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.
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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.
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
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.
of a "US citizen [1] combatant AQ member [2] who has expatriated himself". That uses the simple factual test for Expatriation:
thereby avoiding the legal quagmires of Renunciation of citizenship and Denaturalization.Quote:
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").
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:
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 ?Quote:
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.
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 ?
both critical of the Obama Administration for different reasons - and poles apart:
John Yoo, The Administration’s Strange Reasoning on al-Awlaki (9 Oct 2011)
Andy Worthington, Death from Afar: The Unaccountable Killing of Anwar al-Awlaqi (4 Oct 2011).
I have to say for Andy that he does not ignore legal holdings that are against his position:
but that does not prevent him from hitting at the consequences as he views them (which BTW is OK):Quote:
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.”
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.Quote:
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:
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.”Quote:
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?
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
Posted by JMM,
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"?Quote:
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".
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.
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.Quote:
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 ?
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.Quote:
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).
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 NYT Editorial on al-Awlaki has finally been published, Justifying the Killing of an American (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:
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.Quote:
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 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.
Regards
Mike
The question posed by Worthington, the ACLU and CCR:
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):Quote:
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”?
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.Quote:
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.
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
Taking Bill's points in reverse order:
Expatriation
The answers are given in the hyperlinks in my post, I set out a simple factual test - case 1Quote:
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?
Expatriation (no matter how long) does not = Renunciation of citizenship or DenaturalizationQuote:
of a "US citizen [1] combatant AQ member [2] who has expatriated himself". That uses the simple factual test for Expatriation:
thereby avoiding the legal quagmires of Renunciation of citizenship and Denaturalization.Quote:
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").
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
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.Quote:
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.
-----------------------------------------------------
Matrices and Stuff
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.Quote:
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"?
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.
As to "probable" - more likely than not, viewing all the evidence as a whole.Quote:
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 "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.
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.Quote:
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.
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)
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.Quote:
Where you don't see a dangerous threat, I see a very serious "potential" threat.
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.Quote:
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.
Regards
Mike
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 (2011) (76 pages; free download):
This article will answer many of the questions which readers here at SWC have asked about Titles 10 & 50 operations.Quote:
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.
Regards
Mike
In 2007, Gregory S. McNeal twisted some tails (but not mine ;)) with his Snatch-and-Grab Ops: Justifying Extraterritorial Abduction:
especially given his conclusion:Quote:
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. ...
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 (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):Quote:
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.
(Abstract only online). This will twist a number of tails.Quote:
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.
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 (2011):
This last article also touches on Title 50-Title 10 operations - for which less empirical evidence exists.Quote:
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.
Regards
Mike
The 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
Gov't MTD - Ex 1 - Clapper Decl_09-25-10.pdf
Gov't MTD - Ex 2 - State Secrets Policy Memo_09-25-10.pdf
Gov't MTD- Ex 3 - Leiter Testimony_09-25-10.pdf
Gov't MTD- Ex 4 - Gates Decl_09-25-10.pdf
Gov't MTD - Ex 5 - Panetta Decl_09-25-10.pdf
Declaration of Jonathan Manes_10-08-2010.pdf
Govt's Reply re MTD_10-18-10.pdf
The Jonathan Manes Declaration (52 pages) seems the most useful, as a framework for discussion, in regard to the targeting process.
Regards
Mike
Govt's Reply re MTD_10-18-10.pdf
Gov't MTD- Ex 3 - Leiter Testimony_09-25-10.pdf
Some issues earlier today with the CCR document center.
Regards
Mike
I've cited Ashley Deeks, Pakistan's Sovereignty and the Killing of Osama Bin Laden (May 5, 2011), in my post in this thread, Another ASIL "Insight" - validating the OBL DA. 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 (Ashley Deeks, Columbia Law School; Virginia Journal of International Law, Vol. 52, 2012):
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.Quote:
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.
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):
One wonders what Ms Deeks thinks of combat ROEs which are based on a "certainty" test.Quote:
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]
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.Quote:
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.
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):
Her suggestion that the standard of proof could shift based on the degree of threat has some merit.Quote:
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.
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).
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/raf...#comment-14072
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):
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).Quote:
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.
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
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; Record Part 1; Record Part 2) (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:
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.Quote:
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.
The Emory report, Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law (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):
Don't assume that everyone (including JAs) know of this report.Quote:
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.
cont. in part 2
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:
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:Quote:
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.
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.Quote:
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.
cont. in part 3
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):
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":Quote:
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.
So, "military advantage" is one facet; "civilian presence" is the other:Quote:
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.
Again, the Court looked at "proportionality" in hindsight:Quote:
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.
