG Holder and the WH with full bore application of the Laws of War to this unconventional warfare situation. As a counter-example, in the conventional WWII ETO situation, US citizens fighting with the German Army were treated the same as any other German soldier.

Regards

Mike

jmm99
03-17-2012, 04:57 PM
HT to Lawfare. From the The Washington Post: The bin Laden plot to kill President Obama (http://www.washingtonpost.com/opinions/the-bin-laden-plot-to-kill-president-obama/2012/03/16/gIQAwN5RGS_story.html?hpid=z1) (by David Ignatius, Published: March 16, 2012):


Before his death, Osama bin Laden boldly commanded his network to organize special cells in Afghanistan and Pakistan to attack the aircraft of President Obama and Gen. David H. Petraeus.

“The reason for concentrating on them,” the al-Qaeda leader explained to his top lieutenant, “is that Obama is the head of infidelity and killing him automatically will make [Vice President] Biden take over the presidency. . . . Biden is totally unprepared for that post, which will lead the U.S. into a crisis. As for Petraeus, he is the man of the hour . . . and killing him would alter the war’s path” in Afghanistan.
...
The scheme is described in one of the documents taken from bin Laden’s compound by U.S. forces on May 2, the night he was killed. I was given an exclusive look at some of these remarkable documents by a senior administration official. They have been declassified and will be available soon to the public in their original Arabic texts and translations. ... (much more)

Regards

Mike

jmm99
03-21-2012, 09:28 PM
Jack Goldsmith is a Harvard Law professor and a member of the Hoover Task Force on National Security and Law. He served in the Bush administration as assistant attorney general in charge of the Office of Legal Counsel. His new book is Power and Constraint: The Accountable Presidency after 9/11 (http://www.amazon.com/Power-Constraint-Accountable-Presidency-After/dp/0393081338/ref=sr_1_1?s=books&ie=UTF8&qid=1332191323&sr=1-1).

He recently wrote at Foreign Policy, Fire When Ready (http://www.foreignpolicy.com/articles/2012/03/19/fire_when_ready?page=full) (12 Mar 2012), which overall is a good summary of the points covered in this thread re: targeted killings (emphasis added).

His BLUF:


While the Obama administration can improve its public explanations for targeted killing, its critics have wildly overstated the legal concerns about the practice. Even exaggerated criticisms, however, can serve a useful role. As I detail in my book, an important lesson of the first decade of indefinite war against al Qaeda and its affiliates is that relentless and sometimes brutal scrutiny and criticism of the presidency from all quarters forces the presidency to engage in self-reflection and public justification that, in the end, strengthen it. The criticisms of targeted killing have produced public debate and limited judicial scrutiny of targeted killings that have enhanced the legitimacy of the practice. They have also encouraged the executive branch to tread very carefully and to provide much more public information and explanation about its operations than usual. There is room for improvement, of course, but we should not be blind to how deeply the Obama administration's targeting killing practices are embedded in the rule of law.

Agreed, except I would make it clear that the primary justification has to be based on the Laws of War. Those can, of course, be included within the rule of law as broadly defined (as LawVol, for example, has pointed out).

If one views policy as being the primary driver for whether targeted killings are or not employed, then Jack's citation of the polls is a critical element:


These disclosures have fostered a robust public debate about targeting killing in the United States and abroad, and the American public broadly approves of what it sees. According to a recent Washington Post/ABC News poll (http://www.washingtonpost.com/wp-srv/politics/polls/postabcpoll_020412.html), 83 percent of respondents (including 77 percent of liberal Democrats (http://www.washingtonpost.com/politics/poll-finds-broad-support-for-obamas-counterterrorism-policies/2012/02/07/gIQAFrSEyQ_story.html)) say they approve of the Obama administration's use of drones against terror suspects overseas, while only 11 percent disapprove. The approval/disapproval numbers drop to 65/26 percent when respondents are told that the targets are American citizens. As the Washington Post's Greg Sargent (http://www.washingtonpost.com/blogs/plum-line/post/liberals-dems-approve-of-drone-strikes-on-american-citizens-abroad/2012/02/08/gIQAIqCzyQ_blog.html) noted, "65 percent is still a very big number." Sargent added that "Democrats approve of the drone strikes on American citizens by 58-33, and even liberals approve of them, 55-35."

Given this political support, the political issue of targeted killings appears closed among USAians. Of course, lawyers and non-lawyers, academics and non-academics are free to argue the issue one way or the other. Thus, the comments to Jack's piece are interesting.

An interesting comparison is that roughly the same numbers oppose US air strikes and US ground force intervention in Syria (more oppose ground force intervention). And, roughly the same number support withdrawal from Astan by 2014 or sooner.

Regards

Mike

jmm99
10-28-2012, 05:55 AM
The recent speech by Ben Emmerson (http://www.upi.com/Top_News/US/2012/10/26/UN-to-probe-errant-US-drone-attacks/UPI-59031351236600/) QC [Queen's Counsel], United Nations Special Rapporteur on Counter-Terrorism and Human Rights, at the Harvard Law School (26 Oct 2012), is attached as a pdf file.

At the outset, it is best to recognize that Mr. Emmerson believes he has a "mandate" (a term used just south of a dozen times in 17 pdf pages). I believe that he believes deeply in every single sentence he's written. I don't.

In terms of the legal jargon, International Human Rights Law is analogized in US Law by Bill of Rights Law (as expanded by the later post-Civil War amendments) - the two sets are overlapping, but not co-extensive. International Humanitarian Law is analogized in US Law by its Laws of War (or Laws of Armed Conflict) - again, the two sets are overlapping, but not co-extensive.

Leaving aside biographies for the moment, we will cover the key points of the Special Rapporteur's speech.

The UN Security Council's Mandate to Members


Initially, there was little mention of human rights in any of the initiatives at UN level. But in 2003 the Security Council passed resolution 1456 which included for the first time a provision requiring States to ensure that any measures taken to combat terrorism must comply with their obligations under international law, and in particular international human rights, humanitarian and refugee law.
...
The process of reform at UN level did not begin in earnest until 2006 when the General Assembly adopted the UN Global Counter-Terrorism Strategy. This was intended to be the first comprehensive international statement of obligations resting on States to combat terrorism, and to promote international co-operation within a rule of law framework. Pillar IV of the Strategy sets out specific rule of law guarantees. The requirement for human rights protection underpins the entire Strategy. Whilst the Strategy was under negotiation the UN Human Rights Commission established the mandate of Special Rapporteur on Counter-Terrorism and Human Rights, the mandate which I now hold.
...
The positive statements of principle by the General Assembly and the Security Council have to be turned from mere rhetoric into practice.
...
Security Council resolution 1963 (2010) finally recognised in terms that terrorism will not be defeated by military force, law enforcement measures, and intelligence operations alone, and underlines the need to address the conditions conducive to the spread of terrorism. It recognises that respect for the rule of law, and the protection of human rights and fundamental freedoms, are essential means of offering a viable alternative to those who could otherwise be susceptible to terrorist recruitment and to radicalization.

In other words, the Security Council itself has now come to accept that it is necessary to tackle not only the manifestations of terrorism but also its causes. In the process it has also acknowledged that respect for human rights is essential to an effective strategy of prevention, and that the reverse is equally true.

One wonders how much materiality Mr. Emmerson would give to certain brands of Islam as causes of terrorism.

His Attack on the War Paradigm


The first core challenge is what I will call the global war paradigm. This is the proposition, culled by lawyers and officials of the US State Department under the Bush administration, that since 9/11 the US and its allies have been at war with a stateless enemy and that accordingly its actions are to be judged by the laws of war, rather than the laws applicable in peace-time.
...
The idea that international terrorism in all of its modern forms and manifestations is capable of being definitively defeated by military means seems with retrospect extremely nave. We have seen new forms of terrorism, and new alliances forming even over the past few months in Libya, Mali, other parts of North Africa, Syria and elsewhere. No one now seriously believes that terrorism is a phenomenon that is capable of being militarily defeated.

Most all US courts (the DC Circuit being the leading example) have adopted the "war paradigm" - the US Laws of War (LOAC) as the rules of decision. More than 80% of US voters support the Obama drone strikes, except as to US citizens (e.g., al-Awlaki, where the percentage is still higher than 60%).

His War Crime Indictment


A leading academic study by two US universities, released last month, has endorsed the figures of the London-based Bureau of Investigative as amongst the most reliable sources available in relation to the impact of these drone attacks. Those figures suggest that at least 474 civilians have been killed in Pakistan alone, and that 176 children are reported among the deaths. The Bureau has also alleged that since President Obama took office at least 50 civilians were killed in follow-up strikes when they had gone to help victims and more than 20 civilians have also been attacked in deliberate strikes on funerals and mourners. My colleague Christof Heyns, the Special Rapporteur on extra-judicial, summary and arbitrary executions has described such attacks, if they prove to have happened, as war crimes. I would endorse that view.

The Bureau of Investigative Journalism (http://www.thebureauinvestigates.com/) (BIJ): to correct the typo in the text. I've discussed that source briefly in a couple of posts (as has David). The "facts" alleged in the foregoing quote will be disputed by the USG.

The Lawsuits vs the United States


There are now a large number of law suits, in different parts of the world, including in the UK, Pakistan and in the US itself, through which pressure for investigation and accountability is building. Just last week the High Court in London heard an application for judicial review by the son of a man who was allegedly killed in a US drone strike in North Waziristan in March last year. The strike killed 40 people who – it is claimed – were meeting to discuss a local mining dispute. He is seeking a declaration from the High Court that it is unlawful for the UK's signals intelligence agency GCHQ to share targeting intelligence with the United States, for the purposes of drone attacks. The claim is that GCHQ has been using telephone intercepts to provide the US with locational intelligence on alleged militants in Pakistan and Afghanistan.

In Pakistan itself, there are two separate claims proceeding in the courts. One is aimed at triggering a criminal investigation into the actions of two former CIA officials alleged to be responsible for drone strikes which caused disproportionate civilian casualties. The other is seeking a declaration that the strikes amount to acts of war, in order to pressurise the Pakistani air force into shooting down drones operating in the country's airspace. Whatever the outcome of these cases, the suggestions that have been made to the effect that the Government of Pakistan has given tacit consent to the use of US drones on its territory is under scrutiny.

During the last session of the UN Human Rights Council in Geneva in June many states, including Russia and China, called for an investigation into the use of drone strikes as a means of targeted killing. One of the States that made that call was Pakistan. I was asked by these States to bring forward proposals on this issue, and I have been working closely on the subject of drones with Christof Heyns. The issue is moving rapidly up the international agenda.

Therefore, US and US citizens be forewarned as to what is coming.

- cont. -

jmm99
10-28-2012, 06:18 AM
The 2010 UN Report


In February 2010 my mandate, together with three other UN special procedures mandates, presented a Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism to the United Nations Human Rights Council. The UN Study included a detailed analysis of the evidence as to the practice of secret detention both before and after 11 September 2001 in Asia, Central Asia, Europe, the Middle East and North Africa and Sub-Saharan Africa and made recommendations including as to the duty of states to investigate allegations of secret detention, torture and rendition and, where appropriate, provide reparation to victims of these practices.

The report identified a number of States that appeared to have been directly complicit in violations of international law by detaining so-called high-value detainees in secret black site locations on their territory, or allowing the use of their air transport facilities or airspace to facilitate extraordinary renditions, that is international movement of suspects outside the framework of international law. Some of those detained have alleged that they
were tortured at these locations.

Similar investigations have been conducted by the Human Rights Sub-Committee of the European Parliament and by the Council of Europe's Parliamentary Assembly. Despite significant obstacles, the case for securing accountability is gathering momentum. Congress has also conducted an investigation into these practices, although its report has not yet been made public. Meanwhile there are criminal, parliamentary and judicial inquiries taking place in a number of States. A prosecution of a senior official has begun in Poland, and the European Court of Human Rights has recently demanded a complete explanation from Poland and from Romania of their involvement in the CIA programme in the context of an application brought by one of the Guatanamo detainees who is currently facing the death penalty in a military commission trial alleging his participation in the attack on the USS Cole. There are at least four other cases in the pipeline in which European States are being called to account for the complicity in the use of secret detention, rendition and torture in support of the operations run by the Bush-era CIA.

I'll take these assertions at face value (unless corrected by someone); and that the EU states are hot on the hunts for "war criminals".

The UN Special Investgation Unit


If the relevant States are not willing to establish effective independent monitoring mechanisms that meet these international standards, then it may in the last resort be necessary for the UN to act, and to establish such mechanisms itself. Steps are already in hand to set up the necessary modalities, and following discussions this week I can today announce that, together with my colleague Christof Heyns, I will be launching an investigation unit within the Special Procedures of the Human Rights Council to inquire into individual drone attacks, and other forms of targeted killing conducted in counterterrorism operations, in which it is alleged that civilian casualties have been inflicted, and to seek explanations from the States using this technology and the States on whose territory it is used. This unit will begin its work early next year and will be based in Geneva.

One wonders, at what point, will apparent UN and EU values (if well represented by Mr Emmerson and Mr Heyns) differ from US values by so much that a break in relations will occur.

Biography of Ben Emmerson (http://www.matrixlaw.co.uk/Members/49/Ben%20Emmerson.aspx) (at Matrix Chambers, his firm):


Ben Emmerson QC is an international lawyer, specialising in European human rights law, public international law and international criminal law. He was a founder member of Matrix Chambers and has 25 years’ experience litigating before international courts and tribunals including the International Court of Justice, the European Court of Human Rights, the European Court of Justice, the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia. Within the UK he is a deputy High Court Judge, a Master of the Bench of Middle Temple and an Honorary Fellow of Mansfield College, Oxford. ... (much more at webpage)

Biography of Christof Heyns (http://web.up.ac.za/default.asp?ipkCategoryID=16621&subid=16621&ipklookid=10), Special Rapporteur of the United Nations on extrajudicial, summary or arbitrary executions (at Univ. of Pretoria):


Christof Heyns holds the degrees MA LLB University of Pretoria; LLM Yale Law School; and PhD University of the Witwatersrand. He is Professor of Human Rights Law and Co-director of the Institute for International and Comparative Law in Africa at the University of Pretoria. In August 2010 he was appointed as United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions. He is an adjunct professor at the Washington College of Law of the American University in Washington DC, USA, and a Visiting Fellow at Kellog College at Oxford University, UK, where he has been teaching in the masters’ programme since 2005. ... (much more at webpage)

Regards

Mike

Polarbear1605
10-29-2012, 11:46 PM
I just finished reading the Ben Emmerson attachment…and it is a bit too righteous for my taste. First: Thanks to JMM99 for the two above posts. Second; a disclaimer; I am a retired military guy and ain’t no lawyer (no offense there JMM99). Like JMM99 I have some issues with that word “mandate” that Mr Emmerson seems to quick draw from his two holster gun belt.

As a military guy, Mr Emmerson also annoys me greatly because he quick draws another term…i.e “rule of law”. It annoys me because I see and hear our own (US) general officers draw, fire and then aim that term whenever they want to invoke an “all bark and no bite” conversation about war, COIN and strategy. Having said that indulge me, as I ask some questions.

Mr E. speaks of the “Rule of Law”… whose’s? US ROL? UK’s? Pakistan? international human rights ROL. And which one of these sets of ROL applies to non-state terrorist operating outside each jurisdiction?? On 9/11 the US had to make a decision between the ROL or the LOW. LOW always seemed the right choice to me.

Is international human rights that Mr E represents a ROL? Or “The drafters almost certainly believed that they were stating general principles, not laws that would be enforced by national courts...I can affirm that the administration I represented considered it primarily a diplomatic weapon (http://www.icai-online.org/xp_resources/the_pitfalls_of_uj.pdf)”. IRL is the embodiment of “War is simply the continuation of political intercourse with the addition of other means”. In other words it is not law; it’s politics.

He mentioned the 474 civilians killed in Pakistan by drone strikes (including 176 children) but make no mention of the Afghanistan civilian casualties due to enemy (Taliban) activity?... it is in the thousands and been rising 30% per year since 2006. Why start with drone strikes Mr E. when so many more are the victims of enemy activity?

Mr E mentions a Pakistan citizen from Northern Waziristan receiving a judicial review from the High Court in London. How does a Pakistani from North Waziristan get a judicial claim for a drone attack through the ROL process all the way to London? Who is helping him?

Where is the argument for “self-defense Mr E? Not only is self-defense a universal principle but also it goes back as far as St Thomas Aquinas. As a county and as an individual we have a right to self-defense especially when a set of non-state extremists opening declare total war on all US citizens and prove it by collapsing two skyscrapers and killing nearly 3000 innocent civilians.

Why introduce the torture issue as an absolute when it is actually a debate because no one seems to have the political courage to define it? You know better…my opinion is here (http://council.smallwarsjournal.com/showthread.php?p=141433#post141433).

I suspect that Mr E. is more politics and less counter terrorism LOW for a number of reasons. He is trying to gather political support at the US expense and he is playing into the lawfare campaign of terrorist.

I have to think that Mr E. has it all wrong.

jmm99
10-30-2012, 04:38 AM
except to segue into what he really wants to say. :)

Anyhow, I'm now a Retired Gentleman (a ripoff from Victor McLaughlin in "She Wore a Yellow Ribbon") - not a lawyer ...

But, in answer to your question - Mr Emmerson will use any law he can argue (1) to defend his clients; and (2) to paint the USG as war criminals. What is ironic is that the USG is footing a good percentage of Mr Emmerson's "mandate" to make that happen. :(




Not being entirely stupid, my Mich license is still in effect (which also applies to the Federal Courts, including SCOTUS); but other than posts here, I've kept away from the rest of law for the past year.

Instead, I been working on my house (a Karate Kid type "wax on, wax off" approach to reach some semblence of physical condition), and some selected military readings (e.g., the BEF in WWI, including many personal memoirs from that conflict).

Regards

Mike

jmm99
11-02-2012, 01:55 AM
Strikes (whether drone or other air, or boots on the ground direct actions) can be divided into two catagories, depending on what is known and unknown re: the target.

A "personality strike" is one targeting an individual whose identity and past and current activities are known. When the strike is conducted, those making the decision to engage are primarily concerned with (1) the degree of confidence that the particular individual is present; and (2) the extent of collateral damage that can be tolerated. UBL and al-Awlaki, for example.

A "signature strike" is one targeting an individual (or individuals) whose precise identity is (precise identities are) unknown or uncertain. Instead, the individual or individuals must match a pre-identified “signature” (a behavior set) that the targeter links to terrorist activity or association.

I expect we'll be hearing much more about "signature strikes".

The signature strike matrix below is strictly hypothetical (presented as a quote only to set it off):


A Signature Strike Matrix

(1) Individual(s) Planning Attacks

(2) Individual(s) Transporting Weapons (not incl. legal weapons ?)

