The Rules - Engaging HVTs & OBL
The direct action against OBL is beginning to generate discussions, which will continue so long as HVTs are out there. This topic has popped up in a number of threads; but not focused on the practical interplay between operations and operational law.
I'll start with a personal observation. Two cablenews interviews with non-active duty Seals have stuck in my mind because of one's rank (O-4) and another's civilian occupation (legislator). Both based their limited "legal" comments on a "law enforcement" (Rule of Law) approach - i.e., the default under the SROEs allowing defense of self and others in the face of a "hostile act" or "hostile threat".
Neither of them mentioned the shift in rules (to the Laws of War) once we have a designated "hostile force" and positive ID of one of its combatant members. Now I'm not jumping on these two Seals because I've got a bigger target who should know better, our to be SecDef.
From On the Legality of Killing UBL Even If He Was Unarmed (and On the Title 50 Issue), by Robert Chesney (4 May 2011) (emphasis added):
Quote:
JIM LEHRER: What did you find out then or since about whether or not Osama bin Laden said anything to the American SEAL commandos?
LEON PANETTA: To be frank, I don’t think he had a lot of time to say anything. It was a firefight going up that compound. And by the time they got to the third floor and found bin Laden, I think it – this was all split-second action on the part of the SEALs.
JIM LEHRER: Was Osama bin Laden armed? Was he shooting back at the SEALs?
LEON PANETTA: I don’t believe so. But obviously, there were some firefights that were going on as these guys were making their way up the staircase in that compound. And when they got up there, there were some threatening moves that were made that clearly represented a clear threat to our guys. And that’s the reason they fired.
JIM LEHRER: And they had orders to fire. In other words, it was clear – it was fine with the United States government that they went in and shot this guy, right?
LEON PANETTA: The authority here was to kill bin Laden. And obviously, under the rules of engagement, if he had in fact thrown up his hands, surrendered and didn’t appear to be representing any kind of threat, then they were to capture him. But they had full authority to kill him.
This is LBS (Lima=Legal + Bravo Sierra) - or just muddled legal thinking.
Actually, Mr Panetta ought to have stuck with his prior statement on the "ROE", We Hear from Mary Ellen O’Connell, by Benjamin Wittes (4 May 2011):
Quote:
BRIAN WILLIAMS: Did the President’s order read capture or kill or both or just one of those?
LEON PANETTA: The authorities we have on Bin Laden are to kill him. And that was made clear. But it was also, as part of their rules of engagement, if he suddenly put up his hands and offered to be captured, then–they would have the opportunity, obviously, to capture him. But that opportunity never developed.
Mr Panetta is a lawyer (JD 1963) and was an Army officer (1964-1966).
----------------------------------
This was a Naval operation at the spear's tip. What were the rules for the, say, 2 Seals who came through the bedroom door, based on the Commander's Handbook on the Law of Naval Operations (2007; NWP 1-14M).
First, some quick posits: 2001 AUMF authorizes armed force vs AQ; OBL is CinC AQ and is a combatant of a force declared hostile.
Then moving to the Handbook:
Quote:
5.4.1 Combatants
Combatants are persons engaged in hostilities during an armed conflict. Combatants can be lawful or unlawful.
The term “enemy combatant” refers to a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” also includes both “lawful enemy combatants” and “unlawful enemy combatants.”
and:
Quote:
8.2.1 Lawful Combatants
Lawful combatants (see paragraph 5.4.1.1) are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).
8.2.2 Unlawful Combatants
Unlawful combatants (see paragraph 5.4.1.2) who are members of forces or parties declared hostile by competent authority are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).
The same rules apply whether OBL is regarded as a lawful combatant or an unlawful combatant. First, the exception:
Quote:
8.2.3 Hors de combat
Combatants, whether lawful or unlawful, who are hors de combat are those who cannot, do not, or cease to participate in hostilities due to wounds, sickness, shipwreck, surrender, or capture. They may not be intentionally or indiscriminately attacked. They may be detained (see Chapter 11 on treatment of detainees).
Not applicable under the facts as posited (door breaching, then a double tap).
Note: I'm now (2309) watching CNN which is running different versions of the facts - among them, OBL daughter is alleging his capture on the first floor and then execution in front of her and others.
What follows applies to door breaching and a double tap.
As to surrender:
Quote:
8.2.3.3 Surrender
[1] Combatants, whether lawful or unlawful, cease to be subject to attack when they have individually laid down their arms and indicate clearly their wish to surrender. The law of armed conflict does not precisely define when surrender takes effect or how it may be accomplished in practical terms.
[2] Surrender involves an offer by the surrendering party (a unit or individual combatant) and an ability to accept on the part of the opponent. The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon — an attempt to surrender in the midst of an ongoing battle is neither easily communicated nor received. The issue is one of reasonableness.
[3] The mere fact that a combatant or enemy force is retreating or fleeing the battlefield, without some other positive indication of intent, does not constitute an attempt to surrender, even if such combatant or force has abandoned his or its arms or equipment.
No requirement exists that a "surrender offer" be made by the attacker. So, subject moves forward - shoot; moves right - shoot; moves left - shoot; moves back - shoot; and doesn't move - shoot. Says "I surrender" - see part [1] above.
A comment from Ken Anderson on Whether IHL Requires an Invitation to Surrender in the Context of an Attack Against a Lawful Target, by Robert Chesney (4 May 2011) (emphasis added):
Quote:
I think there is a move being made by various people like the [UN] Special Rapp to use this as an opportunity to try and re-define the law of attack by inserting into it an obligation to invite surrender that is not part of the law of war. The administration should not take the easy way out and say, okay whatever makes you happy so long as you get to yes on killing Bin Laden. The administration does not actually believe this as a matter of law, I personally doubt it behaved this way in fact in this case, it hasn’t behaved this way in other targeted killings (no air attack can meet this standard, after all), and it won’t in the future. Sliding into this move as a way of avoiding apparently unnecessary debates now simply kicks the can down the road and will end in legal tears for someone. It is far better for the administration to assert its actual legal position on this now, in the strongest factual case it could possibly come up with.
Moreover – and I am pretty sure no one has made note of this yet – if one does endorse even implicitly a “invite surrender” view, the administration will actually have both more incentives to strike from the air with drones – and more criticism. It removes the “he said-she said” over whether the person was invited or attempted surrender, while ratcheting up the legal debate over whether there is an obligation to use human teams in order to invite surrender on the ground. The administration would be undermining how its operational law officers understand the fundamental nature of attack, whether in conventional operations or special ops, by not pushing back hard on this view and rejecting it outright.
Amen, brother, amen.
Lawfare had much more of this topic today, but I just hit the highlights.
Comments on the practical military aspects of all this are welcome. Of course, if you think all of this Laws of War stuff is Bravo Sierra, you're welcome to say that.
The more I think about this event - and the lesser cases of PIDs entering buildings "somewhere", I think of my dad saying not to send a patrol when you can send some 105s. My question is, if you have positive ID and know you will get the target by some kind of "fire mission", why not just eradicate the target if you want the target dead ?
Regards
Mike
Yes, I am also ignorant - of many things
Thank you for the kind words. In answer to your questions.
Quote:
from sw
1. Are you sure that "Handbook on the Law of Naval Operations" applied to this mission? Does the law follow the people (SEALs) or does the location of action determine the governing law?
In default of having the actual "mission order" (more than one document, I'd expect; and a bunch of annexes) and the subsidiary "commander's guidance and intent", we of lower pay grades have to be satisfied with what we can reach: Laws of War as accepted by the US; 2001 AUMF as interpreted (primarily by the DC Circuit); JCS SROEs (the unclassified open-source); and the respective service handbooks on Operational Law (Navy being as good as any under the present circumstances).
Quote:
from sw
2. I'm lazy. Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?
I'm not lazy, but I am busy. So, negat. I'm not asking for "sir, I'll find out, sir"; but I do request the "I'll find out" from you.
I've many posts dealing with the AUMF and its relevance to "kill or capture" missions - all of the Gitmo detainments are based on the same basic legal analysis. Start with this post in War Crimes, Gitmo Update, and read through all the court opinions I cite, as you move to the end of the page.
Then, after understanding the Laws of War as decided by the DC Circuit, do an SWC Advanced Search on AUMF (as key word) and jmm99 (as member). I got 77 posts just now.
You'll learn nothing if I feed you a bowl of Pablum (my baby food; it's awful). My purpose here is not to display my own knowledge (such as it is or is not), but to educate others. Do some work.
