Results 1 to 20 of 167

Thread: The Rules - Engaging HVTs & OBL

Hybrid View

Previous Post Previous Post   Next Post Next Post
  1. #1
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default 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):

    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):

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

    LEON PANETTA: The authorities we have on Bin Laden are to kill him. And that was made clear. But it was also, as part of their rules of engagement, if he suddenly put up his hands and offered to be captured, then–they would have the opportunity, obviously, to capture him. But that opportunity never developed.
    Mr Panetta is a lawyer (JD 1963) and was an Army officer (1964-1966).

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

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

    Then moving to the Handbook:

    5.4.1 Combatants

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

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

    8.2.1 Lawful Combatants

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

    8.2.2 Unlawful Combatants

    Unlawful combatants (see paragraph 5.4.1.2) who are members of forces or parties declared hostile by competent authority are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).
    The same rules apply whether OBL is regarded as a lawful combatant or an unlawful combatant. First, the exception:

    8.2.3 Hors de combat

    Combatants, whether lawful or unlawful, who are hors de combat are those who cannot, do not, or cease to participate in hostilities due to wounds, sickness, shipwreck, surrender, or capture. They may not be intentionally or indiscriminately attacked. They may be detained (see Chapter 11 on treatment of detainees).
    Not applicable under the facts as posited (door breaching, then a double tap).

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

    What follows applies to door breaching and a double tap.

    As to surrender:

    8.2.3.3 Surrender

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

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

    [3] The mere fact that a combatant or enemy force is retreating or fleeing the battlefield, without some other positive indication of intent, does not constitute an attempt to surrender, even if such combatant or force has abandoned his or its arms or equipment.
    No requirement exists that a "surrender offer" be made by the attacker. So, subject moves forward - shoot; moves right - shoot; moves left - shoot; moves back - shoot; and doesn't move - shoot. Says "I surrender" - see part [1] above.

    A comment from Ken Anderson on Whether IHL Requires an Invitation to Surrender in the Context of an Attack Against a Lawful Target, by Robert Chesney (4 May 2011) (emphasis added):

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

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

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

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

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

    Regards

    Mike

  2. #2
    Council Member
    Join Date
    Oct 2007
    Posts
    89

    Default

    Good post, jmm, just a couple of quick questions which will show my ignorance:

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

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

  3. #3
    Council Member Polarbear1605's Avatar
    Join Date
    Sep 2008
    Location
    Raleigh, NC
    Posts
    176

    Red face Hear, hear! Jmm99

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

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

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

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

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

    So the question still stands; why do we blur the line between Laws of War and Rule of Law?
    Last edited by Polarbear1605; 05-05-2011 at 07:28 PM.

  4. #4
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Yes, I am also ignorant - of many things

    Thank you for the kind words. In answer to your questions.

    from sw
    1. Are you sure that "Handbook on the Law of Naval Operations" applied to this mission? Does the law follow the people (SEALs) or does the location of action determine the governing law?
    In default of having the actual "mission order" (more than one document, I'd expect; and a bunch of annexes) and the subsidiary "commander's guidance and intent", we of lower pay grades have to be satisfied with what we can reach: Laws of War as accepted by the US; 2001 AUMF as interpreted (primarily by the DC Circuit); JCS SROEs (the unclassified open-source); and the respective service handbooks on Operational Law (Navy being as good as any under the present circumstances).

    from sw
    2. I'm lazy. Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?
    I'm not lazy, but I am busy. So, negat. I'm not asking for "sir, I'll find out, sir"; but I do request the "I'll find out" from you.

    I've many posts dealing with the AUMF and its relevance to "kill or capture" missions - all of the Gitmo detainments are based on the same basic legal analysis. Start with this post in War Crimes, Gitmo Update, 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

  5. #5
    Council Member
    Join Date
    Oct 2007
    Posts
    89

    Default

    Quote Originally Posted by jmm99 View Post
    Thank you for the kind words. In answer to your questions.



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



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

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

    5.4.1.1 Lawful Enemy Combatants
    Lawful enemy combatants include members of the regular armed forces of a State party to the conflict; militia, volunteer corps, and organized resistance movements belonging to a State party to the conflict, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war; and members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power. Lawful combatants are entitled to combatant immunity—that is, they cannot be prosecuted for their lawful military actions prior to capture.
    Lawful combatants also include civilians who take part in a levee en masse. A levee en masse is a spontaneous uprising by the citizens of a nonoccupied territory who take up arms to resist an invading force without having time to form themselves into regular armed units. Combatant immunity for a levee en masse ends once the invading forces have occupied the territory.
    5.4.1.2 Unlawful Enemy Combatants
    Unlawful enemy combatants are persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during armed conflict.
    So disregard my question. Enjoy your PM.
    Last edited by davidbfpo; 05-06-2011 at 08:21 AM. Reason: Tidy up quote spacing

  6. #6
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default 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:

    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:

    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.