(3) Individual(s) Handling Explosives

(4) Individual(s) in Terrorist Compound

(5) Individual(s) in Terrorist Training Camp

(6) Military-Age Male(s) in Known Terrorist Activity Area

(7) Individual(s) Consorting with Known Militants

(8) Armed Man(Men) Traveling (on foot)(in vehicles) in Terrorist-Controlled Area

(9) Individual(s) in Suspicious Camp located in Terrorist-Controlled Area

(10) Group(s) of Armed Men Traveling Toward Conflict Area

(11) Individual(s) Operating a Terrorist Training Camp

(12) Individual(s) Training to Join a Terrorist Group

(13) Individual(s) Facilitating a Terrorist Group

(14) Individual(s) in Terrorist Rest Facilities (Safe Houses)

Discuss, if you wish, the plusses and minuses of the matrix as written

- as well as

(1) the test you would use to include a factor (e.g., "more likely than not", "reasonable certainty", "high degree of confidence", etc., etc.);

(2) whether you would include or exclude each factor separately without considering the other factors (strict "must stand on its own" test); or would you aggregate all factors supported by some evidence, even where each such factor would not "stand on its own" ("conditional probability"); and

(3) whether other factors should be added to the matrix.

This doesn't require legalese.

Regards

Mike

jmm99
11-06-2012, 06:39 PM
1. President Obama will target Al Qaeda operatives with drones and special forces. President Romney will target Al Qaeda operatives with drones and special forces.

2. President Obama will not close Guantanamo Bay and will follow a policy of indefinite detention. President Romney will not close Guantanamo Bay and will follow a policy of indefinite detention.

3. President Obama will use a combination of federal courts and military commissions to try suspected terrorists. President Romney will use a combination of federal courts and military commissions to try suspected terrorists.

4. President Obama will work to update the Authorization of the Use of Military Force (AUMF) and institutionalize its authorities. President Romney will work to update the Authorization of the Use of Military Force (AUMF) and institutionalize its authorities.

5. President Obama will not reinstate the Bush administration’s interrogation policies; but neither will he create any mechanism of accountability for those responsible for the Bush-era interrogations. President Romney will not reinstate the Bush administration’s interrogation policies; but neither will he create any mechanism of accountability for those responsible for the Bush-era interrogations.

6. President Obama will use warrantless wiretapping. President Romney will use warrantless wiretapping.

7. The "international legal community" will not approve of President Obama's policies; and the NY Times and Wash Post Editorial Boards will wring their hands about the lack of "international support". The "international legal community" will not approve of President Romney's policies; and the NY Times and Wash Post Editorial Boards will wring their hands about the lack of "international support".

HT to Ben Wittes (http://www.lawfareblog.com/2012/11/thoughts-on-election-day-towards-consensus-and-institutional-settlement/) for the basic concept.

Regards

Mike

jmm99
11-17-2012, 01:23 AM
The initial decision of the ICTY condemning Gotovina and Markac to 24 years and 18 years imprisonment (they have been in detention since 2005) was reported here at posts 117 (http://council.smallwarsjournal.com/showpost.php?p=131633&postcount=117), 118 (http://council.smallwarsjournal.com/showpost.php?p=131635&postcount=118) & 119 (http://council.smallwarsjournal.com/showpost.php?p=131636&postcount=119). The Amicus Brief (by US-UK military law experts) arguing reversal of the convictions is reported here at posts 120 (http://council.smallwarsjournal.com/showpost.php?p=131708&postcount=120) & 121 (http://council.smallwarsjournal.com/showpost.php?p=131709&postcount=121).

Reuters, Hague appeal tribunal frees jailed Croatian officers (http://www.chicagotribune.com/news/sns-rt-us-warcrimes-gotovina-acquittalbre8af0n0-20121116,0,4909304,full.story):


Svebor Kranjc
Reuters
9:39 a.m. CST, November 16, 2012

THE HAGUE (Reuters) - The most senior Croatian military officer convicted of war crimes during the Balkan wars of the 1990s was freed on appeal on Friday in a decision that will strain already fraught relations between Croatia and its old enemy Serbia.

General Ante Gotovina was cleared by appeal judges at the U.N. war crimes tribunal after being convicted of targeting hospitals and other civilian sites during a military operation to retake Croatia's Krajina region from rebel Serbs.

Gotovina, hailed as a hero at home but reviled in neighboring Serbia, was freed along with Croatian police commander Mladen Markac. ... (more in story)

Since it was set up in 1993, the tribunal has indicted 161 people for crimes committed during the Yugoslav wars, of whom only 14 have been acquitted.

ICTY, The Hague, 16 November 2012: Appeals Judgement Summary for Ante Gotovina and Mladen Markač (http://www.icty.org/x/cases/gotovina/acjug/en/121116_summary.pdf):


...
The Appeals Chamber recalls that the Trial Chamber concluded that the Appellants were members of a JCE whose common purpose was to permanently remove Serb civilians from the Krajina by force or threat of force. The Trial Chamber’s conclusion that a JCE existed was based on its overall assessment of several mutually-reinforcing findings. The Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that the touchstone of the Trial Chamber’s analysis concerning the existence of a JCE was its conclusion that unlawful artillery attacks targeted civilians and civilian objects in the Four Towns, and that these unlawful attacks caused the deportation of large numbers of civilians from the Krajina region.

The Trial Chamber’s finding that the artillery attacks on the Four Towns were unlawful was heavily premised on its analysis of individual impact sites within the Four Towns, which I will refer to as the “Impact Analysis”. This Impact Analysis was in turn based on the Trial Chamber’s finding a 200 metre range of error for artillery projectiles fired at the Four Towns, which I will refer to as the “200 Metre Standard”. Based on this range of error, the Trial Chamber found that all impact sites located more than 200 metres from a target it deemed legitimate served as evidence of an unlawful artillery attack. In identifying legitimate targets, the Trial Chamber took into account, in part, its finding that the HV could not identify targets of opportunity, such as moving police or military vehicles, in the Four Towns.

The Appeals Chamber unanimously holds that the Trial Chamber erred in deriving the 200 Metre Standard. The Trial Judgement contains no indication that any evidence considered by the Trial Chamber suggested a 200 metre margin of error, and it is devoid of any specific reasoning as to how the Trial Chamber derived this margin of error. The Trial Chamber considered evidence from expert witnesses who testified as to factors, such as wind speed and air temperature, that could cause variations in the accuracy of the weapons used by the HV against the Four Towns, and the Trial Chamber explicitly noted that it had not received sufficient evidence to make findings about these factors with respect to each of the Four Towns. In its Impact Analysis, however, the Trial Chamber applied the 200 Metre Standard uniformly to all impact sites in each of the Four Towns.

In these circumstances, the Appeals Chamber is unanimous in finding that the Trial Chamber erred in adopting a margin of error that was not linked to the evidence it received.

With respect to targets of opportunity in the Four Towns, the Appeals Chamber holds that the Trial Chamber did not err in determining that the HV had no ability to strike targets of opportunity in the towns of Benkovac, Gračac, and Obrovac. However, the Appeals Chamber notes that the Trial Chamber was presented with, and did not clearly discount, evidence of targets of opportunity in the town of Knin. In this context, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, holds that the Trial Chamber erred in concluding that attacks on Knin were not aimed at targets of opportunity.

The Appeals Chamber, Judge Agius and Judge Pocar dissenting, recalls that, while the Trial Chamber considered a number of factors in assessing whether particular shells were aimed at lawful military targets, the distance between a given impact site and the nearest identified artillery target was the cornerstone and organising principle of the Trial Chamber’s Impact Analysis. The Appeals Chamber, Judge Agius and Judge Pocar dissenting, holds that the Trial Chamber’s errors with respect to the 200 Metre Standard and targets of opportunity are sufficiently serious that the conclusions of the Impact Analysis cannot be sustained. Although the Trial Chamber considered additional evidence in finding that the attacks on the Four Towns were unlawful, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, holds that, absent the Impact Analysis, this remaining evidence is insufficient to support a finding that the artillery attacks on the Four Towns were unlawful.

In view of the foregoing, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, finds that no reasonable trial chamber could conclude beyond reasonable doubt that the Four Towns were subject to unlawful artillery attacks. Accordingly, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, grants Mr. Gotovina’s First Ground of Appeal, in part, and Mr. Markač’s Second Ground of Appeal, in part, and reverses the Trial Chamber’s finding that the artillery attacks on the Four Towns were unlawful.

Thus, the major point made by the US-UK Amicus Brief was sustained by the appellate court and the defendants released.

Regards

Mike

jmm99
01-20-2013, 07:08 AM
HT to Ken Anderson for, Readings: Autonomous Weapon Systems and Their Regulation (http://www.lawfareblog.com/2012/12/readings-autonomous-weapon-systems-and-their-regulation/) (December 11, 2012), and Readings: Jeffrey S. Thurnher on Law of Armed Conflict Applied to Autonomous Weapon Systems (http://www.lawfareblog.com/2013/01/readings-jeffrey-s-thurnher-on-law-of-armed-conflict-applied-to-autonomous-weapon-systems/) (January 19, 2013).

The two articles by MAJ Jeffrey S. Thurnher (an Army JAG officer on the faculty at the Naval War College), The Law That Applies to Autonomous Weapon Systems (http://www.asil.org/pdfs/insights/insight130118.pdf) (ASIL Insights, January 18, 2013, Volume 17, Issue 4) (6 pp.), and No One at the Controls: Legal Implications of Fully Autonomous Targeting (http://www.ndu.edu/press/lib/pdf/jfq-67/JFQ-67_77-84_Thurnher.pdf) (Joint Force Quarterly, National Defense University, Washington DC, Vol. 67, No. 4, Oct. 2012) (8 pp.), provide easy entry into complicated subject matter.

From Thurnher's first article, the legal BLUF (snips from several pages):


The Law: How to Determine the Lawfulness of a Weapon System

It is incontrovertible that the law of armed conflict applies to autonomous weapon systems. When determining the overall lawfulness of a weapon system, there are two distinct aspects of the law that need to be analyzed: weapons law and targeting law. ...
...
When analyzing whether the weapon system itself is lawful, there are two distinct rules that apply. The first rule is that the weapon system must not be indiscriminate by its very nature. A weapon is deemed indiscriminate by nature if it cannot be aimed at a specific target and would be as likely to strike civilians as combatants. ...
...
The second rule, codified in Article 35(2) of Additional Protocol I, is that a weapon system cannot cause unnecessary suffering or superfluous injury. ...
...
Assuming the particular weapon satisfies the above weapons law rules, the weapon must still be examined under targeting law to determine whether the actual use of the weapon might be prohibited in some manner. To conduct this analysis, three core law of armed conflict requirements are particularly salient: distinction, proportionality, and precautions in the attack. ...
...
The first requirement is distinction. Distinction is the most fundamental principle of the law of armed conflict. A customary law principle, distinction obliges a combatant to distinguish between combatants and civilians, as well as between military and civilian objects. ...
...
The second requirement, proportionality, requires combatants to examine whether the expected collateral damage from an attack would be excessive in relation to the anticipated military gain. ...
...
The third and final core requirement is the obligation to take feasible precautions in the attack. ... With all of the required precautions in attack, there is inherently a value judgment about whether all feasible steps have been taken. How autonomous systems will reasonably make this value judgment may prove to be one of the biggest challenges in terms of compliance. Ultimately if a country intends to use an autonomous weapon system on a battlefield, it must ensure that the system can adequately take these feasible precautions.

Thus, Thurnher is satisfied that a particular AWS will or will not pass muster based on existing law.

His second article is concerned with the operational commander's responsibilities in controlling the AWS - here, lethal autonomous robots (LARs). He recommends four basics:


First, operational commanders need to ensure that all LARs have the proper rules of engagement (ROE), tactical directives, and other national caveats embedded in their algorithms. Moreover, commanders must ensure that any revisions to the ROE or directives are rapidly inputted into and incorporated by the LARs. Unmanned underwater systems, particularly those without regular communications with the headquarters, may prove to be the most challenged in this arena. For LARs that cannot make such adjustments while deployed, commanders need to ensure those systems can be recalled and then reprogrammed quickly.

Second, commanders should limit when and where LARs are employed to avoid potential proportionality issues. Geographically, LARs are best suited to engage targets in areas where the likelihood of collateral damage is reduced, such as underwater or in an area like the demilitarized zone in Korea. Regardless of geography, LARs might be appropriate when the target is one of particularly high value. In such situations, a commander may have fewer proportionality concerns or might at least be able to quantify the amount of acceptable collateral damage. Utilizing LARs only in specific geographic environments or when pursuing high value targets would alleviate many of the critics’ proportionality concerns and best protect operational commanders.

Third, operational commanders should carefully examine the type of conflicts where they might deploy LARs. They would be wise to use LARs predominantly during high-intensity situations where the ROE are status-based, meaning there is a declared hostile force to attack. Those declared hostile forces would then be more easily recognizable, eligible targets for LARs. LARs are less appropriate in counterinsurgency or irregular warfare situations, where “the blurring of the lines between civilian and military is a commonplace occurrence.” Similarly, commanders may also want to restrict LARs in emergency situations where the proposed target is not already on a preset list of targets. In such irregular fights and in emergency situations, the legal authority to engage with lethal force is more often conduct-based and thus contingent upon an enemy demonstrating a hostile intent or engaging in a hostile act. Given the higher degree of difficulty in identifying targets and the greater distinction concerns, the best approach may be to avoid using LARs under these circumstances. Prudent commanders should only use LARs in appropriate situations and recognize when it is best to resort to manned systems instead.

Lastly, LARs should be required to have some version of a human override, sometimes referred to as software or ethical “brakes.” The systems should be able to be shut down or recalled immediately upon a commander’s order. Commanders should also establish triggers for when LARs must seek human guidance before engaging a target. For instance, when a LARs system identifies expected collateral damage greater than a predetermined acceptable limit, it could be forced to seek guidance from the command before engaging that target. Commanders would need to establish protocols and support structures to facilitate quick decisionmaking for these potential targets. In these circumstances, human decisionmakers need a high degree of clarity about what situation the robot is facing. This oversight would not be effective if the human operator were merely a rubber stamp to approve an engagement. With prudent additional control measures such as these, commanders can more safely employ LARs on the battlefield and better protect themselves and their commands.

The AWS CO has to be soundly based in the technologies of the system, and also in the legal requirements governing use of the system.

The DoD has provided a definitive set of principles applicable to these weapon systems: Ashton B. Carter, Deputy Secretary of Defense, “Autonomy in Weapons Systems (http://www.dtic.mil/whs/directives/corres/pdf/300009p.pdf),” Department of Defense Directive, Number 3000.09, November 21, 2012.

The other side of the debate ranges from the more emotional - Noel Sharkey, “America's Mindless Killer Robots Must Be Stopped: The rational approach to the inhumanity of automating death by machines beyond the control of human handlers is to outlaw it (http://www.guardian.co.uk/commentisfree/2012/dec/03/mindless-killer-robots),” Guardian, December 3, 2012 - to the very scholarly intended for academic publication - Human Rights Watch and Harvard Law School International Human Rights Clinic, “Losing Humanity: The Case Against Killer Robots (http://www.hrw.org/sites/default/files/reports/arms1112ForUpload_0_0.pdf),” November 19, 2012. Their bottom line is the same - an absolute ban before they breed and multiply.

We have three responses to the Human Rights Watch and Harvard Law School International Human Rights Clinic report.

Michael N. Schmitt, International Law Department, US Naval War College, “Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2184826),” SSRN Working Paper, Draft of December 4, 2012.

William Marra and Sonia McNeil, “Understanding “The Loop’: Regulating the Next Generation of War Machines (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2043131),” 36 Harvard Journal of Law and Public Policy 3 (2013), Lawfare Research Paper Series 1-2012.

Kenneth Anderson and Matthew Waxman, “Law and Ethics for Robot Soldiers,” Policy Review, December-January 2012-13 (final published version at Policy Review here (http://www.hoover.org/publications/policy-review/article/135336), and working draft with footnotes at SSRN here (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2046375)).

Finally, for those wishing to get down into the legal weeds with M-A Lagrange and JMM99, see this SWC thread from late 2011 and early 2012, New technologies and war legislation: a progress? (http://council.smallwarsjournal.com/showthread.php?t=14108) (a conversation started by Marc-Andre, which deals primarily with Geneva's view toward new weapons technologies).

Regards

Mike

jmm99
01-22-2013, 06:10 AM
Late last year, the Washington Post broke a series of stories dealing with drones and targeted killings, including Plan for hunting terrorists signals U.S. intends to keep adding names to kill lists (http://www.washingtonpost.com/world/national-security/plan-for-hunting-terrorists-signals-us-intends-to-keep-adding-names-to-kill-lists/2012/10/23/4789b2ae-18b3-11e2-a55c-39408fbe6a4b_print.html) (by Greg Miller, 23 Oct 2012):



Over the past two years, the Obama administration has been secretly developing a new blueprint for pursuing terrorists, a next-generation targeting list called the “disposition matrix.”

The matrix contains the names of terrorism suspects arrayed against an accounting of the resources being marshaled to track them down, including sealed indictments and clandestine operations. U.S. officials said the database is designed to go beyond existing kill lists, mapping plans for the “disposition” of suspects beyond the reach of American drones.

Although the matrix is a work in progress, the effort to create it reflects a reality setting in among the nation’s counterterrorism ranks: The United States’ conventional wars are winding down, but the government expects to continue adding names to kill or capture lists for years. ... (more in story)

Bobby Chesney's comments on this story are here, Kill Lists, the Disposition Matrix, and the Permanent War: Thoughts on the Post Article (http://www.lawfareblog.com/2012/10/kill-lists-the-disposition-matrix-and-the-permanent-war-thoughts-on-the-post-article/) (24 Oct 2012).

Last week, WP added to the stew with CIA drone strikes will get pass in counterterrorism ‘playbook,’ officials say (http://www.washingtonpost.com/world/national-security/cia-drone-strikes-will-get-pass-in-counterterrorism-playbook-officials-say/2013/01/19/ca169a20-618d-11e2-9940-6fc488f3fecd_print.html) (by Greg Miller, Ellen Nakashima and Karen DeYoung, 19 Jan 2013):


The Obama administration is nearing completion of a detailed counterterrorism manual that is designed to establish clear rules for targeted-killing operations but leaves open a major exemption for the CIA’s campaign of drone strikes in Pakistan, U.S. officials said.

The carve-out would allow the CIA to continue pounding al-Qaeda and Taliban targets for a year or more before the agency is forced to comply with more stringent rules spelled out in a classified document that officials have described as a counterterrorism “playbook.”