Now, I have to run and have a PM conversation with a friend.
Regards
Mike
Hey Bear, follow the Yellow Brick Road
From my link in the first post, On the Legality of Killing UBL Even If He Was Unarmed (and On the Title 50 Issue) - sneaky old ba$tard that I am, I hyperlinked in the OP the first half of the title, which I discussed in the OP - you will find:
Quote:
Finally, apropos of my
post exploring whether the UBL operation was conducted under Title 10 or Title 50 authorities, Panetta was quite clear that it was a Title 50 operation notwithstanding JSOC’s role in actually executing the attack:
LEON PANETTA: Since this was what’s called a “title 50″ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way, that direction goes to me. And then, I am, you know, the person who then commands the mission.
But having said that, I have to tell you that the real commander was Adm. McRaven because he was on site, and he was actually in charge of the military operation that went in and got bin Laden.
Moving on to the post cited, Further Thoughts on Congressional Oversight, the UBL Operation, and the Title 10/Title 50 Issue:
Quote:
Yesterday I
posted some initial thoughts on whether the UBL operation constituted a “covert action” for statutory purposes. If so, the operation would require a presidential finding and notificiation to the SSCI and HPSCI. I argued that the operation was not a covert action, on the alternative theories that the operation was not intended to be denied and that in any event it constituted a “traditional military activity” (TMA being an explicit exception to the covert action definition).....
Some specific statutes cited, etc. - basically War Powers and Congressional Oversight. You are an inquisitive bear, aren't you ? That's good.
----------------------------
Side issue
I'm getting tired wearing a dress uniform, carrying around a slung 63" 1728 Charlesville fusil.
http://www.militaryheritage.com/imag...t%201728_1.jpg
Perhaps, a new avatar of my Troupe de la Marine in the more normal uniform of the Great Lakes - and more "carbined" fusil.
http://www.militaryheritage.com/images/cwm_1.jpg
What think thee, Great White Bear (and anyone else) - still a .69 cal. ball.
Regards
Mike
Yes, I will gladly do this ....
Quote:
from sw
So disregard my question....
"Pal", I'll leave that on the shelf where it belongs.
No regards
Mike
thanks jmm99 for the detailed response
It seems to me from reading Ms. McConnell's article that her argument for engaging OBL under the rules of law enforcement appears to be that he was away from a "battle zone". That seems to be a dangerous precedent to be setting in terms of international law relevant to transnational terrorism. This is saying that armed insurgencies or terrorist groups can, at will, change the set of rules under which they can be engaged by the state actors they fight simply by changing locations or hiding for a while. This would only reinforce the tactical advantage insurgent and terrorist groups have in hit-and-run tactics and erode the strategic advantage government has in having the rule of law on their side.
Why should non-state actors be immune from fighting under the rules of warfare when they openly declare war on states? Since they have no scruples in breaking both the rules of war and civilian law, why should we bend over backwards to grant them legal immunity from reciprocity after murdering thousands of innocent civilians? To limit our rules of engagement so as to increase the enemy's advantage is, in my view, not only misguided political correctness, it is counterproductive to our counter-terrorism efforts.
On a related note, this is making waves this morning:
http://www.express.co.uk/posts/view/...d-were-unarmed
Quote:
According to the defence official’s account, the first Seal team came under small-arms fire from a guest house as they entered the compound. The commandos returned fire, killing Bin Laden’s courier Ahmed al-Kuwaiti and the courier’s wife, who died in the crossfire.
The Seals were never fired on again. As they entered the main residence, they saw a man standing in the dark with one hand behind his back. Fearing he was hiding a weapon, they shot and killed the lone man, who turned out to be unarmed. However, as they moved through the house, they noticed several stashes of weapons. The team then climbed a staircase, where they ran into one of Bin Laden’s sons rushing down. They killed the son, who was also unarmed.
On the third floor, the Seals threw open the door to Bin Laden’s bedroom. One of his wives rushed towards the commando in the door, who shot her in the leg. Without hesitation, the same commando turned his gun on Bin Laden, standing in what appeared to be pyjamas, and fired two quick shots, one to the chest and one to the head.
This really caught my attention. If a combatant is unarmed and in a private residence, but intel indicates that he is likely armed and once inside the compound the squad encounters small arms fire, is it really that surprising that transnational terrorists would be considered armed and dangerous and that the SEALs would react accordingly? Furthermore, if they were going in shooting all that moved (as a lot of liberal commentators seem to insinuate), why would they shoot one of OBL's wife in the leg? What that tells me is that even in the heat of a firefight, they were very professional in trying to keep collateral damage to a minimum.
Just some thoughts. Feel free to let me know if I'm talking out of my ass :wry:
(and the name is not so much meant to be about my nationality as my status as a civilian :D)
Tactical Situation and Legal Situation
Hello Toronto,
As to the tactical situation, I think the facts will keep changing for the simple fact that the media's sources are X steps removed from the original sources, the Seal operators. Of course, we are unlikely to see their after-action reports themselves; but, a week or two from now, may find us with firmer facts - or with a huge media circus as to what the facts "are" (with parsing of the word "are" :)).
Comments about tactics should be reserved to them "that's been there, done that" - e.g, Bill Moore and Polarbear1605 just in this immediate thread; but there is a Bn or so here at SWC that have dealt with residential buildings in one way or the other.
As to the legal situation, let's take the Express story as a hypothetical (leaving out the wife, which needlessly complicates the story; and leaving open the possibility that the final double tap came from two operators, not a material fact anyway):
Quote:
[1]... the first Seal team came under small-arms fire from a guest house as they entered the compound. The commandos returned fire, killing Bin Laden’s courier Ahmed al-Kuwaiti and the courier’s wife, who died in the crossfire.
[2] The Seals were never fired on again. As they entered the main residence, they saw a man standing in the dark with one hand behind his back. Fearing he was hiding a weapon, they shot and killed the lone man, who turned out to be unarmed. However, as they moved through the house, they noticed several stashes of weapons. The team then climbed a staircase, where they ran into one of Bin Laden’s sons rushing down. They killed the son, who was also unarmed.
[3] On the third floor, the Seals threw open the door to Bin Laden’s bedroom. ... the ... commando turned his gun on Bin Laden, standing in what appeared to be pyjamas, and fired two quick shots, one to the chest and one to the head.
Legally, this is about the same situation that I set as a hypothetical one week ago in another thread here, Basic hypothetical and (to include Astan or Pstan), A follow-up. Various comments to those posts also apply here.
Going through the three parts of the legal situation:
1. "...came under small-arms fire". Not material under broad rules[*], though it provides two reasons to shoot. The wife's death introduces the issue of "collateral damage" (a term I dislike, but that is what is used). That gets into another set of rules.
2. "The Seals were never fired on again" - not material to a declared hostile force situation, though I suppose one might say that male + nearby arms = a hostile threat. The key factual issue in a declared hostile force situation is positive ID (PID). The AQ guys don't wear uniforms and are among civilians trying to look like civilians. Which is one factor as to why more civilians have been killed since WWII than combatants.
3. OBL is a PID and can be killed unless he manages to surrender before he is shot. No requirement exists that an attacker make surrender offers.
The foregoing is a simplistic explanation. Life is more complex even under "broad rules" of war. More "restrictive rules" make life even more complex for the attacker.
-------------
[*] Working Definitions
I use "rules" generically, including Laws of War (LoW; aka Laws of Armed Conflict, International Humanitarian Law; including various conventions and some state practices), Rules of Engagement (ROEs, includes Standing Rules of Engagement, SROEs, developed by US JCS), Rules for Use of Force (RUFs; including SRUFs), Rules for Escalation of Force (EOF).
I am using "broad rules" as shorthand for US Wartime rules (Hague + 1949 Geneva + US additions), where kill is allowed if either set of facts exist:
1. The target presents a hostile act or hostile threat and is killed in the defense of self or others; OR
2. The target is positively ID'd as a member of an armed force declared to be hostile - whether the target is then armed or otherwise hostile is not material;
and, where, the burden of making non-combatants and civilians safe is placed on the defenders of the targeted location, not on the attackers.
The rights of the attacker are limited by more "restrictive rules", as in the 2009 San Remo ROE Handbook, which I have to discuss at some point; along with some points asserted by Ms O'Connell in her more formal 2010 article.
For example, the burden of protecting non-combatants and civilians in a building could be cast on the attacker; the declared hostile force rule could be removed; and the target would have to directly participate in hostilities.
