The Rules - Engaging HVTs & OBL

[jmm99]

Those who belong to armed forces or to armed groups may be attacked at any time.

Now, where did that come from ? I'll tell you later.

Several days ago, the NY Times ran a story, Drone Strike Prompts Suit, Raising Fears for U.S. Allies (by Ravi Somaiya, January 30, 2013).

I held off on posting it (and two related pieces by John Bellinger) to see what might happen. The story obviously ties in with my post above dealing with the "discomfort" of European "coalition partners" with US drone strikes:

The death of Malik Daud Khan, a Pakistani tribal elder, in a C.I.A. drone strike might have remained widely unremarked upon, lost amid thousands of others analysts have tallied in the American drone campaign, had not the British courts been brought into it.

The drone strike, which killed Mr. Khan and dozens of others at a tribal council meeting in North Waziristan in 2011, spawned a lawsuit that accuses British officials of becoming “secondary parties to murder” by passing intelligence to American officials that was later used in drone strikes.
...
In interviews, current and former British government and intelligence officials, some of whom worked closely with the United States after the drone campaign’s inception in 2004, said Britain does provide intelligence to the United States that is almost certainly used to target strikes. Many in Britain’s intelligence community, said one person with detailed knowledge of internal discussions, are now distinctly worried they may face prosecution.

British and other EU officials may now have to face the consequences of their countries having had reduced threats from terrs, all without being directly involved in the US drone strikes:

Few argue against the notion that European nations, many of which have been attacked by terrorists, have benefited from the drone killing, however controversial, of many of the most hardened Islamic extremist leaders.

The threat level for international terrorism in Britain was reduced to “substantial,” the middle of five ratings, in July 2011. The switch was due largely to the “removal of operational planners” through drone strikes in Pakistan’s tribal areas and Yemen, a former senior intelligence official said. Another former official put it more simply, saying the “strikes have decimated the Al Qaeda senior leadership, and we didn’t have to get directly involved.”
...
For the government’s part, one senior official said, it “would just like the issue to go away.”

John Bellinger also wishes the problem to go away. In a Lawfare piece, New York Times on Noor Khan Lawsuit (by John Bellinger, January 31, 2013):

The New York Times has this long article about the Noor Khan lawsuit in Britain, in which the son of a man killed in a drone strike in Pakistan has sued the British Foreign Secretary for information about British intellligence support to the US. The article, entitled “Drone Strike Prompts Law Suit, Raising Fears for U.S. Allies,” notes that European governments are growing increasingly uncomfortable about sharing intelligence with the US that might be used in drone strikes: “Many in Brtian’s intelligence community…are now distinctly worried they may face prosecution.”
...
I have been warning for several years about the international legal risks posed by the Obama Administration’s heavy reliance on drone strikes, including my Post op-ed in October 2011 entitled “Will Drone Strikes Become Obama’s Guantanamo?”
...
At the time I wrote it, I thought there was perhaps only a 25% chance that Obama’s drone strikes would become as internationally maligned as Guantanamo, given the preference of human rights groups and European governments to avoid criticising the Obama Administration. But over the last eighteen months, I have seen a crescendo in international criticism, resulting in lawsuits in the US, Britain, and Pakistan, and a potential decrease in intelligence cooperation. This has echoes of the rapid decline in European governmental support for US counterterrorism efforts after 9-11 as national parliaments pressed their governments to distance themselves from unpopular US policies. I would not be surprised if, in the next year, war crimes charges are brought against senior Obama officials in a European country with a universal jurisdiction law.

The bottom line, as I read Mr Bellinger, is that the Obama administration should make nice with European countries by adapting to their view of "international humanitarian law" (aka their version of the laws of armed conflict or laws of war); from his 2011 article linked in prior quote:

Even if Obama administration officials are satisfied that drone strikes comply with domestic and international law, they would still be wise to try to build a broader international consensus. The administration should provide more information about the strict limits it applies to targeting and about who has been targeted. One of the mistakes the Bush administration made in its first term was adopting novel counterterrorism policies without attempting to explain and secure international support for them.

Well, the Obama administration has, in effect, said "stuff it - we'll stick with our domestic laws and the laws of armed conflict as we see them." Earlier tonite from NBC, EXCLUSIVE: Justice Department memo reveals legal case for drone strikes on Americans (by Michael Isikoff):

A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” -- even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.