The document, which is expected to be submitted to President Obama for final approval within weeks, marks the culmination of a year-long effort by the White House to codify its counterterrorism policies and create a guide for lethal operations through Obama’s second term. ... (more in story)

Bobby Chesney's comments on this story are here, Lethal Force Beyond the Battlefield: The Post’s “Playbook” Article (http://www.lawfareblog.com/2013/01/institutionalizing-lethal-force-beyond-the-battlefield/) (21 Jan 2013):


What does this portend for the use of armed drones going forward? It seems to me that this is yet another piece of evidence suggesting that the US government will continue to assert authority to use lethal force for counterterrorism purposes in at least some situations, outside the context of conventional conflict. Not that this is a big surprise. ... (more in article)

Barring an unforeseen Damascus moment, all the evidence suggests that US drone strikes will continue under a war paradigm - probably a "refined" paradigm, but still a war paradigm which will largely remain classified. See, U.S. drone strikes in Pakistan on rise for 2013 (http://www.washingtonpost.com/world/national-security/us-drone-strikes-in-pakistan-on-rise-for-2013/2013/01/10/d0a204a0-5b58-11e2-9fa9-5fbdc9530eb9_print.html) (by Greg Miller, 10 Jan 2013):


The CIA has opened the year with a flurry of drone strikes in Pakistan, pounding Taliban targets along the country’s tribal belt at a time when the Obama administration is preparing to disclose its plans for pulling most U.S. forces out of neighboring Afghanistan.

A strike Thursday in North Waziristan was the seventh in 10 days, marking a major escalation in the pace of attacks. Drone attacks had slipped in frequency to fewer than one per week last year.

Current and former U.S. intelligence officials attributed the increased tempo to a sense of urgency surrounding expectations that President Obama will soon order a drawdown that could leave Afghanistan with fewer than 6,000 U.S. troops after 2014. The strikes are seen as a way to weaken adversaries of the Afghan government before the withdrawal and serve notice that the United States will still be able to launch attacks. ... (more in story)

This continuation of the war paradigm (over what is now four presidential terms !) will, no doubt, discomfort any number of US "coalition partners", as exemplified by this story from Deutsche Welle last week, Should drone strikes be considered lawful? (http://www.dw.de/should-drone-strikes-be-considered-lawful/a-16533537) (18 Jan 2013):


Those opposed to drones, however, compare targeted killing to extrajudicial and state-sanctioned murder. They challenge the notion that targeted killing takes place in the context of war; the US and Pakistan, for example, are not at war with each other.

That is a crucial point in international law. In the case of war, the victims are combatants, the killing of whom can be justified under laws of war.

But if aggressors and victims are not at war, targeted killing is, technically speaking, illegal. That is, of course, unless the person or people killed posed an immediate danger to others - like a fatal shot fired by police at a hostage taker to save the lives of the hostages. ... (more in story)

The BLUF of the comments by DW's expert (Armin Krishnan) is that present US drone strike policy is illegal under the German view of law (domestic and international). See also DW, The legal gray zone of drone attacks (http://www.dw.de/the-legal-gray-zone-of-drone-attacks/a-16118788) (23 Jul 2012):


A US drone attack claimed its first German victim, a suspected Muslim fundamentalist, in 2010. A German federal investigation into the incident has reignited debate about the use of unmanned aircraft.

Shortly before his death, a man named in reports as Bunyamin E. travelled to the Pakistani region of North Waziristan, an Islamist stronghold. On October 4, 2010, a missile strike by a US drone struck the suspected radical Islamist along with a number of companions.
...
Federal German legal authorities are now investigating the controversial tactic after a nearly two-year long process of determining whether such an investigation is within the scope of their office. The US is operating in a legal gray zone and may have violated international law. Jochen Hippler of the Duisburg Institute for Development and Peace sees the drone attacks in Pakistan as especially problematic since they go against the will of the Pakistani government - at least officially.

"On the one hand, we have the problem that military attacks against a country with which one is not at war violate international law," the expert told DW. He believes a further problem lies in the killing of people merely suspected of being Islamic extremists: "In the US and in Germany, people have argued with good reason that the drone attacks represent capital punishment for people who have been accused of a crime without being given a trial." ... (much more in story)

Of course, the viewpoints expressed by DW's experts are based on application of a peace paradigm.

The situation (divergent views between the US and many of its NATO partners) reminds one of the pre- and post-WWI strategical disconnects analysed by Andre Beaufre (http://www.amazon.com/introduction-strategy-particular-reference-economics/dp/B0007DOEDE). Pre-WWI, the lines were rather clearly drawn between the political struggle (the peace paradigm) and the military struggle (the war paradigm). After WWI, and especially after WWII with the advent of the Cold War and Nuclear Armament, the political and military struggles became mixed - as Gen. J. L. Collins titled it - "War in Peacetime (http://www.amazon.com/War-Peacetime-History-Lessons-Korea/dp/B0006BYYSM)".

Following Beaufre's logic, it seems doubtful that we can return to the simplicity of the 19th century where Peace was peace, War was war, and ne'er the twain shall meet. We will most likely continue to see situations which do not really fit either a pure peace paradigm or a pure war paradigm. Those situations will create both strategic and legal problems.

Regards

Mike

jmm99
02-05-2013, 06:39 AM
Those who belong to armed forces or to armed groups may be attacked at any time.

Now, where did that come from ? I'll tell you later.

Several days ago, the NY Times ran a story, Drone Strike Prompts Suit, Raising Fears for U.S. Allies (http://www.nytimes.com/2013/01/31/world/drone-strike-lawsuit-raises-concerns-on-intelligence-sharing.html?_r=1&) (by Ravi Somaiya, January 30, 2013).

I held off on posting it (and two related pieces by John Bellinger) to see what might happen. The story obviously ties in with my post above dealing with the "discomfort" of European "coalition partners" with US drone strikes:


The death of Malik Daud Khan, a Pakistani tribal elder, in a C.I.A. drone strike might have remained widely unremarked upon, lost amid thousands of others analysts have tallied in the American drone campaign, had not the British courts been brought into it.

The drone strike, which killed Mr. Khan and dozens of others at a tribal council meeting in North Waziristan in 2011, spawned a lawsuit that accuses British officials of becoming “secondary parties to murder” by passing intelligence to American officials that was later used in drone strikes.
...
In interviews, current and former British government and intelligence officials, some of whom worked closely with the United States after the drone campaign’s inception in 2004, said Britain does provide intelligence to the United States that is almost certainly used to target strikes. Many in Britain’s intelligence community, said one person with detailed knowledge of internal discussions, are now distinctly worried they may face prosecution.

British and other EU officials may now have to face the consequences of their countries having had reduced threats from terrs, all without being directly involved in the US drone strikes:


Few argue against the notion that European nations, many of which have been attacked by terrorists, have benefited from the drone killing, however controversial, of many of the most hardened Islamic extremist leaders.

The threat level for international terrorism in Britain was reduced to “substantial,” the middle of five ratings, in July 2011. The switch was due largely to the “removal of operational planners” through drone strikes in Pakistan’s tribal areas and Yemen, a former senior intelligence official said. Another former official put it more simply, saying the “strikes have decimated the Al Qaeda senior leadership, and we didn’t have to get directly involved.”
...
For the government’s part, one senior official said, it “would just like the issue to go away.”

John Bellinger also wishes the problem to go away. In a Lawfare piece, New York Times on Noor Khan Lawsuit (http://www.lawfareblog.com/2013/01/new-york-times-on-noor-khan-lawsuit/) (by John Bellinger, January 31, 2013):


The New York Times has this long article about the Noor Khan lawsuit in Britain, in which the son of a man killed in a drone strike in Pakistan has sued the British Foreign Secretary for information about British intellligence support to the US. The article, entitled “Drone Strike Prompts Law Suit, Raising Fears for U.S. Allies,” notes that European governments are growing increasingly uncomfortable about sharing intelligence with the US that might be used in drone strikes: “Many in Brtian’s intelligence community…are now distinctly worried they may face prosecution.”
...
I have been warning for several years about the international legal risks posed by the Obama Administration’s heavy reliance on drone strikes, including my Post op-ed in October 2011 entitled “Will Drone Strikes Become Obama’s Guantanamo? (http://articles.washingtonpost.com/2011-10-02/opinions/35279231_1_drone-strikes-anwar-al-awlaki-drone-program)”
...
At the time I wrote it, I thought there was perhaps only a 25% chance that Obama’s drone strikes would become as internationally maligned as Guantanamo, given the preference of human rights groups and European governments to avoid criticising the Obama Administration. But over the last eighteen months, I have seen a crescendo in international criticism, resulting in lawsuits in the US, Britain, and Pakistan, and a potential decrease in intelligence cooperation. This has echoes of the rapid decline in European governmental support for US counterterrorism efforts after 9-11 as national parliaments pressed their governments to distance themselves from unpopular US policies. I would not be surprised if, in the next year, war crimes charges are brought against senior Obama officials in a European country with a universal jurisdiction law.

The bottom line, as I read Mr Bellinger, is that the Obama administration should make nice with European countries by adapting to their view of "international humanitarian law" (aka their version of the laws of armed conflict or laws of war); from his 2011 article linked in prior quote:


Even if Obama administration officials are satisfied that drone strikes comply with domestic and international law, they would still be wise to try to build a broader international consensus. The administration should provide more information about the strict limits it applies to targeting and about who has been targeted. One of the mistakes the Bush administration made in its first term was adopting novel counterterrorism policies without attempting to explain and secure international support for them.

Well, the Obama administration has, in effect, said "stuff it - we'll stick with our domestic laws and the laws of armed conflict as we see them." Earlier tonite from NBC, EXCLUSIVE: Justice Department memo reveals legal case for drone strikes on Americans (http://openchannel.nbcnews.com/_news/2013/02/04/16843014-exclusive-justice-department-memo-reveals-legal-case-for-drone-strikes-on-americans?lite&preview=true) (by Michael Isikoff):


A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” -- even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.

The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.
...
But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”
...
Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly -- or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.

The contents of the memo should be no surprise to readers of this thread, the "The Rules - Detaining HVTs and Others (http://council.smallwarsjournal.com/showthread.php?t=14691)" thread, and the "War Crimes (http://council.smallwarsjournal.com/showthread.php?t=4921)" thread, since it employs much the same legal arguments used to justify indefinite detention. Those arguments have already been rejected by the EU countries.

See, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force (http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf).”

My lede quote is from the memo. The memo cites to the 1987 ICRC Commentary on AP II, 4789. The same legal point was made by the Obama DoJ in 2009 (expanding the arguments previously made by the Bush II DoJ), as reported in this post, continuation of DoJ memo ... (http://council.smallwarsjournal.com/showpost.php?p=68148&postcount=226):

My message then (re: legal arguments for detention) and now (re: legal arguments for targeted killings) to the Obama DoJ, was and is: Good job, guys and gals: I will castigate when you move off the "Straight Path".

And, as to that unnamed European country(ies), with universal jurisdiction, now is your opportunity to put up by bringing war crimes charges against senior Obama officials, or shut up.

Regards

Mike

davidbfpo
02-05-2013, 10:53 AM
Mike,

My understanding of the law of armed conflict is tiny, but caveat aside now.

There are several laws regarding armed conflict which appear to have universal jurisdiction, hence the arrest and conviction of an Afghan warlord, an asylum claimant in the UK for torture IIRC and recently a Nepalese Army officer for torture - whilst visiting on leave from a UN mission.

Do such laws have international jurisdiction themselves, or is it the result of incorporation into national law? I think it is the later for the UK.

Several activists have called for the UK authorities to take legal action against suspected sinners, most notably Peter Tatchell who called for Robert Mugabe to be arrested, indeed tried himself to make a "citizens arrest" and was cast aside by Mugabe's own bodyguards.

A few years ago a private application for a summons or a warrant was made to enable the arrest of an Israeli military officer, due to make a PR visit to the UK and the police declined to make an arrest when he landed @ Heathrow. The Director of Public Prosecutions (DPP, our national prosecutor for England & Wales), then stepped in, using a hitherto unknown legal power, to take over the case and have the summons / warrant dropped.

Whatever the desires of some activists and lawyers I cannot see the UK authorities asserting a universal jurisdiction or using a national criminal law to launch a prosecution. Yes citing the 'national interest' and 'national security' come to mind, but as with the USA it is remarkable how few, if any prosecutions have been made over national criminal offences in the financial sector. Why does anyone suppose the UK (English & Welsh) prosecution authorities will suddenly become paragons of virtue and brave too?:wry:

Now a civil action here is quite different and that is where the alliance of activists and human rights lawyers are "making hay", nibbling away at the government's arguments. Hence the attempt to enable civil court procedures to have information i.e intelligence material heard by the judge only, without challenge or disclosure to the plaintiff.

carl
02-05-2013, 04:11 PM
Mike:

The part that bothered me in the NBC story is the following quote.


The completeness of the administration’s public accounts of its legal arguments was also sharply criticized last month by U.S. Judge Colleen McMahon in response to a lawsuit brought by the New York Times and the ACLU seeking access to the Justice Department memos on drone strikes targeting Americans under the Freedom of Information Act. McMahon, describing herself as being caught in a “veritable Catch-22,” said she was unable to order the release of the documents given “the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for the conclusion a secret.

To layman she is describing a situation where nobody knows what the law is or why it is and nobody will discuss it.

Polarbear1605
02-05-2013, 07:11 PM
... And, as to that unnamed European country(ies), with universal jurisdiction, now is your opportunity to put up by bringing war crimes charges against senior Obama officials, or shut up.
Regards
Mike

or the current administration should review/pardon criminal cases of US service members (who are currently sitting in Leavenworth) that occurred in combat using the Laws of War vs the Rule of Law... what's good for the goose...:mad:

jmm99
02-05-2013, 11:35 PM
Polarbear1605:

Yup; since we have wound down Iraq and soon will in Astan, a presidential pardon review is called for in all of those cases.

David:


from David:
Do such laws have international jurisdiction themselves, or is it the result of incorporation into national law?

Both. The degree of independent international jurisdiction inherent in the criminal law system, vice incorporation of international jurisdiction via positive domestic law, varies greatly from country to country. As a general rule, the US requires incorporation of international jurisdiction via positive domestic law. The US exceptions allowing independent international jurisdiction are limited and not material here - and, in any event, rest on various self-executing provisions of the US Constitution.


from David:
Now a civil action here is quite different and that is where the alliance of activists and human rights lawyers are "making hay", nibbling away at the government's arguments. Hence the attempt to enable civil court procedures to have information i.e intelligence material heard by the judge only, without challenge or disclosure to the plaintiff.

In specific areas, e.g., civil suits for information, the UK and the US are different. See, Peto & Tyrie, Neither Just nor Secure - The Justice and Security Bill (http://www.cps.org.uk/files/reports/original/130123103140-neitherjustnorsecure.pdf) (2013) for the UK view. And, for other readers to hand clap David, he took time to pass me this reference by PM. :)

The US view is typified by the case mentioned by Carl, who is going to be renamed "Bloodhound". :D

Running our Advanced Search - Keyword(s): classified evidence ; Posts Made By: jmm99 - I just got 50 hits, So, if anyone wants, they are there.

Carl:


from Carl:
To layman she is describing a situation where nobody knows what the law is or why it is and nobody will discuss it.

Colleen McMahon (http://www.fjc.gov/servlet/nGetInfo?jid=2799&cid=999&ctype=na&instate=na) knows exactly what the law is as to (1) drone strikes; (2) as to classified evidence; (3) as to limits on request for information. She also knows exactly what she thinks the law should be. Her dilemma was being caught between the law ruling the case and what law she would like to rule the case.

No one in this international law debate is stupid or ignorant. Almost all (including yours truly) graduated from elite law schools with honors, were law review editors at their schools, and have had some post-law school experience among the political elite (judicial clerkships, international law firms, USG or UN experience, etc.). Some are among the current political elite (e.g., President Obama); some are not (yours truly).

There are two cases, which started in the S.D. of New York (Manhattan), which I decided not to post at the district court level because, at this stage of the game, the appellate decisions are what matter. But since the Bloodhound has sniffed the sausage in the bag, here are some links (from Lawfare).

First, Judge McMahon.

Summary Judgment for the Government in Targeted Killing FOIA Request (http://www.lawfareblog.com/2013/01/summary-judgment-for-the-government-in-targeted-killing-foia-request/) (by Raffaela Wakeman, January 2, 2013).

Judge McMahon's 75-page opinion (http://www.lawfareblog.com/wp-content/uploads/2013/01/Drone-Ruling.pdf).

Second, Judge Forrest.

Katherine B. Forrest (Wiki (http://en.wikipedia.org/wiki/Katherine_B._Forrest))

Federal Judge Enjoins Section 1021 of the FY2012 NDAA (http://www.lawfareblog.com/2012/05/federal-judge-enjoins-section-1021-of-the-fy2012-ndaa/) (by Steve Vladeck, May 16, 2012)


Out today, a 68-page opinion from Judge Katherine Forrest of the U.S. District Court for the Southern District of New York, entering a preliminary injunction barring the federal government from enforcing the substantive detention authority codified by the FY2012 NDAA on the ground that enforcement of the relevant provision (section 1021) might interfere with the plaintiffs’ First and Fifth Amendment rights. There’s a lot here, including the central holding (that the NDAA is not merely a “reaffirmation” of the AUMF), but I haven’t had the chance to read it carefully yet. Suffice it to say, I imagine folks will have more to say about the ruling in Hedges v. Obama over the next few days…

Judge Forrest's 68-page opinion (http://nysd.uscourts.gov/cases/show.php?db=special&id=174).

Judge Forrest Issues Permanent Injunction in Hedges (http://www.lawfareblog.com/2012/09/judge-forrest-issues-permanent-injunction-in-hedges/) (by Benjamin Wittes, September 12, 2012).


I haven’t read it yet, but here it is.

Judge Forrest's 112-page opinion (http://www.lawfareblog.com/wp-content/uploads/2012/09/2012-09-12-permanent-injunction-order.pdf).

This decision has been permanently stayed until the 2nd Circuit Court of Appeals enters its decision. See Wiki - Hedges v Obama (http://en.wikipedia.org/wiki/Hedges_v._Obama). An important case, but I figured on waiting for the 2nd Circuit since the injunction is stayed, despite the eminent list pf plaintiffs. ;)

Hopes this helps, though it's a bit "weedy" in the opinions.

Thank you, all three, for the input.

Regards

Mike

jmm99
02-06-2013, 01:47 AM
In further answer to David and Carl, Judge McMahon's opinion briefly references, but better illustrates, the procedure for handling classified evidence (or, as here, classified information requested).