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



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

    Regards

    Mike

  7. #7
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Yes, I will gladly do this ....

    from sw
    So disregard my question....
    "Pal", I'll leave that on the shelf where it belongs.

    No regards

    Mike

  8. #8
    Registered User
    Join Date
    Dec 2010
    Location
    Toronto, Canada
    Posts
    5

    Default Pardon my ignorance but,

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

  9. #9
    Council Member Polarbear1605's Avatar
    Join Date
    Sep 2008
    Location
    Raleigh, NC
    Posts
    176

    Default I like it!

    Hmmm....definitely like the new uniform... not only do the leather leggings reflect adaptation to the situation but also the mockensons show the implemented of the latest stealth technology and the dash of treachery a good tactician learns in dealing with the enemy.

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

    Now in researching these Marines I fouund this:


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



    Quote Originally Posted by jmm99 View Post
    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:



    Moving on to the post cited, Further Thoughts on Congressional Oversight, the UBL Operation, and the Title 10/Title 50 Issue:



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

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

    I'm getting tired wearing a dress uniform, carrying around a slung 63" 1728 Charlesville fusil.



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



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

    Regards

    Mike

  10. #10
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Very briefly,

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

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

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

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

    Cheers

    Mike

  11. #11
    Council Member Fuchs's Avatar
    Join Date
    May 2008
    Posts
    3,189

    Default

    Foreign Policy: Obama's Death Panel by Bruce Ackerman

    According to Reuters, American citizens like Awlaki aren't targeted directly by the president or politically responsible officials. The job is delegated to midlevel operatives in the White House's National Security Council (NSC), who then send their recommendations on to a panel of NSC "principals" comprising a shifting group of cabinet officers and intelligence chiefs, depending on the particular mission involved. We do not know how much information the "principals" receive or how much time they spend weighing the evidence. But such a transient body isn't a suitable forum for making life-and-death decisions about Americans. At the very least, the fate of fellow citizens should be determined by a seasoned group of decision-makers whose judgments are honed by deliberation over time.
    NSC staffers + transient principals + passive president = death. No law or regulation sets out this formula, nor is there even a public record of the existence of the NSC panels.
    Last edited by davidbfpo; 10-09-2011 at 08:33 PM. Reason: Moved here as a better location, PM to author.

  12. #12
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Two Ackermans, BTW

    Bruce Ackerman (Wiki) is a law prof (Yale). Spencer Ackerman (Wiki) is a national security reporter (aka Attackerman). Both are pretty much saying the same thing - "Death Panel" ..."No Due Process".

    The Obama Administration opened itself up to that charge by (1) relying on war powers and military law as the principal basis for Awlaki's killing; but (2) then foregoing the military targeting process in favor of an NSC panel.

    I doubt that the Ackermans would have been satisfied with the military targeting process. For example, Bruce asserts (with the certitude of a Stirling prof):

    Up to this point, I haven't challenged the administration's larger claim that, putting aside the decision to target Awlaki, it had the congressional authority to send drones over Yemen in the first place. But the legal basis for its wide-ranging use of drones is remarkably weak. Shortly after Sept. 11, 2001, Congress certainly authorized force against any terrorist group that "planned, authorized, committed, or aided" the 9/11 attacks. But Awlaki belonged to an organization, al Qaeda in the Arabian Peninsula, that didn't even exist at the time. [JMM: this can be disputed] Indeed, it's increasingly tough to say that Congress's 2001 resolution authorizes the United States' continuing activities in Afghanistan and Pakistan, given America's recent decimation of the original al Qaeda's fighting capacity.
    Now, the 2001 AUMF does look in futuro:

    That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
    but Bruce would limit that to groups using the same names today as they did pre-9/11. Obviously, the Executive Branch does not agree; nor does a majority of the Legislative Branch. Nor do I; neither does Bobby Chesney, Is There a Significant Distinction Between “al Qaeda” and “al Qaeda in the Arabian Peninsula”? (3 Nov 2010).

    Who has constitutional authority to decide jus ad bellum (going to war) and jus in bello (behaving in war) issues ?