The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.
...
But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”
...
Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly -- or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.

The contents of the memo should be no surprise to readers of this thread, the "The Rules - Detaining HVTs and Others" thread, and the "War Crimes" thread, since it employs much the same legal arguments used to justify indefinite detention. Those arguments have already been rejected by the EU countries.

See, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.”

My lede quote is from the memo. The memo cites to the 1987 ICRC Commentary on AP II, 4789. The same legal point was made by the Obama DoJ in 2009 (expanding the arguments previously made by the Bush II DoJ), as reported in this post, continuation of DoJ memo ...:

My message then (re: legal arguments for detention) and now (re: legal arguments for targeted killings) to the Obama DoJ, was and is: Good job, guys and gals: I will castigate when you move off the "Straight Path".

And, as to that unnamed European country(ies), with universal jurisdiction, now is your opportunity to put up by bringing war crimes charges against senior Obama officials, or shut up.

Regards

Mike

[davidbfpo]

Mike,

My understanding of the law of armed conflict is tiny, but caveat aside now.

There are several laws regarding armed conflict which appear to have universal jurisdiction, hence the arrest and conviction of an Afghan warlord, an asylum claimant in the UK for torture IIRC and recently a Nepalese Army officer for torture - whilst visiting on leave from a UN mission.

Do such laws have international jurisdiction themselves, or is it the result of incorporation into national law? I think it is the later for the UK.

Several activists have called for the UK authorities to take legal action against suspected sinners, most notably Peter Tatchell who called for Robert Mugabe to be arrested, indeed tried himself to make a "citizens arrest" and was cast aside by Mugabe's own bodyguards.

A few years ago a private application for a summons or a warrant was made to enable the arrest of an Israeli military officer, due to make a PR visit to the UK and the police declined to make an arrest when he landed @ Heathrow. The Director of Public Prosecutions (DPP, our national prosecutor for England & Wales), then stepped in, using a hitherto unknown legal power, to take over the case and have the summons / warrant dropped.

Whatever the desires of some activists and lawyers I cannot see the UK authorities asserting a universal jurisdiction or using a national criminal law to launch a prosecution. Yes citing the 'national interest' and 'national security' come to mind, but as with the USA it is remarkable how few, if any prosecutions have been made over national criminal offences in the financial sector. Why does anyone suppose the UK (English & Welsh) prosecution authorities will suddenly become paragons of virtue and brave too?

Now a civil action here is quite different and that is where the alliance of activists and human rights lawyers are "making hay", nibbling away at the government's arguments. Hence the attempt to enable civil court procedures to have information i.e intelligence material heard by the judge only, without challenge or disclosure to the plaintiff.

[carl]

Mike:

The part that bothered me in the NBC story is the following quote.

The completeness of the administration’s public accounts of its legal arguments was also sharply criticized last month by U.S. Judge Colleen McMahon in response to a lawsuit brought by the New York Times and the ACLU seeking access to the Justice Department memos on drone strikes targeting Americans under the Freedom of Information Act. McMahon, describing herself as being caught in a “veritable Catch-22,” said she was unable to order the release of the documents given “the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for the conclusion a secret.

To layman she is describing a situation where nobody knows what the law is or why it is and nobody will discuss it.

[Polarbear1605]

... And, as to that unnamed European country(ies), with universal jurisdiction, now is your opportunity to put up by bringing war crimes charges against senior Obama officials, or shut up.
Regards
Mike

or the current administration should review/pardon criminal cases of US service members (who are currently sitting in Leavenworth) that occurred in combat using the Laws of War vs the Rule of Law... what's good for the goose...

[jmm99]

Polarbear1605:

Yup; since we have wound down Iraq and soon will in Astan, a presidential pardon review is called for in all of those cases.

David:

from David:
Do such laws have international jurisdiction themselves, or is it the result of incorporation into national law?