Attached are two .pdfs, which Bloodhound will scan to make sure I haven't attached the wrong pages. :D

pdf 3-4. The end of p.3 and start of p.4 states the judge has received classified information, which will not be given to the plaintiffs or their attorneys. It will be placed in a classified appendix for review by appellate judges, including the judge's classified opinion on the classified information. The whole package, unclassified and classified, constitutes the full record. The unclassified public opinion is reviewed by the FBI prior to its release (footnote 1 to p.4).

pdf 74-76. Actually appendices. The ACLU's requests (Appendix I) are very extensive. Thus, Appendix I is a key to Appendix II (of a single unclassified sentence). Appendix II (the classified part) could be a large package of all the material documents requested; or, more likely, an index to and summaries of the documents.

The bottom line is that Judge McMahon could be the most informed person on the law and process of drone strikes, outside the White House. ;)

Regards

Mike

PS Carl: you know that I'm just poking fun at myself - sometimes you are just so serious:

http://www.thegoddessblogs.com/wp-content/uploads/2012/07/bloodhound-14.jpg

carl
02-06-2013, 04:18 AM
PS Carl: you know that I'm just poking fun at myself - sometimes you are just so serious:

Boy ain't that the truth. Please give me a swift but soft kick when I need it.

A bloodhound! Tres cool.

jmm99
02-06-2013, 09:22 PM
As we have seen from the DoJ "White Paper", drone strikes involve choosing the law which will control the case. The basic choice is between the "war" (armed conflict) paradigm and the "law enforcement” paradigm, with each paradigm having branching choices of legal subsets. Life is less confusing when the author initially lays out the choices, and then goes to the author's reasoning in selecting the "correct" law. That style can be called "analysis". Another style is to setup a strawman and proceed to demolish it, hopefully (to the author) generating emotions in the reader. The style might be called a form of "advocacy".

HT to Jack Goldsmith at Lawfare for linking two articles which illustrate the two styles.

The first article discusses the basic choices: the "war" (armed conflict) paradigm and the "law enforcement” paradigm - and briefly explains the consequences of each choice, including the Obama administration's choice of the "war" (armed conflict) paradigm and the "law enforcement” paradigm

President Obama Can Do Anything He Wants To Fight Terrorism - That’s the lesson of the leaked drone memo (http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/02/leaked_drone_memo_obama_can_do_whatever_he_wants_t o_fight_terrorism.html) (by Eric Posner, 5 Feb 2013):


So far, the reporting on the leaked white paper from the Justice Department about drone attacks clearly assumes that we are supposed to be outraged by the Obama administration’s legal theories, just as we were supposed to be outraged by the Bush administration’s. And outrage is being dutifully ginned up. But the memo is utterly conventional as legal analysis; its arguments could easily have been predicted. It’s most useful as an opportunity to reflect on how the law has evolved to address the problem of terror.

All you need to know in order to understand the memo is that Obama administration lawyers have enthusiastically endorsed the once-vilified Bush administration decision to classify security operations against al-Qaida as “war” rather than as “law enforcement.” This was not an inevitable decision. Obviously, the use of military force in Afghanistan was a military operation, and to the extent that members of al-Qaida joined Taliban soldiers in defending the Afghan homeland against the U.S. attack, they could be killed on sight and detained without charges, as is permitted by the international laws of war. But the U.S. government could otherwise have regarded al-Qaida as a criminal organization like a street gang or drug cartel. Outside the battlefield in Afghanistan, the government would then have pursued members of al-Qaida with conventional law enforcement measures.

If the administration had taken the law enforcement approach, members of al-Qaida who are American citizens would have had the same rights to due process that are familiar from everyday policing. We would send FBI agents to foreign countries like Yemen after obtaining permission from governments to conduct joint law enforcement operations. Or we would have asked foreign governments to arrest suspected members of al-Qaida and extradite them to the United States. We could not have sent drones to kill them. We would have offered them trials in civilian courts. ...

In the rest of the article, Posner does critique the USG's "war" approach.

IF the law enforcement approach were the only approach to be taken (that is, the drone strikes are taking place outside of an armed conflict), then I would find them illegal. However, they would not be "war crimes" (because they then would be taking place outside of an armed conflict). They would be some form of homicide under the applicable "Rule of Law" - probably premeditated murder, given the degree of planning, deliberation, etc.

I have stated that many times; but I also have stated that individual killing or detention operations can be based either on a war approach or on a law enforcement approach under US law. In short, both choices are generally available to choose between in any given operation.

The second piece is advocacy, and not analysis. It jumps directly to the law enforcement approach, without consideration of the war approach (the actual choice of the Obama administration). It doesn't make any of the arguments that have been made against the war approach. In fact, it sets up a strawman and then proceeds to demolish its own creation.

Drone Strike Out - The Obama administration's drone strike memo is unconstitutional (http://www.newrepublic.com/article/112338/obama-administrations-drone-memo-unconstitutional) (by Jeffrey Rosen, 6 Feb 2013):


The Justice Department white paper released on Monday by NBC News is the public's first direct glimpse at the legal reasoning that the Obama administration relied on in using a drone strike to kill Anwar al-Awlaki, a U.S. citizen living in Yemen. The memo's arguments are troubling on many levels.
Although the Obama administration's brief is directed at the assassination of Americans abroad, the arguments it offers could apply with equal force to the assassination of Americans at home; lawyers for the Bush administration who tried to justify lesser outrages have been pilloried for supporting torture. But perhaps most troubling is the administration’s attempt to redefine the idea of the kind of “imminent threat” that can justify a targeted assassination.

The U.S. Supreme Court has previously held that the police can only use deadly force against fleeing, dangerous suspects when killing the suspect is “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” But, in a vast expansion of this narrow precedent, the Obama administration says that the U.S. is not required “to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future” in order to assassinate U.S. citizens whom the government believes are Al-Qaeda leaders. Instead, the memo argues a “decision maker determining whether an al-Qaeda operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al-Qaeda …. are continually plotting attacks against the United States; that Al-Qaeda would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qaeda plots as they are developing and thus cannot be confident that none is about to occur.”

Mr Rosen is well aware of the major arguments that have been made by his colleagues against the existence of an armed conflict (I don't believe he is either stupid or ignorant):

1. The strikes are made against a non-state group that cannot be an "armed force" subject to the Geneva Conventions.

2. The strikes are made outside of the territorial limits of an "armed conflict" subject to the Geneva Conventions.

3. The strikes are made in a conflict area, but the conflict is of too low intensity to be an "armed conflict" subject to the Geneva Conventions.

4. The strikes are made in a conflict area, but the conflict is of too low continuity to be an "armed conflict" subject to the Geneva Conventions.

5. The strikes are outside of the scope of the AUMF used to justify the strikes; and, outside of the scope of the President's separate powers as CinC.

Rosen elects not to analyze those factors; but simply skips to the law enforcement approach as the only paradigm (which is not the paradigm chosen by the Obama administration !). That's his "right" as an advocate. But then, his piece must be taken for what it is - advocacy intended to make the reader outraged; and for what it lacks - a rationale to take one into his strawman situation.

Of course, the "war paradigm" itself does have its limitations. Of them, distinction is the key factor. When a non-state group lacks the attributes of a regular "armed force", identification of its members as combatants (armed force members who participate in combat), non-combatants (armed force members who have a qualified immunity) and civilians (not armed force members) can only be done by functional tests - comparison of how their participation or non-participation lines up with similar roles played by the participants and non-participants in warfare conducted between regular "armed forces".

Regards

Mike

jmm99
02-26-2013, 04:51 AM
Gregory McNeal is back at Lawfare for a series of guest posts. He was linked here in 2011, Kill or Capture - the McNeal View (http://council.smallwarsjournal.com/showpost.php?p=129285&postcount=111).

McNeal again confronts the practical aspects of direct actions (focusing on drone strikes, but the principles play across the spectrum) in How to Make A Kill List (http://www.lawfareblog.com/2013/02/how-to-make-a-kill-list/) (by Gregory McNeal, February 25, 2013):


... For this round of guest posts I will focus on the kill-list creation process. These posts are based on a massively updated version of the collateral damage estimation paper. That paper is now called “Kill-Lists and Accountability” and will be available in SSRN on March 1st. Just like the earlier version of the paper, it builds on government documents, training documents, military doctrine, reports in newspapers and non-fiction books and field interviews and observations. Please note, much of what will appear in the blog posts are drawn directly from the article linked above, as such I’m not including footnotes or sourcing, they can be found in the article once it’s posted. ...

Here are what seemed to me be the high points, starting with:


CATEGORIES OF TARGETS

Many have already analyzed the potential legal rationales offered by the U.S. government in support of its targeted killing campaigns (the subject of Part I of the paper), therefore let me just offer this summary with regard to categories of targets. There are three basic categories of targets who might find their way onto a kill-list: (1) Targets who fall within the AUMF, and its associated forces interpretations [AUMF Targets], (2) targets who fall within the terms of a covert action finding [Covert Action Targets], and (3) targets provided by allies in a non-international armed conflict in which the U.S. is a participant [Ally Targets; or derisively, “side payment targets”]. ...
...
DEVELOPING NAMES FOR THE LIST

The process of developing names for the list is initially delimited by the categories of individuals who may be targeted. Those limits are established by the law of armed conflict, which prohibits the targeting of civilians except those who are members of an organized armed group or those who are directly participating in hostilities. Because direct participation in hostilities is a fleeting, time bound categorization, the only criteria by which an individual would likely be added to a kill-list would be if they fall into the category “members of an organized armed group.” While seemingly simple, the term “members of an organized armed group” has been the subject of extensive debate. ...

These following three paragraphs are absolutely essential if one is to understand the US position, which is not the same as that held by the ICRC and the EU nations:


First, there are open questions as to what particular groups count as “organized armed groups.” Second, as a matter of law, what members of an organized armed group are targetable? Many in the international community reject the idea that members of an organized armed group are always targetable based merely on their membership in that group. Rather, they believe that for a member of an organized armed group to be always targetable requires that member have a “continuous combat function.” That term as described by the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities (DPH study) refers to those individuals whose “continuous function” within the group “involves the preparation, execution or command of acts or operations amounting to their direct participation in hostilities.”

It is critical to note that the U.S. and many international law experts do not subscribe to the DPH study’s CCF interpretation. They reject it because it creates different standards for regular armed forces - who are always targetable based on their status - and organized armed groups, for whom based on this standard only some of their members would be always targetable based on their status. Under the U.S. approach, all that is needed to target an individual is sufficiently reliable information that the person is a member of the organized armed group (Taliban, al Qaeda, associated forces). This differs from the ICRC interpretation which would require the U.S. to know that person’s function before attacking him.

This is an important and fundamental distinction for any debate about targeted killings. The U.S. claims the authority to target persons who are members of organized armed groups, based merely on their status; in so doing the U.S. is not just considering planners or commanders as potential targets, but all members of enemy groups. This may mean that an outside observer who does not interpret the law as the U.S. does may see the killing of a person who was placed on a kill-list as an unlawful killing that violates IHL as many countries interpret it, whereas the U.S. may see a particular killing as completely lawful. Both parties may be acting in good faith, but merely interpreting the law differently. In light of these differing legal interpretations, it is critical that in any debate about targeted killing, participants clearly specify what law they are applying and what interpretation of that law they are applying to any given factual circumstance.

Ultimately, the process depends on the judgment of the decision makers:


WHO’S WORTH KILLING
....
Inside the bureaucracy, analysts approach the question “Who’s worth killing?” by viewing enemy organizations as systems and social networks. Systems analysis means they will analyze variables such as whether an individual is critical to the group he is a member of, looking at factors such as the individual’s value, ability to be replaced, time it would take to replace that person, and what that person’s contributions are to the enemy organization. Taken together, these concepts all relate to the effect that attacking a target will have on the enemy group’s war-fighting capability. It is important to note that these operative principles mean that an individual may be critical to an organization, despite being a low level individual.

A hypothetical can help illustrate these concepts. Suppose an analyst would like to place a bomb maker on a kill-list, that bomb maker’s criticality will be measured by the four factors outlined above (value, depth, recuperation, capacity). The value of the bomb maker will be determined by analyzing how killing him will impact the group’s ability to conduct operations. The amount the enemy’s operations are disrupted by the particular targeted killing will depend on the depth of the enemy’s bomb-making roster. So, if this bomb maker is one of ten similarly-skilled bomb makers, an analyst might note that this organization is deep on bomb making talent and the disruption in short-run bomb-making capacity will be short lived. However, just because another bomb maker currently on the roster quickly replaces the target, does not mean that the enemy organization hasn’t suffered. The long-term effects on the organization will require an estimate of how long it will take the enemy to regain its functional capability, in this example how long it will take the organization to go from nine bomb makers back to the ten they started with? It may be that bomb makers take a long time to train, or the frequent killing of their kind may deter prospective bomb makers. An analyst making a determination about the criticality of a target will consider all of these factors.

To Be Continued ...

Regards

Mike

jmm99
02-26-2013, 02:39 PM
We return to the next installment, Kill-Lists and Network Analysis (http://www.lawfareblog.com/2013/02/kill-lists-and-network-analysis/) (by Gregory McNeal, February 25, 2013):


In my previous post I discussed how law creates three broad categories of potential targets (AUMF targets, Covert Action targets, and Ally targets). Those broad categories mean that many individuals may be targetable based on their status as members of an organized armed group. Working from these broad legal categories, the U.S. next relies on multiple levels of bureaucratic analysis to sort out the persons worth adding to a kill-list from the universe of potential targets.

The goal is not merely killing people, but to kill those persons whose elimination will have the greatest impact on the enemy organization. I briefly described a systems based approach to targeting that looks at potential targets, their value to enemy organizations, their ability to be replaced, and their contributions to the enemy’s warfighting effort. In this post I dive a bit deeper into the targeting bureaucracy to discuss network based targeting analysis.

So, we move into finding the Great White Whale, often easier said than done in our real-life ocean:


NETWORK BASED ANALYSIS AND PATTERN OF LIFE SURVEILLANCE
...
Networked based analysis looks at terrorist groups as nodes connected by links, and assesses how components of that terrorist network operate together and independently of one another. Those nodes and links, once identified will be targeted with the goal of disrupting and degrading their functionality.

To effectively pursue a network based approach, bureaucrats rely in part on what is known as “pattern of life analysis” which involves connecting the relationships between places and people by tracking their patterns of life. This analysis draws on the inter-relationships among groups “to determine the degree and points of their interdependence.” It assesses how activities are linked and looks to “determine the most effective way to influence or affect the enemy system.”

While the enemy moves from point to point, reconnaissance or surveillance tracks and notes every location and person visited. Connections between the target, the sites they visit, and the persons they interact with are documented, built into a network diagram and further analyzed. Through this process links and nodes in the enemy’s network emerge. The analysis charts the “social, economic and political networks that underpin and support clandestine networks” identifying key-decision makers and those who support or influence them indirectly.

This may mean that analysts will track logistics and money trails, they may identify key facilitators and non-leadership persons of interests and they will exploit human and signals intelligence. They will feed this information into computer systems that help integrate the knowledge and which generate and cross-references thousands of data points to construct a comprehensive picture of the enemy network. “This analysis has the effect of taking a shadowy foe and revealing his physical infrastructure…as a result, the network becomes more visible and vulnerable, thus negating the enemy’s asymmetric advantage of denying a target.”

When does one take the out the Goose Who Is Laying Golden Eggs; or, for that matter, the Local Hen Who is Supplying Breakfast:


NETWORK BASED ANALYSIS AND THE KILLING OF “FOOT SOLDIERS”
...
Viewing targeting in this way demonstrates how seemingly low level individuals such as couriers and other “middle-men” in decentralized networks such as al Qaeda are oftentimes critical to the successful functioning of the enemy organization. ... This means that social ties that appear inactive or weak to a casual observer such as an NGO, human rights worker, journalist, or even a target’s family members may in fact be strong ties within the network. Furthermore, because terrorist networks oftentimes rely on social connections between charismatic leaders to function, disrupting those lines of communication can significantly impact those networks.

For example, Osama Bin Laden’s courier Abu Ahmed al-Kuwaiti was Bin Laden’s sole means of communicating with the rest of al Qaeda. ... Once identified, tracking al-Kuwaiti allowed analysts to determine the links and nodes in Bin Laden’s network. Moreover, if the government had chosen to kill al-Kuwaiti, a mere courier, it would have prevented Bin Laden from leading his organization (desynchronizing the network) until Bin Laden could find a trustworthy replacement. Finding such a replacement would be a difficult task considering that al Kuwaiti lived with Bin Laden, and was his trusted courier for years. Of course, sometimes intelligence gained from continuing to monitor a target is more significant than killing or capturing the target (as was initially the case with al Kuwaiti). This is a point that is [should be] recognized by every expert in targeting.
...
Critics oftentimes accuse the government of not considering the potential intelligence loss associated with killing rather than capturing persons, but that intelligence loss is one that is well known by targeteers. The only issue is that someone deep within the killing process has decided that an operation, when it occurs, is worth the intelligence loss (given the available options).

That issue again boils down to a judgment call (hopefully based on experience and wisdom; though no one's judgment calls can ever be 100%.

At this point, consideration must also be given to both the immediate and long-range fallout effects of the particular strike, including but not limited to the perceptions among external observers. As to the last factor, how much methodology and sources should be disclosed:


Perhaps one of the biggest challenges is that to an external observer, it is not clear what criteria will render an individual or a group an associated force, let alone what would constitute being labeled a node or a link in some networked base analysis. This is a point that is not lost on even the highest level officials in the U.S. government, as Daniel Klaidman has noted:


[President Obama] understood that in the shadow wars, far from conventional battlefields, the United States was operating further out on the margins of the law. Ten years after 9/11, the military was taking the fight to terrorist groups that didn’t exist when Congress granted George Bush authority to go to war against al-Qaeda and the Taliban. Complicated questions about which groups and individuals were covered…were left to the lawyers. Their finely grained distinctions and hair-splitting legal arguments could mean the difference between who would be killed and who would be spared.

Accountability for these “finely grained” legal distinctions is bound up in bureaucratic analysis that is not readily susceptible to external review. It relies on thousands of data points, spread across geographic regions and social relationships making it inherently complex and opaque. Accordingly, the propriety of adding an individual to a kill-list will be bound up in the analyst’s assessment of these targeting factors, and the reliability of the intelligence information underlying the assessment. How well that information is documented, how closely that information is scrutinized, and by whom will be a key factor in assessing whether targeted killings are accountable.

To Be Continued ...

Regards

Mike

jmm99
02-27-2013, 02:05 PM
Kill-List Baseball Cards and the Targeting Paper Trail (http://www.lawfareblog.com/2013/02/kill-list-baseball-cards-and-the-targeting-paper-trail/) (by Gregory McNeal, February 26, 2013).