    With very limited exceptions, the courts do not. These matters are "constitutional matters that are largely non-justiciable" - i.e., "political questions" as found by the Federal judge who dismissed the al-Awlaki family's law suit to enjoin his targeting. See my post, Al-Auloqi (Awlaki) case dismissed, from Dec 2010 (a number of links).

    For those not familiar with Judge Bates' opinion, here are the key paragraphs:

    To be sure, this Court recognizes the somewhat unsettling nature of its conclusion -- that there are circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is "constitutionally committed to the political branches" and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the "particular question" posed by a specific case, see El-Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any "carve-out" for cases involving the constitutional rights of U.S. citizens. While it may be true that "the political question doctrine wanes" where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. Indeed, in one of the only two cases since Baker v. Carr in which the Supreme Court has dismissed a case on political question grounds, the plaintiffs were U.S. citizens alleging violations of their constitutional rights. See Gilligan v. Morgan, 413 U.S. 1, 3 (1973).

    In Gilligan, students at Kent State University brought suit in the wake of the "Kent State massacre," seeking declaratory and injunctive relief that would prohibit the Ohio Governor from "prematurely ordering National Guard troops to duty in civil disorders" and "restrain leaders of the National Guard from future violation of the students' constitutional rights." Id. According to the Court, the plaintiffs were, in essence, asking for "initial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard." Id. at 6. Dismissing the plaintiffs' claims as presenting non-justiciable political questions, the Court noted that "[i]t would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches." Id. at 10. As the Court explained, the Judiciary lacks the "competence" to take "complex subtle, and professional decisions as to the composition, training, equipping, and control of a military force," and "[t]he ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability." Id.

    So, too, does the Constitution place responsibility for the military decisions at issue in this case "in the hands of those who are best positioned and most politically accountable for making them." Hamdi, 542 U.S. at 531; see also Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918) (explaining that "[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative - 'the political' - departments of the government, and the propriety of what may be done in the exercise of this power is not subject to judicial inquiry or decision"). "Judges, deficient in military knowledge . . . and sitting thousands of miles away from the field of action, cannot reasonably or appropriately determine" if a specific military operation is necessary or wise. DaCosta, 471 F.2d at 1155. Whether the alleged "terrorist activities" of an individual so threaten the national security of the United States as to warrant that military action be taken against that individual is a "political judgment[]. . . [which] belong[s] in the domain of political power not subject to judicial intrusion or inquiry." El-Shifa, 607 F.3d at 843 (internal quotation marks and citations omitted).

    Contrary to plaintiff's assertion, in holding that the political question doctrine bars plaintiff's claims, this Court does not hold that the Executive possesses "unreviewable authority to order the assassination of any American whom he labels an enemy of the state." See Mot. Hr'g Tr. 118:1-2. Rather, the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an "operational" member of AQAP, see Clapper Decl. ¶ 15, presents such a threat to national security that the United States may authorize the use of lethal force against him. This Court readily acknowledges that it is a "drastic measure" for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a "terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009," id. ¶ 13. But as the D.C. Circuit explained in Schneider, a determination as to whether "drastic measures should be taen in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking." 412 F.3d at 197. Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff's claims, the Court finds that the political question doctrine bars judicial resolution of this case.
    Thus, the questions are not "legal" issues in the usual sense (matters to be decided by the courts), but "policy" issues to be determined by the Executive and Legislative Branches. That is not "new law".

    So, unless I can swing some votes in Congress and/or change policy in the WH, my opinions on Awlaki aren't likely to have any effect. Maybe one or both of the Ackermans will have better luck.

    I wonder what percentage of voters in the US know the key judicial issue (justiciability) re: the Awlaki matter was decided 9 months ago ?

    Regards

    Mike

  13. #13
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default The Other USG Non-Secret Memo

    The memo described in Charlie Savage's article came out of DoJ's Office of Legal Counsel, "completed around June 2010."

    The later position of the USG (let's say a "refined" version of the OLC memo) was far from secret - a public filing of the USG's Opposition to the Awlaki law suit (signed off by Tony West, Assistant Attorney General, Civil Division).

    The key USG public background facts (pp.10-13 pdf):

    Anwar al-Aulaqi is a dual U.S.-Yemeni citizen who is believed to be currently in Yemen. See Plaintiff’s Complaint ¶¶ 17, 26. As noted above, the United States Intelligence Community has publicly disclosed some information concerning Anwar al-Aulaqi, see Public DNI Clapper Decl. ¶¶ 13-15, including that:

    * Anwar al-Aulaqi is a leader of AQAP, a Yemen-based terrorist group that has claimed responsibility for numerous terrorist acts against Saudi, Korean, Yemeni, and U.S. targets since January 2009. Id. ¶ 13.

