The Rules - Engaging HVTs & OBL

[An Outsider]

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

Regards,

Stefan

[Entropy]

Mike,

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

[jmm99]

re: this -

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

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

TVNSA Flow Chart 2011.jpg

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

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

I'll do the opposing view later.

Regards

Mike

[jmm99]

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):

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

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

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

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

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

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

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

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

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

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

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

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

A key source to the author is:

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

Pdf LINK; 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:

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

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

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

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

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

Comment on the above from a military standpoint.

Regards

Mike

[jmm99]

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

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

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):

Conclusion

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

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

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

Regards

Mike

[jmm99]

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:

Conclusion

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

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

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

[1] Jane Perlez & David Rohde, Pakistan Pushes Back Against U.S. Criticism on Bin Laden, 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):

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

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

Regards

Mike

[LawVol]

I came across this today: UN wants answers

the money quote:

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

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

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

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

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

Of course, all this would be for nought if Obama had simply made an announcement and left it at that. By constantly changing the story, he has invited criticism. See this analysis for a much better outline of the problem than I could offer.

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

[Bill Moore]

http://www.nytimes.com/2011/10/09/wo...nted=1&_r=1&hp

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

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

.

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

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

Did we illegally kill an American?

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

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

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

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

More at the site.

[jmm99]

Thank you for the link to Charlie Savage's NYT article, Secret U.S. Memo Made Legal Case to Kill a Citizen, which has been brewing for a few days as the folks at Lawfare, Anti-war and elsewhere (e.g., Greenwald and Ackerman) have been pounding the administration to actually release the memo (even if redacted to preserve classified data).

The memo was "principally drafted by David Barron and Martin Lederman" - both are known quantities who generally have not advocated broad, "inherent" Executive Branch powers: e.g., Barron, David & Martin S. Lederman. "The Commander in Chief at the Lowest Ebb: Framing the Problem, Doctrine, and Original Understanding," 121 Harvard Law Review 689 (2008) - part 1 and part 2:

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

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

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

The process set up in the now "unsecret memo" is very close to that of Gary Solis (again no rightist) with respect to Targeted Killing:

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

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

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

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

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

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

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

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

[1] Gary D. Solis (2010). The Law of Armed Conflict: International Humanitarian Law in War. Cambridge University Press. pp. 538–47. ISBN 0521870887.

I agree that Points 1 and 2 are required.

Points 3, 4 & 5 are not required by any US law or treaty. That is admitted by Solis as to Point 3; Point 4 is based on no law or treaty known to me; and Point 5 is based on the ICRC "direct participation" interpretation not accepted by the US.

The added factors are for political effect - and to "accommodate" allies (EU-NATO) who support more restrictive rules than the US has hitherto followed.

My preference would be to follow the normal military targeting rules (essentially Points 1 and 2) with the added requirement that, if a US citizen is involved, he has expatriated himself. Examples: hundreds of US citizens in WWII, having returned to Germany before or during the war, were drafted or enlisted in a branch of that state's armed forces. That bunch included some Waffen SS EMs, NCOs and Os - and a number of expatriates were killed without legal fuss, muss or hand-wringing.

The cry for "due process" (as we know it in our constitutional law) is inconsistent with the normal lack of that kind of "due process" in the decision to kill an enemy combatant.

So, to accommodate domestic politics and doubting allies, we now have a summary of the "secret memo" - and also know that there was a "secret panel" which made "secret findings" and "secret determinations" - outside of the normal military targeting process. And, of course, these operations are a hybrid of Title 50 and Title 10, which further muddies the IHL waters.

I think this is just the opening round of a media barrage - which probably will end up being ignored by a majority of 2012 voters.

Lots of interesting weeds to muck about - and all of this "secret" stuff is either the invention of, or (where prior in part) acceptance of and expansion by, a liberal administration and the liberal lawyers advising it.

Regards

Mike