This serial starts with a mock-up/depiction of what an actual kill-list baseball card looks like. It is not a "real" baseball card and is not based on any classified information. It is a large jpg and is found here (http://www.lawfareblog.com/wp-content/uploads/2013/02/BaseballCardKillListsMcNealDEPICTION.jpeg).

McNeal first considers the data and intelligence that underlies the "baseball card":


TARGET FOLDERS AND THE DISPOSITION MATRIX
...
In current practice, the analytical steps I have described are documented in target folders, those folders are part of the process for creating kill-lists and the information in them is available right up through the execution of a strike. The folders contain target information, such as data about how the target was validated, who approved the target and at what step in the process, along with any identified potential collateral damage concerns associated with the target. Contrary to the claims of critics who worry about stale or out of date intelligence, target folders are continuously updated to reflect the most recent information regarding a target’s status and the compiled data is independently reviewed by personnel not responsible for its collection. The independent review is designed to ensure mistakes do not proliferate throughout the targeting process. Across government, the targeting folders have now been reduced to a database, and the information is now maintained in Electronic Targeting Folders (ETF)’s within that database. ...
...
The ETF’s contain a record of the approvals, changes in intelligence, collateral concerns, anticipated benefits of attacking the target, and other information as it becomes available. That information includes human intelligence reports referencing the target, signals intelligence referencing the target, imagery and floor plans of likely locations of the target, a diagram showing the social and communications links of the target as derived from human and signals intelligence, and previous operations against the target. Also documented are intelligence gaps that will form the basis of additional intelligence requirements. Analysts who identify needs for more information can request additional pieces of information that they believe are needed to complete target development, and those requests will also be documented. ...

The “disposition matrix” has been reported at Lawfare here (http://www.lawfareblog.com/2012/10/kill-lists-the-disposition-matrix-and-the-permanent-war-thoughts-on-the-post-article/); as well as being discussed in a number of posts in this thread.

The process then goes to another judgment call step, which checks on the preliminary decisions to target a specific individual (or perhaps, a defined type of individual in a "signature strike", which is not McNeal's focus in this series):


VETTING AND VALIDATING TARGETS

The United States government has developed a formal vetting process which allows members of agencies from across the government to comment on the validity of the target intelligence and any concerns related to targeting an individual. At a minimum, the vetting considers the following factors: target identification, significance, collateral damage estimates, location issues, impact on the enemy, environmental concerns, intelligence gain/loss concerns, and issues of legality. ...
...
A validation step follows the vetting step, it is intended to ensure that all proposed targets meet the objectives and criteria outlined in strategic guidance. The term "strategic" is a reference to national level objectives - the assessment is not just whether the strike will succeed tactically (i.e. will it eliminate the targeted individual) but also asks whether the strike will advance broader national policy goals. Accordingly, at this stage there is also a reassessment of whether the killing will comport with domestic legal authorities such as the AUMF or a particular covert action finding. At this stage, participants will also resolve whether the agency that will be tasked with the strike has the authority to do so. Individuals participating at this stage focus their analysis on a mix of military, political, diplomatic, informational, and economic consequences that flow from killing an individual. Other questions addressed at this stage are whether killing an individual will comply with the law of armed conflict, and rules of engagement (including theater specific rules of engagement). ...

Note that most of these questions, their answers and the factors considered, have already been asked, answered and researched in prior stages. Thus, there is a considerable amount of intentional redundancy throughout the process up to and including the final decision-making step:


VOTING ON TARGETS
...
At this stage, information from the ETF’s is reduced to more manageable summaries of information - the baseball cards. Those baseball cards differ by agency, but they generally look like the image depicted above. They are Powerpoint slides that display a color picture of the target and physical characteristics (such as height and weight.) The slide lists information such as the individual’s rank in the organization, professional expertise, family ties and links to individual attacks. Also included is specific intelligence to support the individual’s nomination with an explanation of the source of the intelligence. Other data may include a map of the area where the target has been operating, a personal history of the target, patterns of life for the target, cell phone number of the target and even what vehicle the target is known to travel in. If the person reviewing a baseball card wants more information, they can dig into the ETF to see what intelligence supports the information on the baseball card. ...

To Be Continued ...

Regards

Mike

jmm99
03-15-2013, 07:57 PM
The Politics of Accountability for Targeted Killings (http://www.lawfareblog.com/2013/03/the-politics-of-accountability-for-targeted-killings/) (by Gregory McNeal, March 14, 2013).

The first part of McNeal's Lawfare post, before getting into the "politics of accountability", sums up the end stage of the targeting approval process:


APPROVAL PROCESS SUMMARY

To begin, let’s sketch a general picture of the kill-list approval process. Based on news reports, it appears that...

... the first step in the process consists of military and intelligence officials from various agencies who compile data and make recommendations based on internal vetting and validation standards.

Second, those recommendations go through the NCTC, which further vets and validates rosters of names and other variables that are further tailored to meet White House standards for lethal targeting.

Third, the president’s designee (previously Brennan) convenes a NSC deputies meeting to get input from senior officials, including top lawyers from the appropriate agencies and departments. At this step is where the State Department’s Legal Adviser and the Department of Defense General Counsel along with other top lawyers would have an opportunity to weigh in with their legal opinions on behalf of their respective departments. Objections to a strike from top lawyers might prevent the decision from climbing further up the ladder absent more deliberation. In practice, an objection from one of these key attorneys almost certainly causes the president’s designee in the NSC process to hesitate before seeking final approval from the president.

Finally, if the NSC gives approval, the president’s designee shapes the product of the NSC’s deliberations and seeks final approval from the president. At this stage, targets are evaluated again to ensure that target information is complete and accurate, targets relate to objectives, the selection rationale is clear and detailed, and collateral damage concerns are highlighted.

By this point in the bureaucratic process, just as in prior conflicts (take Kosovo for example), there will be few targeting proposals that will reach the President that will prompt absolute prohibitions under the law of armed conflict. Rather most decisions at this point will be judgment calls regarding the application of law to facts, questions about the intelligence supporting a target, or questions about analytic judgments regarding facts and expected outcomes.

The remainder deals with congressional oversight, which is something of a yawn to me.

McNeal's complete article (127 pages) is available at SSRN, Kill-Lists and Accountability (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1819583):


Abstract:

This article is a comprehensive examination of the U.S. practice of targeted killings. It is based in part on field research, interviews, and previously unexamined government documents. The article fills a gap in the literature, which to date lacks sustained scholarly analysis of the accountability mechanisms associated with the targeted killing process. The article makes two major contributions: 1) it provides the first qualitative empirical accounting of the targeted killing process, beginning with the creation of kill-lists extending through the execution of targeted strikes; 2) it provides a robust analytical framework for assessing the accountability mechanisms associated with those processes
.
The article begins by reporting the results of a case study that began with a review of hundreds of pages of military policy memoranda, disclosures of government policies through Freedom of Information Act (FOIA) requests by NGOs, filings in court documents, public statements by military and intelligence officials, and descriptive accounts reported by the press and depicted in non-fiction books. These findings were supplemented by observing and reviewing aspects of the official training for individuals involved in targeted killings and by conducting confidential interviews with members of the military, special operations, and intelligence community who are involved in the targeted killing process. These research techniques resulted in a richly detailed depiction of the targeted killing process, the first of its kind to appear in any single publication.

After explaining how targeted killings are conducted, the article shifts from the descriptive to the normative, setting out an analytical framework drawn from the governance literature that assess accountability along two dimensions, creating four accountability mechanisms. After setting forth the analytical framework, it is applied to the targeted killing program. The article concludes with accountability reforms that could be implemented based on the specified framework.

The Table of Contents hits its high points:


I. THE LEGAL BASIS FOR TARGETED KILLINGS (pp.10-21)
A. Domestic Legal Foundation
B. International Legal Foundation
1. Jus ad bellum justification
2. Jus in bello characterization
Categories of Targets

II. IT TAKES A BUREAUCRACY TO MAKE AKILL LIST (pp.21-51)
A. How Kill Lists Are Made
1. Developing Names for the List
2. Who’s Worth Killing?
3. The Accountability Paper Trail
4. Vetting and Validating Names for the Kill-Lists
5. Voting On and Nominating Names to the List
B. Implications for the Accountability Debate

III. EXECUTING A TARGETED KILLING (pp.51-83)
A. The Law of Armed Conflict in the Context of Targeted Killing
1. Distinction and Positive Identification
2. Identifying potential harm to civilians
3. Assessing Feasible Precautions
4. Proportionality Analysis and Approval Authority
B. Accountability Problems and Opportunities
1. Military Performance in CENTCOM Theater of Operations
2. CIA performance in Pakistan
3. Explaining the differences

IV. ACCOUNTABILITY IN THE TARGETED KILLING PROCESS (pp.84-115)
A. MECHANISMS OF ACCOUNTABILITY IN TARGETED KILLINGS
B. LEGAL ACCOUNTABILITY AND TARGETED KILLINGS
1. Judicial Review of targeting decisions: Al-Aulaqi and El-Shifa
2. APA foreign affairs exception
3. International Legal Investigations
4. Criminal Prosecution of Military and CIA Personnel
C. POLITICAL ACCOUNTABILITY AND TARGETED KILLINGS
1. Congressional Oversight
2. Presidential Politics
3. International Political Constraints
D. BUREAUCRATIC ACCOUNTABILITY AND TARGETED KILLINGS
E. PROFESSIONAL ACCOUNTABILITY
F. ACCOUNTABILITY LESSONS

V. ACCOUNTABILITY REFORMS (pp.116-123)
A. Defend the Process.
B. Use Performance Reporting to Encourage Good Behavior
C. Publish Targeting Criteria
D. Publish costs (in dollars)
E. Establish Independent Review
F. Reject The Folly of Ex Post Judicial Oversight

All in all, a very worthwhile read applicable not only to drone strikes, but also to more conventional air strikes and infantry direct actions.

Regards

Mike

jmm99
03-16-2013, 02:31 AM
Presidential Politics, International Affairs and (a bit on) Pakistani Sovereignty (http://www.lawfareblog.com/2013/03/presidential-politics-international-affairs-and-a-bit-on-pakistani-sovereignty/) (by Gregory McNeal, March 15, 2013), continues with a look at presidential and international politics as "potential accountability mechanisms".

The bottom lines, to me, are (1) that a majority of Americans (http://www.washingtonpost.com/blogs/the-fix/wp/2013/02/06/the-american-public-loves-drones/) support drone strikes and other forms of direct action against AQ and associated groups, regarding all of that as forms of legitimate warfare; and (2) that an overwhelming majority of the EU and UN elites (and their populations) are in total disagreement (http://www.pewresearch.org/2013/03/07/after-fight-over-cia-director-ends-a-look-at-public-opinion-on-drones/) with the USG and the American people.


http://www.pewresearch.org/files/2013/03/PRC_Intl_Drone.png

I don't believe that gap can be bridged; and further, that there is no point in the US trying to placate the EU and UN elites.

For example, at the same time as McNeal was posting at Lawfare, Ben Emmerson and the Bureau of Investigative Journalism were engaging drones as they have in past:

From AP, UN says US drones violate Pakistan's sovereignty (http://www.chron.com/news/world/article/UN-says-US-drones-violate-Pakistan-s-sovereignty-4356752.php) (by SEBASTIAN ABBOT, March 15, 2013):


ISLAMABAD (AP) — The head of a U.N. team investigating casualties from U.S. drone strikes in Pakistan declared after a secret research trip to the country that the attacks violate Pakistan's sovereignty.

Ben Emmerson, the U.N. special rapporteur on human rights and counter-terrorism, said the Pakistani government made clear to him that it does not consent to the strikes — a position that has been disputed by U.S. officials.
...
According to a U.N. statement that Emmerson emailed to The Associated Press on Friday, the Pakistani government told him it has confirmed at least 400 civilian deaths by U.S. drones on its territory. The statement was initially released on Thursday, following the investigator's three-day visit to Pakistan, which ended Wednesday. The visit was kept secret until Emmerson left.

And from BIJ, Pakistan government says ‘at least 400 civilians’ killed in drone strikes (http://www.thebureauinvestigates.com/2013/03/15/pakistan-government-says-at-least-400-civilians-killed-in-drone-strikes/) ( by Alice K Ross, March 15, 2013):


The Pakistani government estimates at least 400 civilians have been killed in drone strikes – a figure close to the Bureau’s own findings.

In evidence to Ben Emmerson QC, UN special rapporteur on counter-terrorism, the Pakistan Ministry of Foreign Affairs has said that CIA drones have killed at least 2,200 people in the country including at least 400 civilians. This is close to the Bureau’s low range estimate of 411.

The figures were disclosed to Emmerson as he made a three-day visit to the country. The Ministry of Foreign Affairs, which compiled the figures, said a further 200 of the total dead were likely to be civilians too. ...

And so the current phase of lawfare goes.

Regards

Mike

jmm99
03-16-2013, 06:24 PM
Statement of the Special Rapporteur following meetings in Pakistan - UN Counter-Terrorism Expert meets victims of drone strikes in Waziristan and receives clear statement from the Government of Pakistan that it considers US drone strikes to be counter-productive, contrary to international law, and a violation of Pakistan's sovereignty and territorial integrity (http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13146&LangID=E) (ISLAMABAD, 14 March 2013).

Regards

Mike

carl
03-17-2013, 08:58 PM
Mike:

Putting legality of the strikes aside, I wonder if in the long run they are worth it. That opinion graph you posted made me think of that. Some of the countries in there don't matter, Greece and Spain for example. But some matter quite a lot, Britain, Mexico and Turkey. One big reason South Vietnam was conquered by the Reds was because the Communists won the battle for world public opinion. That had a real life and death consequence for millions of. I don't know how this will play out over the years but public opinion in other countries, especially the important ones, matters.

Almost half of those in India had no opinion. That might not be good since most of the drone attacks are against people who would happily slaughter Indians.

jmm99
03-18-2013, 04:33 AM
Hi Carl,

I'd love to put aside the "legality issues" of drone strikes; and look at the much broader picture. That includes not only the simplistic question ("Is it legal ?"), but questions of purpose, scope, judgment and wisdom - the tough questions. I think McNeal addresses some of them in his 127-page article; though admittedly, I had a tendency to drift (like Lawrence on his camel) as I got into the middle third. ;)

Yesterday, I ran into an interesting non-legal article that summed up 5 key issues regarding the "drone war" - in two pdf pages. From "The Week" (its "The Compass" blog), 5 truths about the drone war (http://theweek.com/article/index/241363/5-truths-about-the-drone-war) (March 13, 2013; by Marc Ambinder - "Marc Ambinder (born c. 1978) is an American editor and journalist, editor-at-large of The Week, a contributing editor at GQ and at The Atlantic." see, very brief Wiki (http://en.wikipedia.org/wiki/Marc_Ambinder)):


Maybe Jacques Derrida (http://en.wikipedia.org/wiki/Jacques_Derrida) [JMM: a good non-legal link to read in itself], the French dauphin of deconstruction, was right: In the beginning and end was the word. Logos. In war, words matter. Take our drone war, which is not, in point of fact, a war, and involves "drones" only incidentally. And yet the concept of hovering, amoral surveillance machines with missiles attached to them is pretty much the way everyone describes a much different reality.

I'd suggest (without any expertise as a pollster as opposed to a poll user; and thereby breaking at least two of Alinsky's Rules, despite having a copy 15 feet to the right of me and 15 feet to the left of me, as I write :)) that the polling results, both favorable and unfavorable to the USG and USP (People) positions, are heavily motivated by the "concept of hovering, amoral surveillance machines with missiles attached to them".

Leaving behind my expertise or lack of same, what are Mr Ambinder's Five Points (snipped) ? -


1. The drone war is not fought primarily with drones.
...
2. The CIA does not "fly" drones.
...
3. The targeted killing policy is the best of all worst options for two reasons. One: The United States does not have a coherent and legitimate capture and detention policy. (Thank the CIA torture program, Abu Ghraib, Congress, and the Obama administration's weak efforts to create one.) Two: Human intelligence collection has atrophied to the point where there are not enough people on the ground to facilitate the capture and detention of wanted targets.
...
4. 4. Al Qaeda core has not successfully pulled off a plot against the West since 2005, according to Peter Bergen.
...
5. RPVs are NOT the future of warfare. They are a future part OF warfare.
...

I'll take these in a slightly different order.

5. RPVs are NOT the future of warfare. They are a future part OF warfare.

Ambinder's argument for this is:


Wars are still mostly fought by people in the theater with guns and ammo and communication trucks. RPV technology is advancing, but it is still hard to get one of those buggers to hover in place for an hour and THEN shoot something, and then hover for hours. It's doable, but hard. (Most battle damage assessment are done with other UAVs). That's why the RPVs "orbit." Their courses are programmed; they can deviate off-track and be rapidly reprogrammed, but physics still prevents complete freedom of movement especially if the UAVs have large ordinance on board. If an intelligence source has the exact coordinate of a known al Qaeda operative, the weapon of choice used to kill him will be the platform that is closest, available, and would provide the least collateral damage and most accuracy, depending upon the mission and its own operational security needs.

I have no complaint here. Wilf (Owen of Infinity Journal (http://www.infinityjournal.com/)) might require more "rigour"; but "War" is always "War" (the conduct of war, warfare - lit. a "ticket to war" - has varied over the ages, though not as much as people might assert). IMO: the "weapon of choice" could range from an infantryman to a nuclear warhead - drone strikes and airstrikes are mesne means. One might expect adversity to drone strikes to diminish as they enter more and more national armories (as the crossbow, fusils, cannon, etc., incl. "nukes").

1. The drone war is not fought primarily with drones.

Ambinder's argument for this is:


The United States targets members of al Qaeda, al Qaeda affiliates and now, apparently, affiliates of those affiliates, using a comprehensive array of technical intelligence resources, backed up by fighter jets with conventional bombs, submarines that launch missiles, other platforms that launch missiles, and, sometimes, missiles attached to remotely piloted vehicles. The policy is best described as targeted surveillance and killing of the aforementioned groups. In certain areas, it is easier to fly airplanes; in certain places in Pakistan, RPVs launched by Afghanistan will do the job. The munition and vehicle used depends on the target, his location, his importance, and the resources available to the military and CIA at the time.

Again, I've no complaint here; other than a quibble that boots on the ground should be in play (given the right situations) - the PBI (poor bloody infantryman) and the "Son Tay Raiders". And, I'd have to add those "always on the table" nuclear devices.