    * Anwar al-Aulaqi has pledged an oath of loyalty to AQAP emir, Nasir al-Wahishi, and is playing a key role in setting the strategic direction for AQAP. Id. ¶ 14.

    * Anwar al-Aulaqi has also recruited individuals to join AQAP, facilitated training at camps in Yemen in support of acts of terrorism, and helped focus AQAP’s attention on planning attacks on U.S. interests. Id. ¶ 14.

    * Since late 2009, Anwar al-Aulaqi has taken on an increasingly operational role in the group, including preparing Umar Farouk Abdulmutallab, who received instructions from Anwar Al–Aulaqi to detonate an explosive device aboard a U.S. airplane over U.S. airspace and thereafter attempted to do so aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009, for his operation. Id. ¶ 15.

    Based in part on this information, on July 16, 2010, the U.S. Department of the Treasury issued an order designating Anwar al-Aulaqi a “Specially Designated Global Terrorist” (SDGT) for, inter alia, “acting for or on behalf of al-Qaeda in the Arabian Peninsula (AQAP) . . . and for providing financial, material or technological support for, or other services to or in support of, acts of terrorism[.]” Designation of ANWAR AL–AULAQI Pursuant to Executive Order 13224 and the Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594, 75 Fed. Reg. 43233, 43234 (July 23, 2010).[1] On July 20, 2010, four days after the Treasury Department designated Anwar al-Aulaqi a Global Terrorist, the United Nations’ Al-Qaeda and Taliban Sanctions Committee added him to its Consolidated List of individuals and entities associated with al-Qaeda, Osama bin Laden or the Taliban.[2] This listing was based on Anwar al-Aulaqi’s:

    “participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of”, “recruiting for”, and “otherwise supporting acts or activities of ” Al-Qaeda (QE.4.01) and Al-Qaeda in the Arabian Peninsula (QE.A.129.10).
    See Press Release, United Nations, QI.A.283.10 ANWAR NASSER ABDULLA AL-AULAQI (July 20, 2010).[3] The United Nations based its listing of Anwar al-Aulaqi on findings that are ... [page break for footnotes below]

    1. This designation was issued pursuant to the President’s authority under the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-06. After the terrorist attacks of September 11, 2001, the President issued Executive Order No. 13224 (“E.O. 13224”), 66 Fed. Reg. 49,079 (2001), effective September 24, 2001, declaring a national emergency with respect to the “grave acts of terrorism . . . and the continuing and immediate threat of further attacks on United States nationals or the United States.” See E.O. 13224, Preamble. The Secretary of State previously designated AQAP as a Foreign Terrorist Organization on January 19, 2010, pursuant to her powers under the Antiterrorism and Effective Death Penalty Act, 8 U.S.C. § 1189.
    (See http://www.state.gov/r/pa/prs/ps/2010/01/135364.htm).

    2. On October 15, 1999, the United Nations Security Council established the Al-Qaeda and Taliban Sanctions Committee (“the Committee”). See U.N. Res. 1267 (Oct. 15, 1999)
    (available at http://daccess-ods.un.org/TMP/7965262.53223419.html). The Committee previously added al-Qaeda to the Consolidated List on October 6, 2001, and AQAP on January 19, 2010.

    3. Available at http://www.un.org/sc/committees/1267/NSQIA28310E.shtml.
    substantially identical to those made by the U.S. Department of the Treasury. See id. In connection with the U.N. action, Ambassador Daniel Benjamin, the Department of State’s Coordinator for Counterterrorism explained:

    Today’s designation of Anwar al-Aulaqi is in direct response to the operational role he plays in AQAP, and most importantly because of the integral part he played in planning AQAP’s attempted destruction of Northwest Airlines flight 253 over the United States. Anwar al-Aulaqi and AQAP actively engage in terrorist plotting with the intent to harm U.S. citizens. The UN’s listing of al-Aulaqi highlights the threat al-Aulaqi poses to the international community.
    See Press Release, U.S. Department of State, Listing of Al-Qaeda in the Arabian Peninsula (AQAP) (July 20, 2010) (available at http://www.state.gov/r/pa/prs/ps/2010/07/144929.htm).[4]

    The Director of the National Counterterrorism Center echoed these sentiments recently, testifying before Congress that “[d]ual US-Yemeni citizen and Islamic extremist ideologue Anwar al-Aulaqi played a significant role in the attempted [Christmas 2009] airliner attack . . . Aulaqi’s familiarity with the West and role in AQAP remain key concerns for us.” See September 22, 2010 Statement by Michael Leiter to the Senate Homeland Security and Governmental Affairs Committee, Exhibit 3 at pg. 5.