The Court's incomplete and ex post facto anaysis is likely to have negative impacts on military operations:Quote:
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 Emory report strikes me as a very important document - which is not going to be liked by some of the IHL community.Quote:
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.
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):
A number of writers and prosecutors transit too easily from "civilians killed" to "civilians targeted".Quote:
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.
Regards
Mike
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 (English, 46 Pages; 12 Jan 2012):
The prosecution objected to the brief, Prosecution Response to “Application and proposed amicus curiae brief” filed on 13 January 2012 (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 [PUBLIC REDACTED VERSION] (English, 8 Pages).Quote:
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 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:
Quote:
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.
Quote:
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.
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.Quote:
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.
cont. in part 2
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. He also provides a brief summary of the key facts re: the military operation:
Given facts like this (contested expert opinions), the choice of law by the Appeals panel becomes all important.Quote:
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:
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.Quote:
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.
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.
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):
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.Quote:
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.
Regards
Mike
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 (starting p.12 pdf):
Yet, some have asserted that al-Aulaqi's First Amendment rights were violated.Quote:
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.
Regards
Mike
The full text of AG Holder's speech at Northwestern Law is here, with Bobby Chesney's, 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 and Crimes, War Crimes and the War on Terror, 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."
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).Quote:
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.
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)
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:
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:Quote:
[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.
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:Quote:
[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.
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.Quote:
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.
Regards
Mike
HT to Lawfare. From the The Washington Post: The bin Laden plot to kill President Obama (by David Ignatius, Published: March 16, 2012):
RegardsQuote:
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)
Mike
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.
He recently wrote at Foreign Policy, Fire When Ready (12 Mar 2012), which overall is a good summary of the points covered in this thread re: targeted killings (emphasis added).
His BLUF:
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).Quote:
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.
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:
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.Quote:
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, 83 percent of respondents (including 77 percent of liberal Democrats) 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 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."
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
The recent speech by Ben Emmerson 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
One wonders how much materiality Mr. Emmerson would give to certain brands of Islam as causes of terrorism.Quote:
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.
His Attack on the War Paradigm
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%).Quote:
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.
His War Crime Indictment
The Bureau of Investigative Journalism (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.Quote:
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 Lawsuits vs the United States
Therefore, US and US citizens be forewarned as to what is coming.Quote:
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.
- cont. -
The 2010 UN Report
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".Quote:
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.
The UN Special Investgation Unit
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.Quote:
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.
Biography of Ben Emmerson (at Matrix Chambers, his firm):
Biography of Christof Heyns, Special Rapporteur of the United Nations on extrajudicial, summary or arbitrary executions (at Univ. of Pretoria):Quote:
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)
RegardsQuote:
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)
Mike
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”. 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.
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.
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
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):
Discuss, if you wish, the plusses and minuses of the matrix as writtenQuote:
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)
- 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
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 for the basic concept.
Regards
Mike
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, 118 & 119. The Amicus Brief (by US-UK military law experts) arguing reversal of the convictions is reported here at posts 120 & 121.
Reuters, Hague appeal tribunal frees jailed Croatian officers:
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.Quote:
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)
ICTY, The Hague, 16 November 2012: Appeals Judgement Summary for Ante Gotovina and Mladen Markač:
Thus, the major point made by the US-UK Amicus Brief was sustained by the appellate court and the defendants released.Quote:
...
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.
Regards
Mike
HT to Ken Anderson for, 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 (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 (ASIL Insights, January 18, 2013, Volume 17, Issue 4) (6 pp.), and No One at the Controls: Legal Implications of Fully Autonomous Targeting (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):
Thus, Thurnher is satisfied that a particular AWS will or will not pass muster based on existing law.Quote:
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.
His second article is concerned with the operational commander's responsibilities in controlling the AWS - here, lethal autonomous robots (LARs). He recommends four basics:
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.Quote:
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 DoD has provided a definitive set of principles applicable to these weapon systems: Ashton B. Carter, Deputy Secretary of Defense, “Autonomy in Weapons Systems,” 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,” 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,” 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,” SSRN Working Paper, Draft of December 4, 2012.
William Marra and Sonia McNeil, “Understanding “The Loop’: Regulating the Next Generation of War Machines,” 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, and working draft with footnotes at SSRN here).
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? (a conversation started by Marc-Andre, which deals primarily with Geneva's view toward new weapons technologies).