2. The CIA does not "fly" drones.

Ambinder's argument for this is:


It "owns" drones, but the Air Force flies them. The Air Force coordinates (and deconflicts) their use through the CIA's Office of Military Affairs, which is run by an Air Force general. The Air Force performs maintenance on them. The Air Force presses the button that releases the missile. There are no CIA civilians piloting remote controlled air vehicles. The Agency has about 40 unmanned aerial vehicles in its worldwide arsenal, about 30 of which are deployed in the Middle East and Africa. Most of these thingies are equipped with sophisticated surveillance gear. A few of them are modified to launch missiles. The Air Force owns many more "lethal" RPVs, but it uses them in the contiguous battlefield of Afghanistan.

If this be true (I don't know. but it sounds plausible), we have a combination of Title 10 & Title 50 (U.S. Code) that fits within the "Laws of War" (aka "LOAC" & "IHL"), as accepted and applied by the U.S. (though quite obviously not as "accepted and applied" by the citizens of other nations - from the Pew Poll).

On this point (which is a legal one), Wells Bennett (http://www.lawfareblog.com/2013/03/the-white-paper-the-public-authority-defense-and-five-truths-about-the-drone-war/) notes:


That’s an interesting “truth” - assuming it is, indeed, true - in light of the DOJ White Paper (http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf).

Among other things, the White Paper concluded that, under its given facts, a hypothetical violation of 18 U.S.C. § 1119 (or the “murder of a U.S. citizen
abroad” statute) likely would be justified on “public authority” grounds. This part of the White Paper proceeded in two steps:

first, by noting 1119′s incorporation of other federal laws which criminalize only “unlawful” killings;

and second, by pointing out that the targeted killing, abroad and away from any zone of active hostilities, of a senior Al-Qaeda leader who is a U.S. citizen and poses an imminent threat - would be lawful.

That is, the killing would be conducted in accordance with the laws of war, which govern the United States’ non-international armed conflict with Al-Qaeda. And that, apparently, would furnish “public authority” sufficient to justify a violation of the statute under such circumstances.

That conclusion, of course, follows from two a priori conclusions: (1) that the "Laws of War" apply; and (2) that "Kill" is an equally valid option to "Capture". Generally speaking, we have a US vice EU-UN dichotomy on all three of those legal issues.

- to be continued -

jmm99
03-18-2013, 04:41 AM
3. The targeted killing policy is the best of all worst options for two reasons. One: The United States does not have a coherent and legitimate capture and detention policy. (Thank the CIA torture program, Abu Ghraib, Congress, and the Obama administration's weak efforts to create one.) Two: Human intelligence collection has atrophied to the point where there are not enough people on the ground to facilitate the capture and detention of wanted targets.

Ambinder's argument for this is:


This means the US over relies on technical intelligence, and on signals intelligence in particular. In Pakistan, it relies on tips from the Army and the ISI. Often, the member of al Qaeda core who's been identified by the ISI is not, in fact, a member of al Qaeda core, but is instead a Pakistani Taliban or militant who is not sufficiently pro-Pakistan.

The U.S. has gotten better at vetting these tips, but the policy generally is that it's best not to let the sufficient be the enemy of the reliable. Yemen's government does the same thing. The U.S. MUST rely on allied intelligence services because it cannot rely on its own. So: Bad guys exist. Can't capture 'em. Can't figure out who they are without help. What's the answer? You kill them.

If you oppose the policy of targeted killing of al Qaeda operatives, then you ought to support a viable detention system as well as a significant increase in our indigenous human intelligence capacity. Special operations forces and the CIA really would like to capture these guys and interrogate them, because these guys will often give up their comrades. But they can't. So they don't. And the president won't take any chances in letting someone potentially dangerous slip through his grasp.

A factor (not the only one), in the re-election of President Bush in 2004 and in the re-election of President Obama in 2012, was that both incumbants could assert that CONUS had been free from a 9/11 attack after that event.

NB: I don't agree that we are totally hopeless in putting boots on the ground (UBL as a case in point). BUT, "Son Tay" Ops are tricky - as that op proved - see McRaven, Spec Ops: Case Studies in Special Operations Warfare; Theory and Practice (http://www.amazon.com/Spec-Ops-Studies-Operations-Practice/dp/0891415440/ref=tmm_hrd_title_0) (1997; well before he became famous).

That brings us to Ambinder's last point.

4. Al Qaeda core has not successfully pulled off a plot against the West since 2005, according to Peter Bergen.

Ambinder's argument for this is:


Most of the militants targeted by the U.S. in Pakistan today have absolutely no interest in attacking the U.S. homeland. They DO have an interest, a series of very parochial interests, in Pakistan and Afghanistan. At some point, it makes no sense to chase down every person who ever uttered a threat against U.S. troops in Afghanistan. The threat from al Qaeda affiliates (and still the intelligence community bickers over the definition of what an affiliate is) is less than the threat from al Qaeda core.

The other side of that coin is that "if we fight them over there, we won't have to fight them here."

I've never really bought the "fight them there" argument in full - or "1% possibility" arguments, for that matter. So, I do tend to Ambinder's views on Astan and Pstan. But then, I also have a Worldview that would require a much more restricted geographic scope for US force projection, except in very exigent situations.

Regards

Mike

jmm99
05-24-2013, 05:03 PM
Text of the President’s Speech (http://www.whitehouse.gov/photos-and-video/video/2013/05/23/president-obama-speaks-us-counterterrorism-strategy#transcript) (23 May 2013).

Video of the President's Speech (http://www.whitehouse.gov/photos-and-video/video/2013/05/23/president-obama-speaks-us-counterterrorism-strategy) (about 1 hour).

This is a long speech, including a mix of experiences, politics, policies, philosophy (morals and ethics), law and strategy. It will raise more questions than it answers. The WH view of the speech follows.

White House Fact Sheet on Use of Force Away from Hot Battlefields (http://www.lawfareblog.com/2013/05/white-house-fact-sheet-on-use-of-force-away-from-hot-battlefields/) (23 May 2013) (snip; please note that the following rules do not necessarily apply to "hot battlefields" - but could, as a minority argues):


Preference for Capture

The policy of the United States is not to use lethal force when it is feasible to capture a terrorist suspect, because capturing a terrorist offers the best opportunity to gather meaningful intelligence and to mitigate and disrupt terrorist plots. Capture operations are conducted only against suspects who may lawfully be captured or otherwise taken into custody by the United States and only when the operation can be conducted in accordance with all applicable law and consistent with our obligations to other sovereign states.

Standards for the Use of Lethal Force

Any decision to use force abroad – even when our adversaries are terrorists dedicated to killing American citizens – is a significant one. Lethal force will not be proposed or pursued as punishment or as a substitute for prosecuting a terrorist suspect in a civilian court or a military commission. Lethal force will be used only to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively. In particular, lethal force will be used outside areas of active hostilities only when the following preconditions are met:

First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.

Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

Third, the following criteria must be met before lethal action may be taken:

1) Near certainty that the terrorist target is present;

2) Near certainty that non-combatants[1] will not be injured or killed;

3) An assessment that capture is not feasible at the time of the operation;

4) An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

5) An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally – and on the way in which the United States can use force. The United States respects national sovereignty and international law.

[1] Non-combatants are individuals who may not be made the object of attack under applicable international law. The term “non-combatant” does not include an individual who is part of a belligerent party to an armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of national self-defense. Males of military age may be non-combatants; it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants.

NB: (1) The preference for capture over killing. In the "least harmful means" test (propounded by some in the ICRC and elsewhere), escalation of force rises from capture, slight wounding, severe wounding, and then killing. Thus, the full "least harmful means" standard is not adopted in the statement - nor is it excluded; and

(2) The "near certainty" standard (re: lethal force), combined with the "continuing, imminent threat" requirement, is very similar to the "reasonable certainty" language used in the CENTCOM ROE (though not in the JCS Standing Rules of Engagement).

Immediate comments by some Lawfare participants:

The Obama Speech: The Same Standards for Targeted Killings Apply to Non-Citizens as to Citizens (http://www.lawfareblog.com/2013/05/the-obama-speech-the-same-standards-for-targeted-killings-apply-to-non-citizens-as-to-citizens/) (by Rick Pildes ).

The President’s Speech: What About GTMO Detainees Who Cannot be Tried, but also Cannot be Released? (http://www.lawfareblog.com/2013/05/what-about-gtmo-detainees-that-cannot-be-tried-but-also-cannot-be-released/) (by Wells Bennett).

The President’s Speech: A Quick and Dirty Reaction—Part 1 (Are We at War?) (http://www.lawfareblog.com/2013/05/the-presidents-speech-a-quick-and-dirty-reaction-part-1/) (by Benjamin Wittes).

The President’s Speech: A Quick and Dirty Reaction–Part 2 (Guantanamo) (http://www.lawfareblog.com/2013/05/the-presidents-speech-a-quick-and-dirty-reaction-part-2-guantanamo/) (by Benjamin Wittes).

The President’s Speech: A Quick and Dirty Reaction—Part 3 (Did the President Narrow the Targeting Criteria for Drone Strikes?) (http://www.lawfareblog.com/2013/05/the-presidents-speech-a-quick-and-dirty-reaction-part-3-did-the-president-narrow-the-targeting-criteria-for-drone-strikes/) (by Benjamin Wittes).

The President’s Speech: A Quick and Dirty Reaction–Part 4 (Hedging on the Drone Court) (http://www.lawfareblog.com/2013/05/the-presidents-speech-a-quick-and-dirty-reaction-part-4-hedging-on-the-drone-court/) (by Benjamin Wittes).

The President’s Speech: The Good, the Bad, and the Ugly (http://www.lawfareblog.com/2013/05/the-presidents-speech-the-good-the-bad-and-the-ugly/) (by John Bellinger - "The President’s speech was a dog’s breakfast: some good parts, some bad parts, and some ugly parts.")

Enjoy ;)

Regards

Mike

jmm99
05-25-2013, 02:00 AM
all by persons well-known to regular readers.

Ben Emmerson on President Obama’s Speech (http://www.lawfareblog.com/2013/05/ben-emmerson-on-president-obamas-speech/) (by Ritika Singh) (quotes from statement made by Mr Emmerson):


This extremely important speech breaks new ground in a number of key respects. It affirms for the first time this Administration’s commitment to seek an end to its armed conflict with Al Qaida as soon as possible; it reminds the world that not every terrorist threat or terrorist attack can be equated with a situation of continuing armed conflict; it sets out more clearly and more authoritatively than ever before the Administration’s legal justifications for targeted killing, and the constraints that it operates under; it clarifies, and proposes improvements to, the procedures for independent oversight; and it sets out the steps the President is now resolved to take in order to close Guantanamo Bay.

The publication of the procedural guidelines for the use of force in counter-terrorism operations is a significant step towards increased transparency and accountability. It also disposes of a number of myths, including the suggestion that the US is entitled to regard all military-aged males as combatants, and therefore as legitimate targets.
...
The President’s historic statement today is to be welcomed as a highly significant step towards greater transparency and accountability; and as a declaration that the US war with Al Qaida and its associated forces is coming to an end. The President’s principled commitment to ensuring the closure of Guantanamo is an utterly essential step. His acknowledgement that the time has come to tackle not only the manifestations of terrorism but also its social, economic and political causes around the world – to seek long term solutions – signals a shift in rhetoric and a move in policy emphasis towards promoting a strategy of sustainable and ethical counter-terrorism, consistent with Pillar I of the UN Global Counter-Terrorism Strategy.

But, most interesting to me was this short statement of intent by Mr Emmerson: "I will be engaging with senior Administration officials in Washington over the coming days and weeks in an effort to put some flesh on the bones of the announcements made today."

On the other hand, You Are an Operational Commander of AQAP Reading the White House Fact Sheet (http://www.lawfareblog.com/2013/05/you-are-an-operational-commander-of-aqap-reading-the-white-house-fact-sheet/) (by Kenneth Anderson):


Along with President Obama’s speech yesterday on counterterrorism policy, the White House released a document titled "Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities". Among other important matters (such as declaring a preference for capture), the Fact Sheet provides “Standards for the Use of Lethal Force,” which enumerates criteria that “must be met before lethal action may be taken,” and requiring among other things:

2. Near certainty that non-combatants will not be injured or killed.

Imagine for a moment that you are an operational commander in al Qaeda or one of its associated forces – Al Qaeda in the Arabian Peninsula, for example. You are working on ways to attack the United States, its allies, or interests; perhaps you are working with AQAP’s key bomb-maker, the same who came up with the Detroit Christmas bomber’s underwear bomb and the xerox printer cartridge bomb. Imagine that he has managed to come up with a way to implant explosives in a person’s body, and you are working on a way to deploy this operationally. You know that you are a possible, indeed likely, target of a drone strike. But you have just read President Obama’s speech carefully, and you have also just read the White House Fact Sheet. What would your rational course of action be, given your aims? Readers are invited to state what their course of action would be if they were the AQAP commander in this scenario.
...
The tradeoff made by the Fact Sheet radically decreases the uncertainties and contingencies faced by the other side, however. It gives a path to avoid precisely the outcome that our side seeks to deliver. And it does so by inviting further illegality under the laws of war, such as using children as human shields, and effectively rewards strategies of illegal shielding. Or so a critic of this kind of transparency might argue. Is the tradeoff in public transparency worth it? Readers are invited to comment.

Drawing the same conclusion as Anderson (though for slightly different reasons) is Kevin Jon Heller, Two Problems with the “Near Certainty” Standard (http://opiniojuris.org/2013/05/24/a-thought-experiment-concerning-the-near-certainty-standard/). Heller, who has been generally adverse to both Bush and Obama targeted killings (see, Obama Thinks We’re All Rubes (http://opiniojuris.org/2013/05/24/the-obama-administration-thinks-were-all-rubes/)), makes two arguments in the first piece:


First, I don’t believe for a moment that Obama will actually enforce it, no matter how pure his intentions. If you disagree, consider the following hypothetical (and obviously counterfactual) scenario:


The CIA learns through drone surveillance and a human informant that Osama bin Laden is having dinner with one of his wives inside his Abbottabad compound. It asks Obama to authorize a drone strike on bin Laden. Obama declines, because there is not “near-certainty that no civilian will be killed or injured in the attack.” On the contrary, there is absolute certainty that a civilian will be killed.

If you believe that Obama would decline to act in this hypothetical situation, I have a lovely bridge to sell you. But that is precisely what the “near certainty” standard would require.

Second, and perhaps more importantly, Obama should not enforce the standard, because it is fundamentally inconsistent with his obligation — with any President’s obligation — to protect the US. However skeptical of American power we may be, we have to acknowledge that there are, in fact, times when it is important for a President to use lethal force even though he or she knows innocent civilians will die in the process. The bin Laden hypothetical is one example; another is a situation in which a suicide bomber uses a small child as a human shield while approaching his target. Would we really want a President to refuse to kill the suicide bomber because he or she knows with absolute certainty that the child will die in the attack? The principle of proportionality, for all its subjectivity, exists for a reason: because no matter how attractive objective standards like “near certainty” may seem, anticipated civilian damage does, in fact, have to be balanced against the military advantage of an attack. The loss of innocent civilian life, though regrettable, is not always unjustified.

and, in the second piece, more "pure Heller":


What is most perverse about Obama’s purported requirement is that, from a legal standpoint, it is completely unnecessary. International humanitarian law does not demand perfection; it demands proportionality. Innocent civilians die in legitimate military attacks. They always have, and they always will — no matter how “precise” weapons like drones become. Every military commander in every country in the world accepts that basic fact of warfare. But not Obama, winner of the Nobel Peace Prize. He cannot bring himself to acknowledge that the US is — like every other country — willing to launch attacks that are likely to kill innocent civilians when it believes the targets are important enough. He would rather pretend, in public and seemingly without shame, that the US is more virtuous and has cleaner hands than everyone else, friend and foe alike. Never mind that if the US took his targeting standard seriously, its drone fleet would be gathering dust in a hangar somewhere.

Finally, Reactions to the President’s Speech (http://www.lawfareblog.com/2013/05/reactions-to-the-presidents-speech/) (by Jack Goldsmith), whose primary reaction is found in his CFR essay, Obama Passes the Buck: The President’s Empty Rhetoric on Counterterrorism (http://www.foreignaffairs.com/articles/139403/jack-goldsmith/obama-passes-the-buck). As Jack notes:


The subtitle captures the basic thrust of the essay, which is a pretty cynical reaction to the President’s speech grounded mostly in my cynicism about the President’s pledges to work with Congress on counterterrorism policy.

Different strokes from different folks.

Regards

Mike

jmm99
05-25-2013, 02:45 PM
J. Lawton Collins (http://en.wikipedia.org/wiki/J._Lawton_Collins) used the term in the title of his book, War in peacetime: the history and lessons of Korea (1969). Andre Beaufre (http://en.wikipedia.org/wiki/Andr%C3%A9_Beaufre) focused on the term in his books, Introduction to Strategy (New York: Praeger, 1965 [Introduction la stratgie, Paris, 1963]); and Deterrence and Strategy (London: Faber, 1965 [Dissuasion et stratgie Paris, Armand Colin, 1964]).

Beaufre's history of its practical usage found that, prior to WWI, a clear line was drawn between "Peace" (the European "normal" between the Napoleanic Wars and WWI) and "War". Those situations were governed by distinct and separate rules in law, strategy, policy and politics. In law, the dichotomy was evidenced by L.F.L. Oppenheim's (http://en.wikipedia.org/wiki/L._F._L._Oppenheim) magisterial 2-volume treatise (1905 1st edition), International Law: A Treatise. Vol I: Peace; and International Law: A Treatise. Vol II: War and Neutrality. Both online at www.archive.org

The changes caused by WWI-WWII (followed by the Cold War) put finis to the clear distinction between "Peace" and "War". Thus, in Beaufre's terms, lawyers, strategists, policy-makers and politicians had to learn to play one piece in two different keys at the same time:


The game of strategy can, like music, be played in two keys. The major key is direct strategy, in which force is the essential factor. The minor key is indirect strategy, in which force recedes into the background and its place is taken by psychology and planning.

Thus, we have been introduced to such concepts as the "Three Block War (https://en.wikipedia.org/wiki/Three_Block_War)".

That being said, there has been a reluctance to abandon the clear dichotomy between "Peace" and "War"; and the concept of "War in Peacetime" has been found unacceptable by many. That is not a right or left thing; it is not a military or civilian thing; but, it is shaped by many factors in each of us.

Yesterday's NYT Editorial illustrated to me the anti-"War in Peacetime" viewpoint - as also did some of President Obama's remarks - The End of the Perpetual War (http://www.nytimes.com/2013/05/24/opinion/obama-vows-to-end-of-the-perpetual-war.html?pagewanted=1&_r=2&ref=opinion) (by THE EDITORIAL BOARD; Published: May 23, 2013):


President Obama’s speech on Thursday was the most important statement on counterterrorism policy since the 2001 attacks, a momentous turning point in post-9/11 America. For the first time, a president stated clearly and unequivocally that the state of perpetual warfare that began nearly 12 years ago is unsustainable for a democracy and must come to an end in the not-too-distant future.