In short, under "restrictive rules", the Seal going into the OBL residence might have fewer rights in his favor than I do under Michigan law if I am confronted by a home invader.
Regards
Mike
1 Attachment(s)
No options are off the table,
re: this -
Quote:
from Entropy
So does the AUMF trump the indictment? Or, since the indictment still exists can the President decide which "tool" to use based on his own judgment? In other words, was the decision to try to kill UBL or arrest UBL ultimately a policy decision and not a legal decision?
except for the "extra" CIA stuff - so, this chart still holds as the current USG position (expressly affirmed as to detention by the DC Circuit in many cases; implicitly, those decision affirm the kill option under the AUMF):
Attachment 1466
The red boxes are a combo CIA-DoD effort (Title 50 + Title 10) - a kill result obviously goes no further.
If a capture, with CIA as lead, the agency now has to hand off detention to either DoJ (indictment) or DoD (detention only or military commission trial). As we have seen, these folks can be bounced back and forth between DoJ and DoD. Follow the blue arrows and lines.
Ah, what a Powerpoint Ranger I would have made :D
Good question. The simple answer is that everything is a Presidential policy decision, with some Congressional oversight.
I'll do the opposing view later.
Regards
Mike
The Choice of Law Against Terrorism
as presented by Mary Ellen O’Connell, Robert and Marion Short Professor of Law, Fighting Irish Law (2010; SSM Download) (26 pages).
All quotes below are from pp.4-6 (emphasis added by JMM):
Quote:
It is true that under international law in an armed conflict, enemy fighters may be targeted and killed in situations not permitted in peace. Certain persons may also be detained without trial or tried before military commissions. Many important human rights protections may be relaxed or derogated from in the exigencies of armed conflict. This shift in the law occurs only upon the emergence of armed conflict. It is, therefore, critical to understand what an armed conflict is in international law to make an appropriate choice of law between the law that prevails in peace and the law that may be applied during an armed conflict. This choice between bodies of international legal rules is, in turn, governed by international law. It is not a matter of policy or discretion.
JMM: The first bolded sentence is unexceptionable, but totally depends on the allowable scope of armed conflict. The second bolded sentence is exceptionable - unless one exaults international law over the US Constitution.
Quote:
Under international law the existence of an armed conflict is determined on the basis of certain objective criteria. Prior to the adoption of the United Nations Charter in 1945 a state could declare a legal state of war even without the firing of a single shot. That is no longer the case. Today, we assess facts on the ground to determine the legal state of armed conflict. There must be organized armed fighting of some intensity for armed conflict to exist. This is not an entirely objective standard. The level of intensity is open to subjective assessment. And situations of violence may wax and wane leading to gray areas when situations are not clearly armed conflict. Nevertheless, the restrictive rules on the right to resort to military force as well as the importance of respecting human rights indicate that in such cases, law-abiding states act in conformity with the law prevailing in peace.
JMM: Who is the all-powerful determining "we" ? Hey, I'm a Tonto.
Quote:
This does not mean states are left defenseless against terrorism. Peacetime criminal law and law enforcement methods permit the use of lethal force and stringent punishment of terrorists. Moreover, as will be discussed below, law enforcement methods are far more successful in ending terrorists groups than military force. It must be emphasized, however, that most of the examples reviewed above are not unclear cases. Most occurred far from any armed conflict where peacetime law applied. Under peacetime law, a person suspected of terrorism has the right to a fair and speedy trial before a regular court. Law enforcement authorities may use lethal force but only when absolutely necessary, a standard that the current generation of drones can rarely meet.
JMM: The foregoing is not an assertion of law, but an assertion of the superiority of a specific strategy and tactics - and exclusion of other options.
Quote:
The assessment of facts to determine if peacetime law or the law of armed conflict is the right choice involves the same analysis used in resolving other choice of law questions. Lawyers and judges constantly make choice of law decisions. Choice of law is part of the consideration of every legal matter. In most cases the choice is probably obvious and requires no particular effort.
JMM: This is basically a formalistic approach to the application of doctrinal law to set facts - no fog or friction in that approach - which is Lima Bravo Sierra.
Quote:
A good many issues do require careful consideration, however, and for those we have choice of law rules. Choice of law rules steer us toward the proper law for any particular matter, whether local, national, regional, or international law. If the matter implicates an international boundary, international choice of law rules will guide the choice.
JMM: I've omitted the brief discussion on choice of law between an Indiana seller and French buyer. That example is simply immaterial to the present case. Choice of laws or conflict of laws is and always has been an arena involving both international laws and domestic laws - envoi et renvoi are not that unusual. The ever-present issue to the practitioner (JMM) is which court gets its teeth into the case. Often more than one court gets into the act - and they, acting on supposedly the same choice of law rules, arrive at conflicting results.
Quote:
In the terrorism-related cases discussed above, international law also determines the choice of law. In these cases, international choice of law rules sends us, generally, to the domestic criminal law of the United States, Pakistan, Yemen, and other states. It does not send us to the law of armed conflict.
JMM: I'm hard pressed to find much of the "terrorism-related cases discussed above". I think the word "above" should be "below" (pages after p.6) where the author does cite many cases prosecuting "terrorists" under domestic criminal laws - which do not exclude other options.
A key source to the author is:
Quote:
14 See INTERNATIONAL LAW ASSOCIATION, DRAFT FINAL REPORT OF THE USE OF FORCE COMMITTEE, THE MEANING OF ARMED CONFLICT IN INTERNATIONAL LAW 8 (June 2010), available at
www.ila-hq.org [hereinafter INTERNATIONAL LAW ASSOCIATION, DRAFT FINAL REPORT].
Pdf LINK; also this, The International Law of Drones, By Mary Ellen O’Connell (with lots of ILA links).
Hey, Entropy, an opportunity - :)
Jumping to p.14, where I Law (as determined by ILACUF) replaces CvC, Jomini and everyone else we study:
Quote:
According to a study by the International Law Association‘s Committee on the Use of Force, international law defines armed conflict as always having at least two minimum characteristics: 1.) the presence of organized armed groups that are 2.) engaged in intense inter-group fighting.[63] The fighting or hostilities of an armed conflict occurs within limited zones, referred to as combat zones, theaters of operation, or similar terms. It is only in such zones that killing enemy combatants or those taking a direct part in hostilities is permissible.[64]
Because armed conflict requires a certain intensity of fighting, the isolated terrorist attack, regardless of how serious the consequences, is not an armed conflict.[65]
63 INTERNATIONAL LAW ASSOCIATION, DRAFT FINAL REPORT, supra note 14.
64 The combat zone is a critical concept to the lawful waging of armed conflict. Today, the right to resort to armed force (jus ad bellum) is triggered by an armed attack or Security Council authorization in response to a threat to the peace, breach of the peace or act of aggression. The lawful response to those provocations must be calibrated to be necessary and proportionate in the circumstances. This means the old claim that a state may attack the opponent‘s forces anywhere they are found is no longer supportable. A parallel principle is found in the jus in bello. Combatants may not kill the enemy wherever they find him, but only when reasonably necessary. This means a combatant may kill another person fighting against him in a combat zone, but someone away from the combat, who may be captured, may not be killed. For a more full discussion of these points and the law supporting them, see Mary Ellen O‘Connell, Combatants and the Combat Zone, 43 U. RICH. L. REV. 845 (2009); Christopher Greenwood, Scope of Application of Humanitarian Law, in THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW 45, 61-2 (Dieter Fleck ed., 2d ed. 2008); JUDITH GARDAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE BY STATES (2004); see also infra p. ___.
65 A significant armed attack may trigger the right to resort to armed force but an armed attack is not an armed conflict unless it is launched by an organized armed group and is responded to with the use of significant military force by another organized armed group. Thus the 9/11 attacks were found to be significant enough to trigger a right to respond under Article 51 of the UN Charter (see UN Security Council Resolution 1368) but an armed conflict did not follow until the United States and United Kingdom responded with significant military force in Afghanistan. Afghanistan was determined by the U.S. and U.K. to have been responsible for the 9/11 attacks, thus giving rise to the right to use force against it. For a detailed discussion of state practice and International Court of Justice decisions relevant to this law, see Mary Ellen O‘Connell, Preserving the Peace: The Continuing Ban on War Between States, 38 CAL. W. INT‘L L.J. 41 (2007) and Mary Ellen O‘Connell, Lawful Self-Defense to Terrorism, 63 U. PITT. L. REV. 889, 889-904 (2002).