Both. The degree of independent international jurisdiction inherent in the criminal law system, vice incorporation of international jurisdiction via positive domestic law, varies greatly from country to country. As a general rule, the US requires incorporation of international jurisdiction via positive domestic law. The US exceptions allowing independent international jurisdiction are limited and not material here - and, in any event, rest on various self-executing provisions of the US Constitution.

from David:
Now a civil action here is quite different and that is where the alliance of activists and human rights lawyers are "making hay", nibbling away at the government's arguments. Hence the attempt to enable civil court procedures to have information i.e intelligence material heard by the judge only, without challenge or disclosure to the plaintiff.

In specific areas, e.g., civil suits for information, the UK and the US are different. See, Peto & Tyrie, Neither Just nor Secure - The Justice and Security Bill (2013) for the UK view. And, for other readers to hand clap David, he took time to pass me this reference by PM.

The US view is typified by the case mentioned by Carl, who is going to be renamed "Bloodhound".

Running our Advanced Search - Keyword(s): classified evidence ; Posts Made By: jmm99 - I just got 50 hits, So, if anyone wants, they are there.

Carl:

from Carl:
To layman she is describing a situation where nobody knows what the law is or why it is and nobody will discuss it.

Colleen McMahon knows exactly what the law is as to (1) drone strikes; (2) as to classified evidence; (3) as to limits on request for information. She also knows exactly what she thinks the law should be. Her dilemma was being caught between the law ruling the case and what law she would like to rule the case.

No one in this international law debate is stupid or ignorant. Almost all (including yours truly) graduated from elite law schools with honors, were law review editors at their schools, and have had some post-law school experience among the political elite (judicial clerkships, international law firms, USG or UN experience, etc.). Some are among the current political elite (e.g., President Obama); some are not (yours truly).

There are two cases, which started in the S.D. of New York (Manhattan), which I decided not to post at the district court level because, at this stage of the game, the appellate decisions are what matter. But since the Bloodhound has sniffed the sausage in the bag, here are some links (from Lawfare).

First, Judge McMahon.

Summary Judgment for the Government in Targeted Killing FOIA Request (by Raffaela Wakeman, January 2, 2013).

Judge McMahon's 75-page opinion.

Second, Judge Forrest.

Katherine B. Forrest (Wiki)

Federal Judge Enjoins Section 1021 of the FY2012 NDAA (by Steve Vladeck, May 16, 2012)

Out today, a 68-page opinion from Judge Katherine Forrest of the U.S. District Court for the Southern District of New York, entering a preliminary injunction barring the federal government from enforcing the substantive detention authority codified by the FY2012 NDAA on the ground that enforcement of the relevant provision (section 1021) might interfere with the plaintiffs’ First and Fifth Amendment rights. There’s a lot here, including the central holding (that the NDAA is not merely a “reaffirmation” of the AUMF), but I haven’t had the chance to read it carefully yet. Suffice it to say, I imagine folks will have more to say about the ruling in Hedges v. Obama over the next few days…

Judge Forrest's 68-page opinion.

Judge Forrest Issues Permanent Injunction in Hedges (by Benjamin Wittes, September 12, 2012).

I haven’t read it yet, but here it is.

Judge Forrest's 112-page opinion.

This decision has been permanently stayed until the 2nd Circuit Court of Appeals enters its decision. See Wiki - Hedges v Obama. An important case, but I figured on waiting for the 2nd Circuit since the injunction is stayed, despite the eminent list pf plaintiffs.

Hopes this helps, though it's a bit "weedy" in the opinions.

Thank you, all three, for the input.

Regards

Mike

[jmm99]

In further answer to David and Carl, Judge McMahon's opinion briefly references, but better illustrates, the procedure for handling classified evidence (or, as here, classified information requested).

Attached are two .pdfs, which Bloodhound will scan to make sure I haven't attached the wrong pages.

pdf 3-4. The end of p.3 and start of p.4 states the judge has received classified information, which will not be given to the plaintiffs or their attorneys. It will be placed in a classified appendix for review by appellate judges, including the judge's classified opinion on the classified information. The whole package, unclassified and classified, constitutes the full record. The unclassified public opinion is reviewed by the FBI prior to its release (footnote 1 to p.4).

pdf 74-76. Actually appendices. The ACLU's requests (Appendix I) are very extensive. Thus, Appendix I is a key to Appendix II (of a single unclassified sentence). Appendix II (the classified part) could be a large package of all the material documents requested; or, more likely, an index to and summaries of the documents.