“Our systematic effort to dismantle terrorist organizations must continue,” Mr. Obama said in the speech at the National Defense University. “But this war, like all wars, must end. That’s what history advises. It’s what our democracy demands.”

As frustratingly late as it was — much of what Mr. Obama said should have been said years ago — there is no underestimating the importance of that statement. Mr. Obama and his predecessor, President George W. Bush, used the state of war that began with the authorization to invade Afghanistan and go after Al Qaeda and others who planned the Sept. 11 attacks to justify extraordinary acts like indefinite detention without charges and the targeted killing of terrorist suspects.

While there are some, particularly the more hawkish Congressional Republicans, who say this war should essentially last forever, Mr. Obama told the world that the United States must return to a state in which counterterrorism is handled, as it always was before 2001, primarily by law enforcement and the intelligence agencies. That shift is essential to preserving the democratic system and rule of law for which the United States is fighting, and for repairing its badly damaged global image.

Mr. Obama said the Authorization for Use of Military Force, which was passed after Sept. 11, 2001, must be replaced to avoid keeping “America on a perpetual wartime footing.” He added: “Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states.”

He did not say what should replace that law, but he vowed: “I will not sign laws designed to expand this mandate further.” ...

My reaction to this verbiage is that it evinces both naivety and arrogance. Naivity because the other side also has a vote in whether a "war in peacetime" shall end. Arrogance (perhaps, hubris is a better word) because it is simply another way of declaring Pax Americana - which goes hand in hand with Bellum Americana - both spell "global hegemony".

While I appreciate the desire to go back to a simpler, more clearly-defined time, I do not believe that is possible.

Regards

Mike

davidbfpo
05-25-2013, 10:30 PM
A commentary by Nigel Inkster, of IISS and ex-SIS; it ends with:
...on balance the proposals set out by Obama would seem to be a credible option for rebalancing US strategic priorities to match present realities.

Link:http://www.iiss.org/en/iiss%20voices/blogsections/iiss-voices-2013-1e35/may-2013-45bd/obama-resets-war-on-terror-f2c2

jmm99
05-26-2013, 12:36 AM
I'd say that Mr Inkster's analysis of the President's rhetoric is quite accurate. It parallels Ben Emmerson's analysis and conclusions (briefly mentioned above). Certainly, the President's rhetoric was closer to the UK-EU ideals than his actions over the last 4 years. Whether that rhetoric will lead to "flesh on the bones" (in Mr Emmerson's words) is quite another thing.

I did have a problem with this piece of Nigel Inkster's rhetoric:


This speech could mark the point at which the US government begins to shift away from a counter-terrorism approach that has become excessive and unsustainable, towards one that enables resources to be redirected towards more salient national-security issues.

As I perceive what the US has done since 9/11, the events which were "excessive and unsustainable" were the nation-building projects in Iraq and Afghanistan. The $$$ borrowed and spent on those projects are sunk costs and not about to be recovered. If Mr Inkster could identify what "resources" have now become available for "redirection", we USAians would like him to tell us.

Regards

Mike

slapout9
05-28-2013, 08:20 PM
Watched this last night on CNN even though it is an HBO documentary, talks about a lot of the issues discussed here.......most of the "Bill" Laden tracking unit were women:eek:


https://www.hbo.com/documentaries/manhunt-the-search-for-bin-laden/index.html

jmm99
05-28-2013, 08:59 PM
Ken Anderson and Ben Wittes, in their online book, Speaking the Law: The Obama Administration’s Addresses on National Security Law (http://www.lawfareblog.com/speaking-the-law-the-obama-administrations-addresses-on-national-security-law/) (2013), have selected and analyzed 13 speeches by the President and others in his administration:


OVERVIEW

Over the course of President Obama’s first term in office, the president and senior officials of his administration have given a series of major speeches on the legal framework for confronting terrorists overseas. The speeches collectively represent the fullest statement the administration has given of the law of drones, targeted killing, and the larger approach to the war against Al Qaeda and its allies. The Obama administration has faced criticism both for the content of the speeches and for not saying more in them–and releasing the legal memos that lie beneath them. In Speaking the Law, Kenneth Anderson and Benjamin Wittes dissect the Obama administration’s major speeches on national security law–analyzing what the administration has actually said, fleshing out the virtues and vices of the legal framework it has mapped out, and suggesting areas for legislative refinement and further administration development.

Those "canonical" speeches involve policy and strategy as much (or more) than "down in the weeds" legal issues.

The outline of the online book (to be published in stages) is:


Speaking the Law (Introduction) (http://www.scribd.com/document_downloads/131521742?extension=pdf&from=embed&source=embed), by Kenneth Anderson and Benjamin Wittes [19 pp.]

Speaking the Law (Chapter 1) (http://www.scribd.com/document_downloads/131036500?extension=pdf&from=embed&source=embed), by Kenneth Anderson and Benjamin Wittes [64 pp.]

Speaking the Law (Chapter 2) (http://www.scribd.com/document_downloads/141971664?extension=pdf&from=embed&source=embed), by Kenneth Anderson and Benjamin Wittes [64 pp.]

[JMM: Chapters 3, 4 & 5 to be published later]

Appendices A, B & C: Addresses and Remarks by President Obama and Administration Officials on National Security Law (http://www.hoover.org/sites/default/files/documents/Speaking-the-Law%20_Appendices.pdf) [JMM: at over 160 pp., has extensive snips of the full speeches]

For those who want the complete speeches, here they are:


President Barack Obama, “Remarks by the President on National Security (http://www.lawfareblog.com/wp-content/uploads/2013/05/Remarks-by-the-President-on-National-Security-May-21-2009.pdf),” The National Archives, Washington, D.C., May 21, 2009

President Barack Obama, “A Just and Lasting Peace (http://rci.rutgers.edu/~tripmcc/phil/obama-a_just_and_lasting_peace.pdf),” the 2009 Nobel Peace Prize Lecture, Oslo, Norway, December 10, 2009

Harold H. Koh, legal adviser to the Department of State, “The Obama Administration and International Law (http://www.state.gov/s/l/releases/remarks/139119.htm),” address to the American Society of International Law, Washington, D.C., March 25, 2010

Harold H. Koh, legal adviser to the Department of State, “International Law in Cyberspace (http://www.harvardilj.org/wp-content/uploads/2012/12/Koh-Speech-to-Publish1.pdf),” address to the USCYBERCOM Inter-Agency Legal Conference, Fort Meade, Maryland, September 18, 2012

David Kris, assistant attorney general for national security, “Law Enforcement as a Counterterrorism Tool (http://www.brookings.edu/~/media/events/2010/6/11%20law%20enforcement/0611_law_enforcement_kris_remarks.pdf),” address at the Brookings Institution, Washington, D.C., June 11, 2010

Jeh C. Johnson, general counsel, Department of Defense, “U.S. Terrorist Suspect Detention Policy (http://www.lawfareblog.com/wp-content/uploads/2011/10/20111018_Jeh-Johnson-Heritage-Speech.pdf),” speech to the Heritage Foundation, Washington, D.C., October 18, 2011

Jeh C. Johnson, general counsel, Department of Defense, “National Security Law, Lawyers, and Lawyering in the Obama Administration (http://www.lawfareblog.com/2012/02/jeh-johnson-speech-at-yale-law-school/),” address at Yale Law School, New Haven, Connecticut, February 22, 2012

Jeh C. Johnson, general counsel, Department of Defense, “The Conflict against Al Qaeda and Its Affiliates: How Will It End? (http://www.lawfareblog.com/2012/11/jeh-johnson-speech-at-the-oxford-union/)” Oxford Union, Oxford University, November 30, 2012

Eric Holder, attorney general, Department of Justice, "Address at Northwestern University School of Law (http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html)", Chicago, Illinois, March 5, 2012

Stephen W. Preston, general counsel, Central Intelligence Agency, “CIA and the Rule of Law (http://www.lawfareblog.com/2012/04/remarks-of-cia-general-counsel-stephen-preston-at-harvard-law-school/),” address at Harvard Law School, Cambridge, Massachusetts, April 10, 2012

John O. Brennan, assistant to the president for homeland security and counterterrorism, “Strengthening Our Security by Adhering to Our Values and Laws (http://www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an),” address at Harvard Law School, Cambridge, Massachusetts, September 16, 2011

John O. Brennan, assistant to the president for homeland security and counterterrorism, “The Ethics and Efficacy of the President’s Counterterrorism Strategy (http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorism-strategy),” Woodrow Wilson International Center for Scholars, Washington, D.C., April 30, 2012

John O. Brennan, assistant to the president for homeland security and counterterrorism, “U.S. Policy toward Yemen (http://www.cfr.org/united-states/us-policy-toward-yemen/p28794),” Council on Foreign Relations, New York City, August 8, 2012.

- cont. in part 2

jmm99
05-28-2013, 09:12 PM
The scope of Chapters 1 & 2 is summarized in the Introduction:


Our examination of the speeches begins, in chapter 1, with a description of the framework they lay out. In this chapter, we describe - but largely refrain from analyzing - what the Obama administration has said about the legal framework in which it is operating with respect to such questions as the nature of the confl ict, the use of drones and targeted killings, detention, trial by military commission and in federal courts, interrogation, and the end of the conflict. The purpose of this chapter is to synthesize the various speeches into a single doctrinal statement that describes in holistic terms the administration’s approach in legal policy to the conflict.

Chapter 2 attempts to analyze the framework and examine the stresses upon it. We ask whether the framework is, in the main, the right one. Where has the administration gotten matters right and where wrong? Where is the framework under developed? In general, we argue, the administration has articulated a strong basis for institutional settlement of contested questions - one that gives future administrations a useful set of doctrinal positions on which to build as the conflict continues to morph. Important questions remain open, however, and the framework will require further refinement by both the administration and the legislature.

Here are two major points (one from Chapter 1; another from Chapter 2), which I've also argued here.


The argument [of those who oppose the use of the criminal justice system], as I understand it, is basically the following:

(1) We are at war.

(2) Our enemies in this war are not common criminals.

(3) Therefore, we should fight them using military and intelligence methods, not law enforcement methods.

This is a simple and rhetorically powerful argument and, precisely for that reason, it may be attractive.

In my view, however, and with all due respect, it is not correct. And it will, if adopted, make us less safe. Of course, it’s not that law enforcement is always the right tool for combating terrorism. But it’s also not the case that it’s never the right tool. The reality, I think, is that it’s sometimes the right tool. And whether it’s the right tool in any given case depends on the specific facts of that case.

Here’s my version of the argument:

(1) We’re at war. The president has said this many times, as has the attorney general.

(2) In war you must try to win—no other goal is acceptable.

(3) To win the war, we need to use all available tools that are consistent with the law and our values, selecting in any case the tool that is best under the circumstances.

Those tools include the "neutralization triad" (kill, capture, convert), where trials by civil courts, trials by military commissions and detentions without trials are all tools arising as part of the "capture" option.

Detentions without trial end when the armed conflict ends, bringing us to a major point from Chapter 2 - where the Obama Administration's position is far from clear (even given the President's last speech).


The End of the Confl ict and Extra-AUMF Threats

Some of the most important areas of underdevelopment in the speeches relate to the fragility of the AUMF as a basis for overseas counterterrorism operations into a future that law does not well describe. The AUMF is, after all, by its terms tied to the September 11 attacks. While it has supported the use of force against any number of groups, it will not do so forever as the conflict continues to morph. At some point, and with respect to at least some groups, the AUMF simply looks too remote. The president, of course, retains the authority, in both international and domestic law, to use force to attack these groups as an exercise of self-defense to the extent they pose an imminent threat to the United States. But such operations would not be part of the existing armed conflict authorized by the AUMF.
...
There are, after all, new threats that lie entirely beyond the AUMF—that is, national security threats that have no relationship at all to the matrix of threats linked to Al Qaeda, September 11, our current adversaries, or their causes. The day will thus come when the United States has to deal with some major terrorist threat that is not even plausibly within the AUMF’s
scope. Perhaps it will be from some terrorist group in Latin America, maybe from Hezbollah. But there will certainly be threats from non-state groups outside of the AUMF conflict that some president will someday feel compelled to address with force. It has been easy, over the last dozen years of armed
confl ict under the AUMF, to assume that all uses of force authorized by the president for reasons of national security are part of the same existing armed conflict - or that, to the extent they are not, they are part of a different armed confl ict as soon as they are undertaken, because they involve some new state-to-state conflict. Yet the modern evolution of warfare toward more micro-targeted projections of force - toward very small wars - suggests that presidents may well in the future seek to avoid the sustained violence that would legally establish an armed conflict.

These are much more matters of policy and strategy, than matters of law as conventionally defined.

Regards

Mike

jmm99
05-28-2013, 09:36 PM
I missed the program, but the CNN transcript is here (http://transcripts.cnn.com/TRANSCRIPTS/1305/27/se.02.html).

At its end, these comments:


UNIDENTIFIED MALE: It's a nice chapter to close. The chapter is closed, but it's not over. Sadly enough, I think we're going to be in this situation again.

UNIDENTIFIED FEMALE: Bin Laden achieves, you know, spreading his ideology beyond what he probably expected it to. How do you kill an ideology? Killing one person doesn't end that.

Something to consider.

Regards

Mike

jmm99
05-29-2013, 02:08 AM
The President's statement that the armed conflict with al Qaeda must and should end lest we find ourselves in a "perpetual state of war", joined with approving commentary such as the NYT's "End of the Perpetual War", has led to the question of what will replace the "War Paradigm" ? A "Peace Paradigm", or something different from each of them. Specifically, what policies, strategies and rules will cover encounters with violent non-state actors ?

Those issues - with more questions than answers - are presently the gist of an ongoing conversation at Lawfare:

Does the Armed-Conflict Model Matter in Practice Anymore? (http://www.lawfareblog.com/2013/05/does-the-armed-conflict-model-matter-in-practice-anymore/) (by Robert Chesney, Friday, May 24, 2013)

The Chesney Conjecture: Is This What Peace Looks Like? (http://www.lawfareblog.com/2013/05/the-chesney-conjecture-is-this-what-peace-looks-like/) (by Benjamin Wittes, Monday, May 27, 2013)

Eight Thoughts on the Broad Reading of Article II Inherent in Bobby’s Conjecture (http://www.lawfareblog.com/2013/05/eight-thoughts-on-the-broad-reading-of-article-ii-inherent-in-bobbys-conjecture/) (by Jack Goldsmith, Tuesday, May 28, 2013)

The key points made by Bobby Chesney about targeting and detention of violent non-state actors, using what is essentially a "War in Peacetime Paradigm", are these:


Formally speaking, the answer is straightforward. With respect to detention, the end of the conflict by definition spells the end of authority to detain for the duration of hostilities (albeit subject to some reasonable wind-up period). And with respect to targeting, the end of the conflict would preclude invocation of status-based targeting (i.e., targeting individuals based either on their membership in the enemy force or, perhaps, on a continuous-combat function theory that approximates status-based targeting). The question is: would any of that matter in actual practice?
...
... What we do still do is use lethal force, but on close inspection, our uses of force outside of Afghanistan arguably do not depend on the existence of an armed conflict after all. As the Brennan speeches underscored, the government as a matter of policy has adopted constraints that limit the use of force outside the “hot battlefield” to scenarios involving an “imminent threat” to life in circumstances where capture is not feasible (albeit subject to an understanding of that phrase that would better be described as a “continuous threat” standard). This is far more restrictive than the status-based targeting model associated with armed conflict. Indeed, it is at least as restrictive as the boundaries of the self-defense model developed during the Reagan and Clinton years, discussed earlier.
...
Today things are quite different. The capacity for collecting the requisite intelligence has expanded by leaps and bounds thanks to sweeping institutional and technological changes over the past dozen years, and in the same period we have acquired an extraordinary capacity to strike quickly and precisely thanks to armed drones. In short, the practical constraints on using force in self-defense have been removed, and if we find ourselves once more without a claim of armed conflict to support uses of force, we may well discover as a result that the pre-9/11 legal model is much less constraining than commonly assumed. Indeed, one might conclude that there is nothing currently done outside of Afghanistan by way of targeting under the color of the law of armed conflict that could not be done under color of the pre-9/11 self-defense model. Combined with the abandonment of detention as an option, in fact, it makes no sense to talk of a return to the pre-9/11 framework; we already are there in practice.

Ben Wittes finds: "The single most challenging, interesting, and profound comments I have read about President Obama’s speech the other day is this post by Bobby. Drawn from his ongoing book project, Bobby poses the question of what the end of the conflict - sought by the Left for years and dangled before the American people in the President’s speech with passion and at length - really means." That being said, Ben asks a number of questions (and sub-questions):


[1] So the first question is an empirical one: Is the Chesney Conjecture correct? Put another way: Leaving aside residual detention operations and residual combat operations in Afghanistan, can anyone identify U.S. operations anywhere in the world that rely on the AUMF that would not also find support in self-defense law given the US’s interpretation of imminence? If so, what are the set of activities in which the US is currently engaged that will have to stop with the lapsing the AUMF?

[2] If the answer to this question is a null set and the logical conclusion is that we are already at peace (outside of Afghanistan), how do we feel about what we might term a militarily active peace - that is, a peace in which drone strikes and special forces operations take place regularly, a peace that is so minimally different from warfare that nobody (except Bobby) even noticed that we had transitioned from wartime to peacetime?

[3] If the Chesney Conjecture is correct, it follows as well that the current debate over the future of the AUMF - a debate in which Bobby and I have both actively participated - is a bit of a misfire. Rather than asking what new authorization the president may need to conduct the shadow war, the question we should be asking is: What sort of authorization - if any - should Congress give to the executive branch for the routine use of military force in peacetime? If we frame the question this way, is there greater room for agreement between those who have argued against and those who have argued for openness to a new AUMF?

Once one accepts a "militarily active peace" and the "use of military force in peacetime", one is following a "War in Peacetime Paradigm" - which may range from the more peacelike to the more warlike; but which is definitely neither "Peace" nor "War". I'd suggest that the World (and the US with the rest) have been following "War in Peacetime Paradigms" (of varying degrees of peacelike and warlike admixtures) since WWII.

Jack Goldsmith offered an eight-point critical analysis of the particular "War in Peacetime Paradigm" posited in Chesney's argument - snips are the first sentence in each block of Goldsmith's comments:


First, I agree with Bobby’s implication that we are on the road toward post-AUMF uses of military force around the globe justified entirely on the basis of selfdefense and the President’s Article II powers. ...
...
Second, it would be an unprecedented expansion of Article II authority if the scope and scale of current military and paramilitary operations outside Afghanistan today were justified under Article II. ...
...
Third, Ben asks: “[H]ow do we feel about what we might term a militarily active peace—that is, a peace in which drone strikes and special forces operations take place regularly, a peace that is so minimally different from warfare that nobody (except Bobby) even noticed that we had transitioned from wartime to peacetime?” ...
...
Fourth, the stealth self-defensive war that Bobby describes and that I think the administration envisions in a post-AUMF world is even less bounded than the AUMF-war in this sense: force can be used wherever a threatening group meets the (slippery-at-best and auto-interpreted) “imminent threat” threshold, as long as the nation in question consents or is unwilling or unable to prevent the threat. ...
...
Fifth, if it continues at anything like its current scale in a post-AUMF world, war based on Article II would be in even more need of congressional oversight and transparency than the AUMF war – especially in light the unboundedness described above, the Armed Services Committee’s apparent cluelessness about how DOD interprets its authorities today, and the Obama-era innovations of classified annexes to War Powers Resolution reports and the potential exclusion of many drone attacks from the WPR framework altogether. ...
...
Sixth, between the Obama administration’s very expansive conception of “associated forces” (on display in the Armed Services Committee a few weeks ago) and its broad conception of an “imminent threat” that would justify the exercise of Article II uses of force, one can understand why the Executive branch is comfortable with its current authorities and does not want to change them, especially since the administration is allergic to military detention that a revised AUMF might (but needn’t) entail.

Seventh, and speaking of detention, the major limiting factor of an Article II self-defensive war is that long-term military detention by the USG would as a practical matter be off the table, leaving instead the combination of lethal force, criminal process, and rendition that prevailed before 9/11 and that (presumably along with proxy detention and proxy rendition) prevails now. ...
...
Eighth, perhaps I am overreacting because any post-AUMF self-defensive war would be significantly reduced in scale from the current AUMF-war, perhaps back to the pre-9/11 era scale of rare lethal action combined with criminal process, rendition, and the like. ...

These are important issues which should not be limited to in-house discussions among lawyers. They are much more policy and strategy than law. I'd also suggest that the particular paradigm posited by Chesney as likely to be followed (which Goldsmith, and I, dislike) is not the only "War in Peacetime Paradigm" that one can select. The World's had enough small wars since 1945 to allow a wealth of choices.

Regards

Mike

slapout9
05-29-2013, 07:25 PM
I missed the program, but the CNN transcript is here (http://transcripts.cnn.com/TRANSCRIPTS/1305/27/se.02.html).

At its end, these comments:



Something to consider.

Regards

Mike

There are a number of good quotes from the show and it is well worth the time to watch it if you get the chance. One female analyst was actually counseled on her annual review for spending to much time on Bin Laden:eek: then 911 happened.

jmm99
06-21-2013, 06:10 PM
or, you can't have your cake and eat it too.

Jeff Powell (http://law.duke.edu/sites/default/files/cv/powell_0.pdf), a law professor at Duke, served in both the Clinton and Obama administrations in the Office of Legal Counsel:


Deputy Assistant Attorney General (or designate), Office of Legal Counsel, United States Department of Justice (6/93 - 6/94, 1/96 - 7/96);

Principal Deputy Solicitor General, United States Department of Justice (7/96 - 9/96);

Special Government Employee, Office of Legal Counsel, United States Department of Justice (6/94 - 12/95, 9/96 - 1/2000);

Deputy Assistant Attorney General, Office of Legal Counsel, United States Department of Justice (6/2011 - 4/2012).

In his Lawfare guest post of today, Jeff Powell on Targeted Killing and Due Process (http://www.lawfareblog.com/2013/06/jeff-powell-on-targeted-killing-and-due-process/), he addresses one facet of a multi-dimensional problem: the growing efforts to displace traditional military law with "due process" and "human rights" principles. Those efforts go beyond "legalities" to alteration of language itself - e.g., "small wars" become "humanitarian interventions".

But, enough of my rants, and on to Powell's three key paragraphs (with key sentences bolded by me):


It takes only a moment’s reflection to see that the President’s laudable procedures for imposing “strong oversight” over targeting decisions are worlds apart from Hamdi’s “essential constitutional promises” – indeed, it is hard to imagine how a military decision about attacking an enemy combatant could be otherwise. Of course the White Paper does not propose that potential targets be given notice of the government’s possible interest in killing them. Of course it does not contemplate, much less require, that a targeted individual be heard at any time or in any manner as to why the government is mistaken about his identity or activities. Of course it does not provide for a neutral and detached decisionmaker to resolve any factual uncertainty: the ultimate decisionmaker here is the President in his capacity as commander in chief, who (we should hope) is not in the least neutral or detached in carrying out his responsibility for national security. Calling the executive’s own procedures the due process that is meant to check arbitrary executive decisions isn’t merely an erosion of the “essential constitutional promises” but their wholesale repudiation. If Mr. Awlaki was entitled to due process, then his killing violated the Constitution.

Since due process doesn’t apply to a US military decision, in a situation of actual and authorized hostilities, to attack a member of the enemy’s forces who is a legitimate target under the law of war, the Constitution was not in fact violated. But my concern here is to identify the patent error in the White Paper’s and the President’s thinking about due process, because that error is likely to confuse our thinking about the wisdom and morality of targeted killing. The decision to kill a known, identified human being is a brutal one, the action of doing so is ugly to think about, even apart from the fact that sometimes other people die (as Mr. Obama acknowledged with sorrow). This brutality and ugliness are part of the grim reality of war. When we pretend to ourselves that our procedures for making such decisions satisfies the constitutional requirements of due process, we cast a veil of civility and even humanity over something that is inherently violent and dehumanizing.

I am not a pacifist, and I accept that the brutality of war is sometimes unavoidable. But the law’s antiseptic language about the weighing and balancing of interests according to “the traditional due process analysis” that supplies the legal “framework for assessing the process due a U.S. citizen” (I quote from the White Paper) masks, in a deeply misleading fashion, the brutality, the terror and the violence of war – even if we are right to conclude that we should take lethal action against our enemies. It serves no good purpose for the President and his advisors, or for any of us as citizens, to pretend that targeted killing is or can be anything other than the brutality it is.

Less lethal areas are even more prone to admixtures of military and civilian law - searches, for example (and, the issues of electronic surveillance).

Regards

Mike

jmm99
07-27-2013, 04:17 AM
The first two articles contain a wealth of data re: US drone strikes in Pakistan from a number of primary reporting organizations. So, they are worth reading for that reason alone.

However, I'm using them here to illustrate the diversity between the reporting organizations in determining who is and who is not a "civilian". In short, the reported data are within the same metadata ball park so far as total persons killed are concerned; but vary dramatically in allocating "civilian" deaths among the total killed.

First, we have A Meta-Study of Drone Strike Casualties (http://www.lawfareblog.com/2013/07/a-meta-study-of-drone-strike-casualties/) (by Ritika Singh, July 22, 2013), describing the three major Western reporting organizations, as well as one organization reporting for 2011 only and another only critiquing the other organizations' reports:


Five studies have played perhaps the most substantial role in shaping the public debate on civilian deaths from drone strikes. The New America Foundation (NAF) and the Long War Journal (LWJ), both based out of Washington DC, have created databases that are cited often by the media, policymakers, and academics. The Bureau of Investigative Journalism (BIJ) has also done work in this space—work challenging the low estimates of its American counterparts. The Columbia Law School Human Rights Clinic (CHRC) weighed in on the discussion with a recount of the number of drone strike casualties in Pakistan in 2011, using the data provided by these three organizations. And the International Human Rights and Conflict Resolution Clinic at Stanford Law School and the Global Justice Clinic at the NYU School of Law teamed up to conduct an investigation into several aspects of the U.S. targeted killing program in Pakistan and to provide a detailed narrative about the law and the policy behind it for the interested observer. This latter report does not offer estimates of its own, but it does present a critique of the others.

If you are interested, Google Search will take you to their webpages (databases and formal reports).

Here are the bottom lines for the Western big three:


As of this writing, NAF’s casualty counts for Pakistan stand at: 258 to 307 civilians killed, 1,585 to 2,733 militants killed, and 196 to 330 unknown killed. The total number of people killed is 2,039 to 3,370. The rate of the civilian deaths, in other words, ranges between eight and fifteen percent.
...
As of this writing, LWJ claims “2,526 leaders and operatives from Taliban, Al Qaeda, and allied extremist groups” and “153 civilians” have been killed in Pakistan since 2006. This yields a civilian death rate of nearly six percent.
...
As of this writing, BIJ’s number of civilians killed in Pakistan since 2004 runs from 411 to 890 (the number of children killed is 167 to 197). The total killed is between 2,566 and 3,570. This leaves a civilian death rate that ranges greatly—between as low as twelve percent and as high as thirty-five percent.

Note that the totals (adjusted for different reporting periods) are about 3000, plus or minus 500 or so - a fairly low deviation, as opposed to the "civilian" deviations.

For 2011, we can compare four Western studies, with the following results:


Number of Deaths from U.S. Drone Strikes in Pakistan in 2011

Militants
NAF 303 – 502
LWJ 405
BIJ N.A. category
CHRC 330 – 575

Civilians
NAF 57 – 65
LWJ 30
BIJ 52 – 146
CHRC 72 – 155

Unknown
NAF 32 – 37
N.A. for other three

Total
NAF 392 – 604
LWJ 435
BIJ 447 – 660
CHRC 456 – 661

Civilian Casualty Death Rate
NAF 9% – 17%
LWJ 7%
BIJ 8% – 33%
CHRC 11% – 34%

Again, the metadata tends to center for total persons killed, but diverges as to the percentages of "civilian" deaths especially on the high end.

These data were further refined in the second article, Chris Woods of the BIJ Responds (http://www.lawfareblog.com/2013/07/chris-woods-of-the-bij-responds/) (by Ritika Singh, July 25, 2013). BIA has been a major critic of the Obama administration's drone strike policies - and has alleged a relatively high rate of "civilian" deaths (see above).

In this piece, however, Chris Woods notes the relative metadata centering - as to total persons killed - and adds another report and set of sources:


I found your metastudy extremely interesting—particularly on that question of overlaps [between the estimates of the different counting groups]. What should happen—as data publicly available on the drone strikes improves—is that we might expect convergence on the datasets. That does seem now to be taking place with NAF and BIJ—which are far closer than [they were] a year ago. As you note, being dynamic is the key.

For your general [reference,] Oxford Research Group (http://www.oxfordresearchgroup.org.uk/sites/default/files/Working%20Paper%20Pakistan2010-SecondVersion.pdf.) also did a meta-analysis of datasets back in 2011. BIJ’s data hadn’t been published then; and a number of Pakistan organisations still strove to record casualty data. A different time and different conclusions.

Ririka then added the following comments and chart:


The study Woods draws attention to includes estimates from the New America Foundation and the Long War Journal, but is particularly interesting because it compares numbers from other organizations we almost never consider in this debate—several of which are based in the region: the Conflict Monitoring Centre (CMC), the Institute for Conflict Management’s (ICM), The News, Pakistan Institute for Peace Studies (PIPS), Pakistan Body Count, and Strengthening Participatory Organisation (SPO).

http://www.lawfareblog.com/wp-content/uploads/2013/07/CivCas.jpg


As the report points out, the numbers of total deaths “tend to converge in the 800s and 900s, with 483 and 1,184 as outliers.” But a range of 2 to 789 civilian casualties in 2010 in Pakistan suggests that the difference between the estimates really may lie in the terminology—not the casualties.

One can easily create a high or low number of "civilians" by simply jinking around with the definition. E.g., this "rule" defining both "civilians" and "combatants" as follows: Everyone is presumed to be a "civilian", unless it appears beyond a reasonable doubt that the person is an immediate lethal threat. What definition one picks is more determined by one's politics and what policies one feels is better for him or her.

The next post will consider two more articles describing an impasse in the USG caused by different politics and policies.

- to be cont. -

jmm99
07-27-2013, 05:14 AM
Both articles are by Hays Parks.

The first is from 2012, Update on the DOD Law of War Manual (http://www.lawfareblog.com/wp-content/uploads/2012/12/Parks.Manual.pdf). First, we need some background:


The United States military historically has held a leadership position in the development and publication of law of war manuals for its forces and those who command them to ensure compliance with the law of war obligations of this nation. U.S. Army General Orders No. 100, prepared by Professor Francis Lieber during the U.S. Civil War, was accepted and promulgated by President Abraham Lincoln on April 24, 1863. Thereafter the U.S. Army published RULES OF LAND WARFARE in 1914, in amended version in 1917, in an updated version in 1940, and again in slightly amended form in 1944. The Navy (May 1941, in draft form only) and Air Force (1976) published separate manuals. In 1956 the Army prepared and adopted a new manual, Field Manual 27-10, THE LAW OF LAND WARFARE, following U.S. ratification of the four 1949 Geneva Conventions the preceding year.

The project to replace FM 27-10, with an all services Law of War Manual, began in the mid-1990s. It went along fairly smoothly (despite the significant legal changes caused by GWOT, and more than one argument with the Bush White House). By 2010, the Manual was ready for publication.

Then, the Obama Administration's DoS, DoJ and NSC lawyers raised a number of roadblocks - which were not well met by the underqualified DoD civilian lawyer who was newly appointed as editor. We pick up that story in the second article from 2013, Where is the Law of War Manual? Here! (http://www.lawfareblog.com/2013/07/where-is-the-law-of-war-manual-here/):


From the outset it was agreed that the manual would be apolitical—it would be based on the law rather than political arguments inconsistent with the law of war. For example, the working group rejected arguments by some Bush administration officials that the law of war did not protect captured al Qaeda and that “enhanced interrogation procedures,” including waterboarding, should not be banned.

Obama administration political appointees, though, have aggressively sought changes in the manual to conform to their political philosophies or legal arguments in detainee litigation, pushing for rules and principles that vary from longstanding law of war treaty-based terminology and norms previously accepted by Republican and Democratic administrations.

One of the more egregious changes proposed by State Department political appointees and human rights activists on the National Security Council was the removal of a paragraph acknowledging that the law of war is lex specialis—the controlling law in armed conflict. Denying the lex specialis status of the law of war would enable activists to inject human rights law into the manual and onto the battlefield. Deletion of the lex specialis text was apparently not sought on the basis that it was legally incorrect, but, we suspect, because it was inconsistent with their political agenda.

Such a change would impose restrictions on U.S. forces in combat so that deadly force could be used only against an enemy who had refused a surrender opportunity or who posed an “imminent threat.” These requirements would place our fighters on a footing comparable to a police officer in the United States in a peacetime environment and at an extreme and unprecedented risk of being killed by the enemy or facing “war crimes” allegations by human rights activists.

Of course, one should not be surprised that politics - and resultant policies - reared their heads.

The first article provides some more examples of political correctness imposing its will:


Editing responsibilities were assumed by a young DOD attorney lacking military or law of war training or experience.

By way of example of State Department comments: The manual contains a chapter providing an explanation of each of the basic law of war principles. Even though they previously agreed to them, State Department lawyers complained that there was an unduly lengthy discussion of military necessity while not providing sufficient discussion of and emphasis on proportionality.

The law of war principle of military necessity was contained in U.S. Army General Orders No. 100 written by Francis Lieber (e.g., articles 14-16). Because it often is misunderstood, a long explanation was necessary. In contrast, proportionality was not a part of any law of war treaty until 1977, at which time it was adopted on the condition that the term proportionality itself not be used in the treaty text because a vast number of nations – including the former Soviet Bloc, Middle Eastern (other than Israel) and African nations – declined to accept that the principle existed.

Ironically, the manual’s discussion of military necessity was carefully researched and drafted by the late Edward Cummings who until his untimely death in 2006 was the State Department’s most senior and experienced law of war expert. The text had been endorsed by State Department lawyers as well as the international peer review.

Without consultation with the DOD Law of War Working Group, the new DOD editor deleted the discussion of military necessity from the main body of the manual, copying it and inserting it as a footnote, apparently to “reduce its emphasis”; and placed the paragraphs on proportionality ahead of the discussion of the principle of distinction until it was brought to his attention that but for the centuries-old pedigree of the principle of distinction there would be no principle of proportionality.

By way of another example, State Department lawyers, wanted the term “belligerent” to be substituted for “combatant”.

As adopted and used by nations for more than a century, combatant is the accepted law of war term. It was adopted in the Annex to the 1899 Hague Declaration II (ratified by the United States in 1902) and its successor, the 1907 Hague Declaration IV (ratified by the United States in 1909), and Articles 43(2) and 44 of the 1977 Protocol I Additional to the 1949 Geneva Conventions (signed by the United States in 1977 but not ratified due to objections not relating to use of the term combatant). In contrast, the term belligerent is not used in any law of war treaty insofar as reference to individuals is concerned.

These specific examples deal with terms that are material to rules of engagement - and distinctions between combatants, non-combatants and civilians.

I think it is just as well that an impasse has been reached on the DoD Law of War Manual. The gap between the positions in the 2010 final draft and the later changes demanded by DoS, DoJ and NSC cannot be easily bridged. I don't think they should be bridged. The gap between the 2010 final draft and the apparent position of many EU-NATO governments is even larger.

If those issues were solely matters of legal semantics, much less would be at stake. However, the same politics and policies also materially affect strategy and tactics - just as different politics and policies materially affected strategy and tactics in the Bush administration.

Regards

Mike

jmm99
07-28-2013, 06:41 PM
Tools and Tradeoffs: Confronting U.S. Citizen Terrorist Suspects Abroad (http://www.brookings.edu/~/media/research/files/reports/2013/07/23%20us%20citizen%20terrorist%20suspects%20awlaki% 20jihad%20byman%20wittes/toolsandtradeoffs.pdf) (Byman & Wittes, 17 Jun 2013):


The killing of Awlaki as he left a funeral in Yemen put a spotlight on an important question: how does the U.S. government confront an American terror suspect abroad?

For policymakers, the presence of American jihadists in foreign countries presents several tricky policy problems compared with similar foreign terrorists. In this paper, we explore the costs and benefits of several distinct approaches available to the U.S. government in confronting the threat of Americans fighting jihad against the United States from abroad.

These include:

• Targeting suspects with lethal force.

• Capturing terror suspects and trying them in federal court.

• Capturing suspects and detaining them in military custody.

• Assisting the government of other countries to prosecute suspects on their
own.

• Tolerating the activities of the terror suspects.

Also within this paper, we catalog the American citizens abroad who have joined the jihadist cause and operated overseas, focusing on those Americans who traveled overseas to join the enemy and have not attempted to return.

Regards

Mike