Comment on the above from a military standpoint.
Regards
Mike
Continuing along with a Sun Tzuian approach;
here continuing to resource the O'Connell arguments in opposition to my conclusions (and the current USG position) ...
Combatants and the Combat Zone, Mary Ellen O'Connell, Notre Dame Law School, January 23, 2009
Quote:
Abstract:
Following the attacks of 9/11, President George W. Bush declared that the United States was in a "global war on terrorism". His administration claimed the wartime privileges to kill without warning and detain without trial anyone suspected of association with terrorist organizations anywhere in the world. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender.
Preserving the Peace: The Continuing Ban on War between States, Mary Ellen O'Connell, Notre Dame Law School, July 22, 2008
Quote:
Abstract:
The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the three primary sources of international law yield important rules restricting the use of force. The rules on use of force, like all international law rules, are binding on states for the same reason the law of any jurisdiction binds - because it is accepted as law by the community.
The following remarks on the rules regulating the use of force are divided into three parts. Part I provides a brief history and overview of the current rules on the use of force. Part II applies these rules to assertions that the United States could lawfully attack Iran today. Part III then discusses why these rules are binding as law and answers arguments to the contrary. These remarks will, therefore, touch on the past, present, and future of the law on the use of force to preserve the peace between states.
The Myth of Preemptive Self-Defense, Mary Ellen O’Connell, Professor of Law, The Moritz College of Law and Associate of the Mershon Center for International Security and Public Policy, The Ohio State University, August 2002 (emphasis added):
Quote:
Conclusion
The international law of self-defense supports the American use of force in Afghanistan. After the devastating attacks of September 11, the United States had the right to defend itself against continuing terrorist attacks mounted from Afghan territory. The United States has no right, however, to invade another state because of speculative concerns about that state's possible future actions. The current international order does not support a special status for the United States or a singular right to exempt itself from the law. To maintain a legal order that restrains other states and to uphold the rule of law, the United States should continue its conservative commitment to limits on the unilateral use of force, and reject a reckless doctrine of preemptive self-defense.
In this almost decade-old article, some commonality does exist (the first two sentences) - but I would present a different editorial slant (vs the rest of her conclusion).
But not here, since that would get into my beliefs summarized as "Never Again, but..."; and require regression back into the later 1970s and what I believed ought to have been done then. What would have happened is pure speculation and that regression will not be made.
Regards
Mike
Another ASIL "Insight" - validating the OBL DA
Pakistan's Sovereignty and the Killing of Osama Bin Laden, By Ashley S. Deeks, May 5, 2011.
This article tends to a Fiddler on the Roof methodology - on one hand, on the other hand; on one hand, on the other hand ... I have long since reached the point where there is no other hand; although, I suppose there is still that "but" in my "Never Again, but ..."
Here is Ms Deeks BLUF:
Quote:
Conclusion
The facts and politics in this case make it unlikely that Pakistan’s defense of its sovereignty will find significant international support. Nevertheless, it would be useful as a matter of international law for states to agree that the “unwilling or unable” test is the correct test for situations such as the U.S. raid against Bin Laden in Pakistan and to provide additional content to that test. Doing so potentially could serve international law’s interests by minimizing legal disagreements at times when political and factual disagreements are running high.
JMM: Frankly, I think these are political questions to be settled in one way or the other by the two states. State action could range from a diplomatic protest to a declaration of war. Here, Pstan elected to protest (from article):
Quote:
In the wake of the successful U.S. military operation, the Pakistan Government objected to the “unauthorized unilateral action” by the United States and cautioned that the event “shall not serve as a future precedent for any state.”[1] Former President Musharraf complained that the operation violated Pakistan’s sovereignty.[2]
[1] Jane Perlez & David Rohde,
Pakistan Pushes Back Against U.S. Criticism on Bin Laden, N.Y. Times, May 3, 2011.
[2] See, e.g., John Bacon,
Musharraf: U.S. Violated Pakistan’s Sovereignty, USA Today, May 3, 2011,
Pstan's remedy under I Law was elected and made by it.
I don't see that process (state to state "interaction") as malign. However, those who would like to see a "World Court" take jurisdiction, are inclined to follow along with the 1986 ICJ Nic Farce (cited in the article):
Quote:
[7] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 194 (June 27) (“The Parties also agree in holding that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defence.”); Yoram Dinstein, War, Aggression and Self-Defense 207-12 (3d ed. 2001); Christine D. Gray, International Law and the Use of Force 148 (3d ed. 2008) (“As part of the basic core of self-defense all states agree that self-defence must be necessary and proportionate.”).
In reality, recourse to any existing (or proposed) judicial system, for determination of what are really political-military questions, will fail because the process is too slow and cumbersome. That is one reason why I do not want us (US) to become involved in an international Bleak House.
Regards
Mike
How could one argue with ....
a Marine named "Butch" ? :D
I read it and also thought it was a good article covering the basics that a rifleman should know (I'd skip the Latin "jus in bello" - right in war):
Quote:
The law pertaining to the conduct of hostilities (jus in bello), which has developed since antiquity and includes certain provisions of the modern Geneva and Hague conventions, permits the sanctioned killing of an opponent in an armed conflict, regardless of whether he is armed at the moment he is engaged. So long as the opponent meets the minimum criteria to be regarded as a combatant (even an unlawful combatant), he may be engaged with deadly force, even if he is separated from his weapon. He may be killed while sleeping, eating, taking a shower, cleaning his weapon, meditating, or standing on his head. It is his status as an enemy combatant, not his activity at the moment of engagement, which is dispositive.
So, good job, Butch :)
--------------------------
As to the question (mostly outside of my ballpark):
Quote:
Can anyone give me an example of how our military generals get into trouble at the strategic level mixing the two?
The Phoenix program (and SVN Pacification in general) opened itself up to criticism, as one factor, by treating VCI cadres as "civilians" (RoL) - unless they were themselves armed or accompanied by armed troops (LoW). Thus, if those VCI "civilians" were killed in the course of an operation, a "war crimes" charge was already halfway home. Of course, Phoenix (a mix of "Title 10" and "Title 50") was not a purely military program - so it is not a prime example in answer to your question.
Regards
Mike
Killing or capturing the rat ....
er.., rather the mouse.
From HuffPost:
Quote:
SHODDY RAT REMOVAL IN DIRKSEN CAFETERIA: WHERE'S THE HOPE AND CHANGE?
Amanda Terkel was on the Hill today for, you know, reporting and stuff. While there, she witnessed just what has become of pest control in the NOBAMA administration. Amanda writes in: "There was a mouse in the Dirksen dining room today! We noticed it running around by our table and very quickly picked our handbags off the ground. One guy wasn't paying attention and the mouse nearly ran right over his feet, until everyone started to making yelping noises. I was about to take a picture of it (for Twitter) until a guy came over, stomped on it, killed it and then scooped it up and took it away. Everyone was so grossed out."
Capitol officials say the mouse was given a burial in a toilet in accordance with its religious custom, however there is no documentation of it. Also, there is a rumor that Glenn Greenwald is finalizing a scathing rebuke of the operation, maintaining that the mouse should have been captured.
And so it goes in Wonderland.
Cheers
Mike
Obligations of the "Neutral Nation"
The legal positions (definitely plural) are described in Pakistan's Sovereignty and the Killing of Osama Bin Laden, by Ashley S. Deeks, referenced in my post #21 above.
My own analysis starts with a first proposition that India, Pstan, Astan and the US are all 1949 Geneva states; have not accepted 1977 AP I and AP II in toto; and accept the Hague regulations. My second proposition is that a 1949 Geneva nation may engage in an armed conflict with a non-state actor (a "Power" in the conflict, which has an option to accept and apply 1949 Geneva under Common Article 2 and generally will come under Common Article 3).
The third proposition is that the Hague regulations impose duties on a neutral state, Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The Hague, 18 October 1907:
Quote:
Art. 2. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.
Art. 3. Belligerents are likewise forbidden to:
(a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus forthe purpose of communicating with belligerent forces on land or sea
(b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages.
Art. 4. Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents.
Art. 5. A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory.
From that obligation of the neutral Power, follows the conclusion found in our FM 27-10, The Law of Land Warfare:
Quote:
520. Effect of Failure to Prevent Violation of Neutrality by Belligerent Troops
Should the neutral State be unable, or fail for any reason, to prevent violations of its neutrality by the troops of one belligerent entering or passing through its territory, the other belligerent may be justified in attacking the enemy forces on this territory.
Of course, simply because you have a hunting license does not mean you should kill everything in the forest.
The real question is not legality, but the likely response - diplomatic protest vice nuclear warhead.
Regards
Mike
This Week at War: Send in the Lawyers?
The question at the head of Bob Haddick's SWJ column today.
Damned straight ! Fire mission !:
http://council.smallwarsjournal.com/...0&d=1274888764
I'll fire the touchhole to blast forth the Lima Bravo Sierra - or, as pictured, the Lima Foxtrot Sierra. :D
Seriously, I question any suggestion that AG Holder and LA Koh should embark on a lengthy defense of the legal justification for the OBL mission and result. Both of them, before they moved from the private sector to the Obama administration, were dead set against primary reliance on using the Laws of War against "terrs". At some point, they will get wobbly knees.
Ken Anderson, Should John Brennan or Eric Holder Simply Have Quoted Harold Koh?, and UN Special Rapporteurs Demand Information to Justify OBL Killing, and What Holder Should Have Said and Koh Should Say (long version); and John Bellinger, Bin Laden Killing: the Legal Basis (very short version) do a vastly better job because they are writing what they have written before.
Bob asks another question: "The SEALs did their job. Will the lawyers now do theirs?" The jobs are not remotely comparable. That being said, the small legal contingent at SWC is trying. Is our readership getting it ? I can't tell without feedback.
Regards
Mike
A Suggested Feedback Topic - Your "Standard of Proof"
I do want feedback. However, it would help if I spelled out the type of feedback that I think would be helpful to this topic - in general, as applied to future "kill or capture" missions.
Primo: The following are questions for non-lawyers. The number of lawyers around here are less than two handfuls of fingers.
Here's the primary question:
Quote:
What standard(s) of "proof" should be used by an operator in a "kill or capture" mission ?
The standard of "proof" could be different for a "kill" vice a "capture".
First, some "working definitions".
As to the "Facts" ("Proof"):
Quote:
Facts of the Event - all "evidence" (what a non-lawyer would take as material and credible) known to the operator before and during the event.
Facts of the Case - all evidence admitted in a subsequent proceeding to investigate or determine the event's legality.
In terms of the operator, the Facts of the Event should be the primary test since that is what he knew at the scene. The operator cannot be blamed for what he did not know (such as after-acquired evidence), or what is excluded by the Rules of Evidence. However, after-acquired exculpatory evidence should be considered - if afterwards, there is a "Case".
As to the Standards of Proof (as argued in Gitmo capture-detention cases - in my "more formal" Lima Bravo Sierra terms - OK, a concession to Stan :D):
Quote:
1. Preponderence of the evidence - "advance the ball to the 50 yard line + a nose"
2. Clear and Convincing Evidence - "advance the ball to usually successful field goal range."
3. Beyond a Reasonable Doubt - "advance the ball to the red zone or first and goal."
The higher standards (2 & 3) have been argued by detainees in the Gitmo habeas cases; and have been rejected by the DC Circuit in a number of cases. The standard used by that court has been "1. Preponderence of the evidence" (i.e., it is more likely than not that the captive-detainee was a "bad guy").
Note that, if "preponderence" is not met, it is more likely than not that the target is NOT a "bad guy".
The DC Circuit has suggested that a different, less restrictive standard might apply in capture-detention cases. Perhaps, some sort of "reasonable suspicion" standard might be developed - say, advancing the ball to somewhere between the 20 and 50 yard lines. In short, capture, detain and investigate (to reach or not reach the "preponderence standard"). Consider that possibility in your analysis.
Again, the standard of proof need not be the same for "kill" and for "capture".
------------------------------
Here is why a Standard of Proof, consistent with reasonable military conduct employed by the operator, is important. It is so Neal Puckett or someone else can assert a Rule 916 Justification Defense in the operator's court-martial.
How to Keep Military Personnel from Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, Lieutenant Colonel W. A. Stafford, United States Marine Corps, Assistant Staff Judge Advocate, United States Southern Command, Miami, Florida (NOVEMBER 2000 20 THE ARMY LAWYER • DA PAM 27-50-336)
Quote:
In addition to the defenses of self-defense and defense of others, military criminal law allows defenses of “legal duty” and “obedience to orders” as justification for homicide and assault.[194] However, to meet the justification of “legal duty,” the duty must be “legal” and “imposed by statute, regulation, or order.”[195] Similarly, the defense of “obedience to orders” fails if the accused subjectively or objectively knew the orders were unlawful.[196] Consequently, if the Standing ROE or Rules of Deadly Force are not grounded in law, a serviceperson could be held liable under the Uniform Code of Military Justice for exceeding the law.[197]
194. MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 916(c)-(e) [hereinafter MCM]. Under military law, homicide and assault are justified in self-defense and defense of another based on a reasonable apprehension that death or grievous bodily harm is “about to be inflicted” wrongfully. See id. R.C.M. 916(e).
195. Id. R.C.M. 916(c), discussion. “A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful . . . . The duty may be imposed by statute, regulation, or order.” Id. (emphasis added).
196. Id. R.C.M. 916(d). “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” Id.
197. If a killing or assault under the ROE or Rules of Deadly Force is unlawful, and the defenses of self-defense, defense of others, legal duty, or obedience to orders do not apply, a military member could be found guilty of murder or assault. See UCMJ arts. 118(b), 128; MCM, supra note 194, R.C.M. 916(c)-(e). Under the UCMJ, the elements of murder with “[i]ntent to kill or inflict great bodily harm” are: “(a) That a certain named or described person is dead; (b) That the death resulted from the act or omission of the accused; (c) That the killing was unlawful; and (d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.” UCMJ art. 118(b)(2). The elements of “[a]ssault consummated by a battery” are “(a) That the accused did bodily harm to a certain person; and (b) That the bodily harm was done with unlawful force or violence.” Id. art. 128(b)(2). Murder with intent to kill or inflict great bodily harm carries “such punishment other than death as a court-martial may direct,” including life imprisonment, a dishonorable discharge (for enlisted) or dismissal (for officers), and forfeiture of all pay and allowances. Id. art. 118(e). Assault carries a maximum punishment of dishonorable discharge, total forfeitures, and ten years confinement (for “[a]ssault in which grievous bodily harm is intentionally inflicted . . . with a loaded firearm”). Id. art. 128(e).
I don't know "why" many of these guys who write about combat rules are USMC; but they are (Mark Martins, of course, being a very notable exception).
Opinions about a specific event can differ, PBS, Rules of Engagement (eight interviews with Bing West, Josh White, Gen. James Conway, Neal Puckett, Lt. Col. David Bolgiano, Tim McGirk, Lucian Read, Gary Solis) - Full interview with Gen. Conway. Da Bear will have comments on this aspect of Kilo Coy.
My conclusion is that it is the job of the superior military officers (not their lawyers) to bring clarity to the rules. Lawyers can draft clear rules only when their superiors submit clear intent and guidance. To be blunt: A lawyer who is given free rein by his client (who then abdicates the scene) has a fool for a client.
-------------------------------------------------------------
Now, our short case study - where clarity in spelling out the ROEs was not a military virtue (in the Corps, no less :().
IRAQ: To shoot or not to shoot is the question, July 2, 2008 (LA Times):
Quote:
In the end, the criminal case against Marine sniper Sgt. Johnny Winnick (pictured) may boil down to the simplest but yet most confounding question facing troops in Iraq: When can a Marine or soldier use deadly force against a suspected insurgent?
It's a question not even supposed experts can agree on. During the preliminary hearing completed Wednesday, a Marine lieutenant testified that he asked two majors — one a lawyer, the other a battalion executive officer — and got contradictory explanations.
Winnick is charged with manslaughter and assault for killing two Syrians and wounding two others.
Winnick says he opened fire because he believed the men were planting a roadside bomb, but no bomb was found. His superiors say he lacked the "positive identification" and "reasonable certainty'' needed to squeeze the trigger.
But what do those terms mean, particularly for snipers whose job is to kill the enemy from ambush at long range?
Winnick's attorney, Gary Myers, tried to get one of Winnick's fellow snipers to define "reasonable certainty." The young Marine said that, well, reasonable certainty means being reasonably certain.
"This is all words," said an exasperated Myers.
An officer testified that reasonable certainty means being "85% certain." Another said it means being "pretty damn sure."
A Pentagon expert [JMM: David Bolgiano] called by Myers disagreed with the "85% certain" rule. He thinks young troops are being given confusing and contradictory guidelines by their superiors. He's written about his concerns in a tome titled "
Combat Self-Defense: How to Save America's Warriors From Risk-Adverse Commanders and Their Lawyers."