    Furthermore, as noted above, the Executive Branch has determined that AQAP is an organized armed group that is either part of al-Qaeda or, alternatively, is an organized associated force, or cobelligerent, of al-Qaeda that has directed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court has recognized (see Hamdan, 548 U.S. at 628-31). Accordingly, although it would not be appropriate to make a comprehensive statement as to the circumstances in which he might ... [page break for footnote below]

    4. The OFAC and UN designations pertain solely to action taken to block assets and impose economic sanctions, and the information relied upon for the designations is set forth solely as publicly available background information.
    lawfully do so, it is sufficient to note that, consistent with the AUMF, and other applicable law, including the inherent right to self-defense, the President is authorized to use necessary and appropriate force against AQAP operational leaders, in compliance with applicable domestic and international legal requirements, including the laws of war.
    The legal points in support of the jurisdiction of the Executive and Congress - the "political question" and "non-justiciability" issues - are 17 pages, attached as 2010 (snip) Awlaki - USG Opposition.pdf

    Regards

    Mike
    Attached Files Attached Files

  14. #14
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Bill's Questions

    from Bill Moore

    What constitutes an armed conflict? We are openly in an armed conflict with Al Qaeda and their associates, but let's look at the problem set from a wider perspective.

    If another terrorist organization (not even associated with extreme Islam) decided to target the U.S. (let's say a new left wing terrorist organization in Latin America) and we had good intelligence on them, and had low confidence the ability and will of the host nation they were residing in to arrest them, then could the CIA conduct a covert operation to conduct a preemptive strike? We're not in an armed conflict, but we have reliable intelligence they will conduct a terrorist attack against U.S. interests.

    Would the military be able to do this under title 10?
    The discussion in the two posts above establish that these questions are "political questions" and are "non-justiable". The Executive and Legislative Branches have near "exclusive jurisdiction". Thus, these questions are not "legal" issues in the usual sense - to be submitted to and decided by the courts. Instead, they are best looked at as "policy" issues.

    Based on experience (200+ years of Presidents and Congresses), the Executive Branch will take the initiative, determining answers to the key policy issues and sending them on to Congress formally or informally.

    Some issues in the policy question matrix:

    1. Whether an attack by the TVNSA group is "immediate", "imminent" or "in preparation" ?

    2. How is the attack going to unfold and what is the estimated impact of the attack ?

    3. What is the value of the intelligence ("more likely than not" or "clear & convincing"; probably not a "beyond a reasonable doubt" test) ?

    4. Whether our armed response is best handled under Title 10, Title 50, Titles 10-50 or Titles 50-10 ?

    5. Whether to engage in an armed conflict with the TVNSA group (law enforcement tools are not necessarily excluded) ?
    It's up to Congress to accept, modify or reject. If Congress abdicates (essentially the result in our Libyan "not war"), the President's decision stands and is constitutionally correct.

    Are you concerned, Bill, with a President whose knees might wobble; or with a President who might use his knees to raise the bad guy's testicles a bit ?

    I think you might need to clarify the problem situation a bit for me to really get your concerns.

    Regards

    Mike

  15. #15
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Backgrounder on Tony West

    Tony West, Assistant Attorney General, Civil Division, who won the Awlaki case for the USG, was (1) while in private practice, attorney for John Walker Lindh; and (2) a friend of Pres. Obama:

    West, who is a part of a power family in California, has known Obama since 2004, and he was a top fundraiser for Obama during the 2008 presidential campaign. He was finance co-chair of Obama’s California campaign, where the then-senator raised a record total of $65 million.
    One can't make this stuff up.

    Regards

    Mike

Similar Threads

  1. Rules on Use of Quotations
    By Pete in forum Small Wars Council / Journal
    Replies: 11
    Last Post: 02-14-2010, 07:46 PM
  2. Rules of Engagement for Conscience and Sense
    By SWJED in forum US Policy, Interest, and Endgame
    Replies: 16
    Last Post: 02-07-2007, 03:37 AM
  3. Twentieth-century Rules Will Not Win a 21st-century War
    By SWJED in forum Futurists & Theorists
    Replies: 0
    Last Post: 04-08-2006, 09:09 AM

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •