The Rules - Engaging HVTs & OBL

[jmm99]

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):

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

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

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

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

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

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

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

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

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

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

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

Inter-Agency Shooting Variations

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

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

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

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

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

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

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

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

We were impressed by the overall professionalism exhibited by participants afforded to us by all agencies. Scenario-based training was evident to some degree in all participating agencies. However, in all but one agency, it seemed much more intermittent rather than routine.

All of this accords with e.g., Mark Martins' articles (from the 1990s to today) that ROEs must be taught in the context of tactical-based scenarios - and cannot be "legislated".

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

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

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

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

Imminent Danger:

• Threatened actions or outcomes that may occur during an encounter

• Threatened harm does not have to be instantaneous

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

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

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

Regards

Mike

[jmm99]

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):

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

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

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

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

On the "interface", Washington Post’s David Ignatius writes, The blurring of CIA and military:

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):

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

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

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

Regards

Mike

[Fuchs]

There are final adjudicators that all have agreed on.

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

[jmm99]

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:

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":

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):

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):

Abstract:

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

Regards

Mike

[jmm99]

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":



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

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

which allows this Mick:



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:



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

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

CIA Assassinates Two US Citizens in Yemen

US Officials Work to Posthumously Promote Anwar Awlaki

Legality of Assassinating Americans Considered

Anwar Awlaki Never Actually a Member of al-Qaeda

Secret Justice Dept. Memo Sanctioned Killing of Awlaki

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

Later....

Regards

Mike

[Bill Moore]

Mike,

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

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

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

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

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

[slapout9]

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

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

[M-A Lagrange]

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

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

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

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

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

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

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

The conclusion is, as usual, very consensual:

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

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