What Standard(s) of "Proof" (expressed in your terms; not necessarily in "legal terms") would you like to see in "kill or capture" missions. E.g., you might suggest one standard for "kill" and another for "capture".
This question (IMO) is probably best answered by those with combat experience of one kind or the other; although as Jedburgh long ago advised me - let the thread go where the thread goes.
Regards
Mike
Legal Adviser Koh's Opinio Juris Statement
Seems a bit odd that this was released as a blog post, but in any event, DoS Legal Adviser Harold Hongju Koh affirmed his March 25, 2010 ASIL speech; and went on specifically (reparagraphed to point up Mr Koh's five points):
Quote:
Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda.
In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force.
By enacting the AUMF, Congress expressly authorized the President to use military force “against … persons [such as bin Laden, whom the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 …in order to prevent any future acts of international terrorism against the United States by such … persons” (emphasis added).
Moreover, the manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way.
Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.
This is really OK - and Mr Koh's knees did not wobble - in his exclusive reliance on the Laws of War.
Regards
Mike
Back to the "Standard of Proof" ....
as evidenced in The MMRMA Deadly Force Project, MMRMA = Michigan Municipal Risk Management Authority, the insurer for many municipalities.
As Legal Adviser Koh's statement makes clear, OBL was targeted because he was part of a force declared hostile (see this post for SROE ref). PID (that he was he) was sufficient to justify "shoot".
The Deadly Force Project involved a multi-scenario simulation geared to civilian law enforcement. I can't claim any sort of personal experience with those MI departments (Grand Rapids Police Department, Ingham County Sheriff’s Department, Kent County Sheriff’s Department, Livingston County Sheriff’s Department, Livonia Police Department and the Southfield Police Department):
Quote:
Each participating officer/deputy was randomly subjected to a total of three scenarios, with one of each of three types of scenarios:
• Robbery-In-Progress
• Burglary Alarm-In-Progress
• Mugging-In-Progress
Of these three scenarios listed above, all officers were also randomly exposed to three different outcomes of each scenario [JMM: all started with subject's back to officer and hands at waist level of subject's front; then an about face to confront officer]:
• Suspect empty-hand surrender
• Suspect surrender with (non-weapon) object in-hand
• Suspect shoots at officer
To further determine whether outward appearance might influence a participant’s tendency to use deadly force, we also embedded random variations of suspect attire in the scenarios. In all scenario varieties, suspects were filmed in both “dress” and “punk” attire. “Dress” attire was usually a shirt and tie, often with a dress jacket or coat as an outer garment. “Punk” attire varied from individual to individual, based on what actors brought to the film session. Clothing ranged from blue jeans, hooded sweatshirts and leather jackets.
An important finding from the study was lag-time, as well as a definite speed up in the officer response time depending on how serious the situation (robbery > mugging > burglery) was perceived by the officer:
Quote:
As one might anticipate, the lag-time between when the officer made his/her decision to fire and when the initial shot is fired has critical implications. If an officer finds him/herself behind the reactionary curve in a rapidly evolving situation, the lag-time associated with decision-making can allow the suspect to fire one or more shots at the officer before fire can be returned by the officer. Another critical lag-time consideration becomes manifest when an officer fires at a person who ultimately becomes known to be an unarmed person. As suspects turn toward the camera (officer) they may appear to be armed as the turn is initiated - the suspect’s hands may be clenched and/or positioned at or near waist level. However, since the officer’s decision to fire at the suspect predates the subject being shot .25 seconds or more, the officer can (and easily does) shoot the suspect as he/she is raising his/her hands into a “surrender” position. This was a frequent and somewhat unanticipated outcome in many of the shootings that involved “unarmed” suspects; suspects getting shot while “surrendering.” The officer typically has 1/3 of a second or less (from a critical juncture in each scenario) to decide whether or not to employ deadly force, and then to apply that force, before he/she risks being “shot.”
Those officers who managed to shoot armed suspects before the suspect was able to fire seemed to have elected to use deadly force before it could be clearly determined that the suspect did, in fact, have a handgun. This tendency to employ deadly force “preemptively” was at the core of our objective to quantify when such actions were objectively reasonable. As anticipated, most officers found themselves firing after the suspect fired his/her first shot at the officer.
Officer’s Reaction to When Suspect Fires - Frequency
Officers shoots after subject shoots - 61.44%
Officer shoots before subject shoots - 38.56%
As one might expect, officers seemed more vigilant and situationally postured when they were informed that they were responding to a forcible felony-in-progress. Participants typically had their handguns drawn sooner in the robbery scenarios and were more inclined to utilize the cover that was afforded to them. When handguns were drawn and used in conjunction with a verbal challenge in the robbery scenarios, participant muzzle dispositions were notably higher (i.e., more elevated toward the suspect). And yet, even this higher state of situational readiness seemed to offer little more than a statistical “dead-heat” to the suspect’s first shot fired.
The unarmed shoots became the centerpiece of the study's analysis:
Quote:
Inter-Agency Shooting Variations
The 307 officers/deputies participating in this study shot a total of 117 unarmed suspects – a frequency of 38% (0.3811). However, there was a significant difference between one agency on the low end of the frequency scale and agencies on the higher end. It should also be noted that the agency with the lowest frequency of participants shooting unarmed suspects and the agency with the highest frequency of unarmed suspects shot were both largely classified as being “urban” agencies. (See table below)
AGENCY, PARTICIPANTS, UNARMED SUSPECTS SHOT, FREQUENCY
1 76 18 24%
2 46* 18 39%
3 51 20 40%
4 38* 16 42%
5 54* 24 44%
6 43 21 49%
*Indicates that individual participants shot more than one unarmed suspect
The question will undoubtedly arise; “What noted differences were there between the agency with the lowest frequency of shootings (of unarmed suspects) and those with the highest frequency?” The answer, simply put; “It was a difference in training.” (See “Training Implications”)
The aggregate 38% unarmed being shot, and the aggregate 38.6% officer shoots first, correlate.
The range from 49% unarmed shoots to 24% unarmed shoots can be superimposed on a rough legal standard - not addressed by the study as such. The 49% unarmed result just accords with "preponderence" (more likely than not, or 50 yards and a nose). The 24% unarmed result reaches into what I would call "clear and convincing evidence". However, that result was a definite outlier. Why ?:
Quote:
As was previously noted (“Inter-Agency Shooting Variations”), the distinct inter-agency differences relevant to shooting unarmed suspects seem directly attributable to training. There were no substantive differences in agency policies pertinent to the use of deadly force.
The one agency that required its personnel to complete a “Use of Force Report” whenever unholstering their handguns had a 44% rate of frequency in engagement of unarmed suspects. Its participants did typically unholster their handguns more slowly than participants from other agencies, but that didn’t seem to influence their overall judgment in the research scenarios.
The agency with the lowest frequency of unarmed suspects shot (24%), judging from all informal participant debriefs, had the most rigorous scenario-based training regimen. Virtually every participant interviewed from that agency stated that he/she had had one or more force-on-force training sessions in the last 12 months. In itself, this might not seem evidence adequate to suggest that training was the most influential factor, but it is the only factor that clearly stood out from all others.
We were impressed by the overall professionalism exhibited by participants afforded to us by all agencies. Scenario-based training was evident to some degree in all participating agencies. However, in all but one agency, it seemed much more intermittent rather than routine.
All of this accords with e.g., Mark Martins' articles (from the 1990s to today) that ROEs must be taught in the context of tactical-based scenarios - and cannot be "legislated".
The policy implications of the study should be obvious - in the following, "immediate" roughly equates to a "clear and convincing" > "beyond a reasonable doubt" stuation, and "imminent" equates to a "preponderence" > "clear and convincing" situation:
Quote:
As many aforementioned findings suggest, many police shootings are “gray-area” events that often reflect split-second differentials between in-policy and out-of-policy shootings. The almost universal embrace of the “imminent threat” standard, in our opinion, is warranted and court-defensible.
For clarification purposes, “immediate threat” scenarios are “must-shoot” incidents, and therefore generate the least amount of post-incident controversy. When an officer responds to an immediate threat, he/she is either reacting to someone lunging with an impact or edged weapon, looking down the barrel of a suspect’s gun, or dodging bullets that have already been fired.
We don’t require that officers wait until a threat has manifested to that level before he/she can react with deadly force. An insightful operational definition of what “imminent danger” is was expressed by the New Jersey Division of Criminal Justice in 2000;
Imminent Danger:
• Threatened actions or outcomes that may occur during an encounter
• Threatened harm does not have to be instantaneous
This concept affords officers a large degree of latitude in their interpretation of events – as does the Graham v. Connor “reasonable officer” standard.
Koh: "...bin Laden continued to pose an imminent threat.."
The MMRMA Deadly Force Project was the most comprehensive found by me after some InterWeb searching.
Regards
Mike
Revisions to the Title 10 and Title 50 Interface
Direct actions (whether by drone or by men) are continuing - with a possible success being registered here, Mohammad Ilyas Kashmiri, commander-in-chief of the Kashmiri militant group Harakat-ul Jihad-i-Islami (purportedly on 3 Jun).
The Obama WH has been divided about drone strikes - and the degree to which Pakistan should be involved in the process, Administration Internal Divisions Over Drone Strikes in Pakistan? (by Ken Anderson at Volokh):
Quote:
According to the article, continuing the program as it stands has prevailed for now, with more review down the road. But the article includes some additional tidbits, including a remark in passing that although the Pakistani government puts the civilian casualties of drone strikes in the hundreds, the CIA puts it at around 30. The article also adds that the Pakistani government would like to have equal say in the agreed target list:
Quote:
U.S. Ambassador to Pakistan Cameron Munter, backed by top military officers and other State Department officials, wants the strikes to be more judicious, and argues that Pakistan’s views need to be given greater weight if the fight against militancy is to succeed, said current and former U.S. officials.
Defenders of the current drone program take umbrage at the suggestion that the program isn’t judicious. “In this context, the phrase ‘more judicious’ is really code for ‘let’s appease Pakistani sensitivities,’ ” said a U.S. official. The CIA has already given Pakistani concerns greater weight in targeting decisions in recent months, the official added. Advocates of sustained strikes also argue that the current rift with the Pakistanis isn’t going to be fixed by scaling back the program.
Since the future direct actions will occur other than in Pakistan, larger and future issues hinge on Title 10 and Title 50 Interface (under domestic law) and the significance of International Law to those issues.
On the "interface", Washington Post’s David Ignatius writes, The blurring of CIA and military:
Quote:
One consequence of the early “war on terror” years was that the lines between CIA and military activities got blurred. The Pentagon moved into clandestine areas that had traditionally been the province of the CIA. Special Forces began operating secretly abroad in ways that worried the CIA, the State Department and foreign governments.
The Obama administration is finishing an effort to redraw those lines more carefully, issuing a series of new executive orders (known as “EXORDS”) to guide the military’s intelligence activities, sometimes through what are known as “special access programs,” or SAPs.
The power of combining CIA and military resources was shown in the May 2 raid that killed Osama bin Laden. The firepower came from the Navy SEALs, a Special Forces unit that normally functions under the Title 10 war-fighting authority of the military. Because the SEALs were operating inside Pakistan, a country with which the United States isn’t at war, the CIA supervised the mission under Title 50, which allows the agency to conduct “deniable” activities overseas.
The system worked in the Abbottabad raid. But over the past 10 years, there have been instances when crossing the traditional lines created potential problems for the United States. It’s especially important to understand these boundaries now as Gen. David Petraeus prepares to take over as CIA director. If the rules aren’t clear, people at home and abroad may worry about a possible “militarization” of U.S. intelligence.
More in depth by Ken Anderson (6 Jun), Law and Order - Targeted killing is legitimate and defensible (emphasis added):
Quote:
Much more important, however, but also much harder to convey, is the importance of engagement with international law. The time for saying with a shrug, of course it’s illegal or extralegal, is long gone. Needed, rather, is for the United States to articulate on a regular basis its views of why it thinks its counterterrorism programs are consistent with international law. State Department legal adviser Harold Koh, to his credit, has done so both in the case of targeted killing using drone warfare, in a widely remarked speech last year, and more recently in a short statement on the bin Laden killing to the international law blog Opinio Juris.
....
It is quite true that wide swaths of critics won’t be satisfied; that’s not the point. The international law community will never be satisfied, and whatever one gives them, if it’s done merely to appease them, they will take as weakness. International law critics will speak with utter confidence and great bluster. “International law” is better understood not so much as a unified field with definitive answers but as a set of more and less “plausible” interpretations, in a world of sovereign states in which there is no final adjudicator to say yes or no. It is fused with diplomacy, politics, and real-world consequences.
The United States should seek to convey that it has a considered, plausible view of the law, whether shared by the critics or not. That view will achieve public legitimacy in no small part because the U.S. government has the confidence to articulate it and defend it as such. This is an approach to the public articulation of international law begun by then-State Department legal adviser John Bellinger in the later years of the Bush administration, and while it requires being willing to weather a great deal of criticism and sometimes abuse, it is the right approach.
The bolded sentence seems to me to be a practical definition of International Law.
Regards
Mike
The Policy Debate underlying the US Rules
Ken Anderson covers a number of sources in the on-going policy debate underlying US use of drones, at Opinio Juris, Tactically Precise, Strategically Incontinent ? (by Kenneth Anderson, 25 Sep 2011).
The principal sources cited are the following:
Wash. Post, The price of becoming addicted to drones (by David Ignatius, 21 Sep 2011).
Report of the Special Rapporteur (Philip Alston) on extrajudicial, summary or arbitrary executions - Addendum: Study on targeted killings (28 May 2010).
Remarks of John O. Brennan, at the Harvard Law School (16 Sep 2011) [John Brennan, WH counterterrorism adviser, argued that U.S. legal authority to use force against al-Qaeda wasn’t “restricted solely to ‘hot’ battlefields like Afghanistan” but could be expanded to other theaters “without doing a separate self-defense analysis each time.”]
Three Quick Comments on David Ignatius’ Critique of Drones in Today’s Washington Post (by Kenneth Anderson, 22 Sep 2011) - making it clear that we have experienced and are experiencing something of a "counterterrorism" vice "counterinsurgency" dichotomy:
Quote:
Second, the primary theorists of blowback in the Afghanistan war are theorists of counterinsurgency, and the specific application of the blowback thesis is that even if the counterterrorism drone policy works on its own CT terms, it undermines the counterinsurgency war because it damages the ability to win over populations. The extent to which the campaign actually has those effects can be debated. That has to include that asking populations if they’re resentful is not a purely neutral measurement of social science; it tends to signal to them that they get advantages out of being resentful. An awful lot of blowback has to do with the expectations of the population. Telling the local population (as the US did, for example, early on in the Iraq war) that if our war has not made them happy, then it is our fault, is very much a mechanism for foolishly raising the bar of expectations. But David Kilcullen and Andrew Exum, in their writings, for example, are talking about counterinsurgency, and counterterrorism’s effects on that. The Obama administration’s whole effort, however, is to get out of counterinsurgency, and quite rightly is worried far less about blowback arising from a switch in strategy to transnational CI.
Ignatius keeps talking, in column after column, about our “addiction” to drones. Why, instead, doesn’t he talk (as the Obama administration implicitly does) about our “addiction” to counterinsurgency, and see drones as the “cure” for that? It’s not as if counterinsurgency warfare in Afghanistan doesn’t have plenty of downsides and its own forms of blowback and bad unanticipated consequences, as the Obama administration and, for that matter, most of the American people, see it. Downsides starting with no end in sight and no clear avenue to a victory that allows an exit. The Obama administration sees counterterrorism as a realistic and, to date, functioning strategy against our actual long term adversary, and an exit for our addiction to the cul-de-sac of counterinsurgency, and why isn’t it right about that?
Wash. Post - Editorial Board Opinion: It takes more than drones (24 Sep 2011), "CT" + "COIN":
Quote:
In our view the legal situation is straightforward. It’s been clear for more than a decade that al-Qaeda is a transnational organization that seeks to wage war against the United States from multiple foreign bases; especially in areas where national sovereignty has broken down, a U.S. military response is justified. It would be helpful if Congress would clarify this by passing legislation that renews the authorization of military force and stipulates that it can be used against al-Shabab and other al-Qaeda branches.
The harder question is whether the administration’s increasing reliance on drones is weakening what should be a much broader strategy. While militants can and should be picked off by targeted strikes in Yemen and Somalia, neither country will cease to be a source of terrorism until it can be stabilized under a responsible government. The United States has been trying to encourage a political settlement in Yemen that would end months of near-anarchy, and has been helping to fund and train Somalia’s transitional government and security forces. But the efforts have been underfunded and underambitious.
Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a ‘Legal Geography of War’ (Kenneth Anderson, 27 Apr 2011):
Quote:
Abstract:
This brief policy essay examines the evolution of the argument around the proposition that there is a “legal geography of war.” By that term is meant whether the law of war applies only within certain geographically defined areas. It does so in the context of the war on terror and counterterrorism, and specifically in the debates over targeted killing and armed drone warfare.
The essay is a non-technical policy essay that is part of an online volume on current national security issues published by the Hoover Institution Task Force on National Security and Law. The essay's purpose is not to offer a formal legal argument on the proposition of a “legal geography of war,” but instead to reflect more discursively on how the communities of international law, policy, diplomatic, laws of war, military, intelligence, nongovernmental organizations, and international advocacy have debated this since 9/11. It argues that the Bush administration’s assertion of a global war on terror and its claims of the legal incidents of war on a worldwide basis caused a backlash among its critics, toward geographical constraints on war as formal legal criteria. This was a shift away from the traditional legal standard that war takes place, and the law of war governs, where(ever) there is “conduct of hostilities.”
Drones and targeted killing, insofar as they are asserted within the law of war, particularly strain the legal framework. However, as the Obama administration has moved away from the global war on terror as a means to widen the application of the law of war beyond the conduct of hostilities, legal views appear to be converging once again on the traditional “conduct of hostilities” standard. The essay concludes with a brief, speculative post-script on the meaning of the deployment of armed drones to the Libyan conflict, and how that deployment seems peculiarly to have shifted the perceived acceptability of drone warfare in a way that was not quite so evident when the issue was not humanitarian war in Libya, but the US’s wars of national security in Afghanistan and Pakistan.
Efficiency in Bello and ad Bellum: Targeted Killing Through Drone Warfare (Kenneth Anderson, 23 Sep 2011):
Quote:
Abstract:
A peculiar feature of the targeted killing using drone technology debate is that it appears to set up a tension between the two traditional categories of the law and ethics of war, jus in bello and jus ad bellum. The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone user’s forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum).
Regards
Mike
Some interim snacks before the meat
We had our 50th (Class of 1961) Hancock High School Reunion this weekend. Chowed down with (ret) 2 Navy O's and 1 SNCO (Mel came up from NC to see us - as he correctly said "the last time I saw you was at the Naval Reserve Center in 1961" - the NRC allowed us the Center for our graduation party; and thereby kept kiddy drunks off the roads). So, a good time with them and 50+ others.
Interestingly enough, the four of us had no discussion re: current military situations.
Now, in looking at the Awlaki mission, we do in fact have a lot of legal opinions, which range from close to the "normative" to vary adverse to the "normative". I'm going to take this on gradually - over the next week or so.
Here's a bold-face - "Killing Awlaki was illegal, immoral and dangerous" - CNN Link - by one of my personal favs, Mary Ellen O'Connell, who is generally in my "opposition":
http://law.nd.edu/assets/4252/oconnell.jpg
Yes, she is an "Irish Colleen"; but:
Quote:
She earned her B.A. in History, with highest honors, from Northwestern University in 1980. She was awarded a Marshall Scholarship for study in Britain. She received an MSc. in International Relations from the London School of Economics in 1981, and an LL.B., with first class honors, from Cambridge University in 1982. She earned her J.D. from Columbia University in 1985, where she was a Stone Scholar and book review editor for the Columbia Journal of Transnational Law. After graduation, she practiced with Covington & Burling in Washington, D.C. [JMM: a very good DC law firm; but not S & C.]
which allows this Mick:
http://council.smallwarsjournal.com/...&pictureid=188
to slug it out virtually - as barristers do.
That being said, check out her articles at the site above; and do a Google for her many pdfs. Or, search SWC for her name vice jmm99 (I often cite to her as one of the "opposition").
Another personal fav - for Gitmo cases and "War Crimes" - is Andy Worthington:
http://www.andyworthington.co.uk/wp-...yportrait2.jpg
He, like ME O'C, is pretty straight-up in his beliefs - even though generally opposite to my own. Neither of them have horns; nor, do I !
See also, from Antiwar.com as the source, to provide a "fair and balanced side of the coin" (WTF does that really mean ?):
Now, you all have the side of the coin which (mostly) differs from my side.
Later....
Regards
Mike
Good people, like O'Connell and Worthington ...
go astray when they demand a law enforcement approach against these violent non-state actors. These VNSAs are waging unconventional warfare against the US. They sometimes do that directly (as in 9/11), but often through local "franchises" or "non-franchised insurgencies" (your enemy is my enemy, etc).
Their practice does differ from the unconventional warfare doctrine of "FM31-21" in that they do not (at present) have conventional forces which the irregular forces support and with which they seek a juncture. Thus, because these VNSAs are not a state, are not regular forces, and do not occupy defined geographic spaces, some folks (e.g., O'Connell and Worthington) have a very difficult time considering these VNSAs as being involved in an armed conflict.
In fact, they may see associated groups (such as the Taliban, which has some aspects of a "state", has somewhat organized forces and does occupy defined spaces) as the essential parties to an "armed conflict". The conflict to them is then limited geographically to territory contested by the associated group. I think that is focusing too much on the horse, and not on the jockey (AQ); but, in any event, law enforcement methodology is demanded with respect to the jockey (AQ).
Now, law enforcement is part of a larger system - the criminal justice system. That system includes as integral parts not only law enforcement officers, but also prosecutors and defenders - and courts (with or without juries) as the ultimate decision-makers of what is "legal" or "illegal". In the US at the Federal level, Article III is the constitutional basis.
If an "armed conflict" exists, the criminal justice system does not generally play a role. E.g., Articles I and II provide the basis for Executive and Congressional power over armed conflicts; and generally the Article III bodies have recognized their lack of power in that area.
Some have argued for sets of rules that would extend the law enforcement methodology beyond its normal scope - so as to allow targeted killing under limited circumstances. Personally I think that would be a disaster; and I would much prefer to see a clear line drawn between law enforcement ("Rule of Law") and armed conflict ("Laws of War").
Mike Hayden said it well a few weeks ago, in a debate I reported here, Resolved: It's Time to End the War on Terror - from the transcript, p.11:
Quote:
Michael Hayden:
Let me give you -- thank you. Let me give you a slightly different description of that event. A heavily armed agent of the United States government was in a room with an unarmed man who was under indictment in the United States judicial system and was offering no significant resistance to the heavily armed agent of the United States government, and that heavily armed agent of the United States government killed him.
If you do not think we are at war, there are some very troubling definitions that you might want to attach to that act. That's the kind of authority we have perfectly lawful -- and no way am I suggesting anyone acted inappropriately. We acted perfectly lawfully because we are a nation at war and generally recognized as such.
You don't want to take those tools off the table while there are terrorists out there.
20:03:01
If you let this tool go, you will be less safe. Okay. If you look at the scope of our constitutional system, the law enforcement approach is designed, if you look at the constitution, the Bill of Rights and the American statutory law, the law enforcement approach is designed to make the government weak because we don't want the government arbitrarily taking away your liberties.
On the other hand, if you look at those sections of the Constitution that deal with armed conflict, they're designed to make the government strong so that it can protect you. You don't want to take that tool off the table. And quite perversely, if you take that tool off the table, you may actually threaten your own civil liberties.
Bear with me. There's a tight connection here. If the options of a nation at war are taken away from your tool kit, you must then rely on the options offered by law enforcement.
20:03:59
If you recall the events in -- on Christmas day a year or two ago, Detroit, Umar Farouk Abdulmutallab, the "Underwear Bomber" -- and he was Mirandized after about 50 minutes of interrogation, and I think everyone recognized that was probably a mistake. We should have interrogated him further.
We had the attorney general talking to the American Congress about legislation that would make Miranda more malleable so that we could interrogate these kinds of people longer in our law enforcement approach.
I don't want to make Miranda more malleable. Miranda defends me. Defends you. Defends your rights. And we're forced to contort the law enforcement approach when we attempt to make it answer and deal with questions it was never designed to deal with. This is one of those questions. Don't take that other tool, "We are a nation of war [sic ! at war]" off the table.
So, I agree with Hayden.
How effective would a law enforcement approach be against our own unconventional warriors if they were waging unconventional warfare against another state ? Posit that our conventional forces cannot be involved (so there is a rough equivalence to AQ's situation).
More later - maybe tonite.
Regards
Mike