Regards
Mike
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 (by Greg Miller, 23 Oct 2012):
Bobby Chesney's comments on this story are here, Kill Lists, the Disposition Matrix, and the Permanent War: Thoughts on the Post Article (24 Oct 2012).Quote:
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)
Last week, WP added to the stew with CIA drone strikes will get pass in counterterrorism ‘playbook,’ officials say (by Greg Miller, Ellen Nakashima and Karen DeYoung, 19 Jan 2013):
Bobby Chesney's comments on this story are here, Lethal Force Beyond the Battlefield: The Post’s “Playbook” Article (21 Jan 2013):Quote:
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)
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 (by Greg Miller, 10 Jan 2013):Quote:
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)
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? (18 Jan 2013):Quote:
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)
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 (23 Jul 2012):Quote:
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)
Of course, the viewpoints expressed by DW's experts are based on application of a peace paradigm.Quote:
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)
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. 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".
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
Now, where did that come from ? I'll tell you later.Quote:
Those who belong to armed forces or to armed groups may be attacked at any time.
Several days ago, the NY Times ran a story, Drone Strike Prompts Suit, Raising Fears for U.S. Allies (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:
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:Quote:
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.
John Bellinger also wishes the problem to go away. In a Lawfare piece, New York Times on Noor Khan Lawsuit (by John Bellinger, January 31, 2013):Quote:
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.”
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:Quote:
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?”
...
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.
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 (by Michael Isikoff):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.
The contents of the memo should be no surprise to readers of this thread, the "The Rules - Detaining HVTs and Others" thread, and the "War Crimes" thread, since it employs much the same legal arguments used to justify indefinite detention. Those arguments have already been rejected by the EU countries.Quote:
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.
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.”
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 ...:
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
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.
Mike:
The part that bothered me in the NBC story is the following quote.
To layman she is describing a situation where nobody knows what the law is or why it is and nobody will discuss it.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.
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:
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.Quote:
from David:
Do such laws have international jurisdiction themselves, or is it the result of incorporation into national law?
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 (2013) for the UK view. And, for other readers to hand clap David, he took time to pass me this reference by PM. :)Quote:
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.
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:
Colleen McMahon 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.Quote:
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.
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 (by Raffaela Wakeman, January 2, 2013).
Judge McMahon's 75-page opinion.
Second, Judge Forrest.
Katherine B. Forrest (Wiki)
Federal Judge Enjoins Section 1021 of the FY2012 NDAA (by Steve Vladeck, May 16, 2012)
Judge Forrest's 68-page opinion.Quote:
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 Issues Permanent Injunction in Hedges (by Benjamin Wittes, September 12, 2012).
Judge Forrest's 112-page opinion.Quote:
I haven’t read it yet, but here it is.
This decision has been permanently stayed until the 2nd Circuit Court of Appeals enters its decision. See 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
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-co...odhound-14.jpg
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 (by Eric Posner, 5 Feb 2013):
In the rest of the article, Posner does critique the USG's "war" approach.Quote:
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. ...
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 (by Jeffrey Rosen, 6 Feb 2013):
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):Quote:
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.”
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
Gregory McNeal is back at Lawfare for a series of guest posts. He was linked here in 2011, Kill or Capture - the McNeal View.
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 (by Gregory McNeal, February 25, 2013):
Here are what seemed to me be the high points, starting with:Quote:
... 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. ...
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:Quote:
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. ...
Ultimately, the process depends on the judgment of the decision makers:Quote:
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.
To Be Continued ...Quote:
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.
Regards
Mike
We return to the next installment, Kill-Lists and Network Analysis (by Gregory McNeal, February 25, 2013):
So, we move into finding the Great White Whale, often easier said than done in our real-life ocean:Quote:
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.
When does one take the out the Goose Who Is Laying Golden Eggs; or, for that matter, the Local Hen Who is Supplying Breakfast:Quote:
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.”
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%.Quote:
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).
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:
To Be Continued ...Quote:
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:
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.Quote:
[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.
Regards
Mike
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.
McNeal first considers the data and intelligence that underlies the "baseball card":
The “disposition matrix” has been reported at Lawfare here; as well as being discussed in a number of posts in this thread.Quote:
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 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):
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:Quote:
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). ...
To Be Continued ...Quote:
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. ...
Regards
Mike
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:
The remainder deals with congressional oversight, which is something of a yawn to me.Quote:
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.
McNeal's complete article (127 pages) is available at SSRN, Kill-Lists and Accountability:
The Table of Contents hits its high points:Quote:
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.
All in all, a very worthwhile read applicable not only to drone strikes, but also to more conventional air strikes and infantry direct actions.Quote:
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
Regards
Mike
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 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 with the USG and the American people.
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 (by SEBASTIAN ABBOT, March 15, 2013):
And from BIJ, Pakistan government says ‘at least 400 civilians’ killed in drone strikes ( by Alice K Ross, March 15, 2013):Quote:
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 so the current phase of lawfare goes.Quote:
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. ...
Regards
Mike
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 (ISLAMABAD, 14 March 2013).
Regards
Mike
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.