The bottom line is that Judge McMahon could be the most informed person on the law and process of drone strikes, outside the White House.

Regards

Mike

PS Carl: you know that I'm just poking fun at myself - sometimes you are just so serious:

[carl]

PS Carl: you know that I'm just poking fun at myself - sometimes you are just so serious:

Boy ain't that the truth. Please give me a swift but soft kick when I need it.

A bloodhound! Tres cool.

[jmm99]

As we have seen from the DoJ "White Paper", drone strikes involve choosing the law which will control the case. The basic choice is between the "war" (armed conflict) paradigm and the "law enforcement” paradigm, with each paradigm having branching choices of legal subsets. Life is less confusing when the author initially lays out the choices, and then goes to the author's reasoning in selecting the "correct" law. That style can be called "analysis". Another style is to setup a strawman and proceed to demolish it, hopefully (to the author) generating emotions in the reader. The style might be called a form of "advocacy".

HT to Jack Goldsmith at Lawfare for linking two articles which illustrate the two styles.

The first article discusses the basic choices: the "war" (armed conflict) paradigm and the "law enforcement” paradigm - and briefly explains the consequences of each choice, including the Obama administration's choice of the "war" (armed conflict) paradigm and the "law enforcement” paradigm

President Obama Can Do Anything He Wants To Fight Terrorism - That’s the lesson of the leaked drone memo (by Eric Posner, 5 Feb 2013):

So far, the reporting on the leaked white paper from the Justice Department about drone attacks clearly assumes that we are supposed to be outraged by the Obama administration’s legal theories, just as we were supposed to be outraged by the Bush administration’s. And outrage is being dutifully ginned up. But the memo is utterly conventional as legal analysis; its arguments could easily have been predicted. It’s most useful as an opportunity to reflect on how the law has evolved to address the problem of terror.

All you need to know in order to understand the memo is that Obama administration lawyers have enthusiastically endorsed the once-vilified Bush administration decision to classify security operations against al-Qaida as “war” rather than as “law enforcement.” This was not an inevitable decision. Obviously, the use of military force in Afghanistan was a military operation, and to the extent that members of al-Qaida joined Taliban soldiers in defending the Afghan homeland against the U.S. attack, they could be killed on sight and detained without charges, as is permitted by the international laws of war. But the U.S. government could otherwise have regarded al-Qaida as a criminal organization like a street gang or drug cartel. Outside the battlefield in Afghanistan, the government would then have pursued members of al-Qaida with conventional law enforcement measures.

If the administration had taken the law enforcement approach, members of al-Qaida who are American citizens would have had the same rights to due process that are familiar from everyday policing. We would send FBI agents to foreign countries like Yemen after obtaining permission from governments to conduct joint law enforcement operations. Or we would have asked foreign governments to arrest suspected members of al-Qaida and extradite them to the United States. We could not have sent drones to kill them. We would have offered them trials in civilian courts. ...

In the rest of the article, Posner does critique the USG's "war" approach.

IF the law enforcement approach were the only approach to be taken (that is, the drone strikes are taking place outside of an armed conflict), then I would find them illegal. However, they would not be "war crimes" (because they then would be taking place outside of an armed conflict). They would be some form of homicide under the applicable "Rule of Law" - probably premeditated murder, given the degree of planning, deliberation, etc.

I have stated that many times; but I also have stated that individual killing or detention operations can be based either on a war approach or on a law enforcement approach under US law. In short, both choices are generally available to choose between in any given operation.

The second piece is advocacy, and not analysis. It jumps directly to the law enforcement approach, without consideration of the war approach (the actual choice of the Obama administration). It doesn't make any of the arguments that have been made against the war approach. In fact, it sets up a strawman and then proceeds to demolish its own creation.

Drone Strike Out - The Obama administration's drone strike memo is unconstitutional (by Jeffrey Rosen, 6 Feb 2013):

The Justice Department white paper released on Monday by NBC News is the public's first direct glimpse at the legal reasoning that the Obama administration relied on in using a drone strike to kill Anwar al-Awlaki, a U.S. citizen living in Yemen. The memo's arguments are troubling on many levels.
Although the Obama administration's brief is directed at the assassination of Americans abroad, the arguments it offers could apply with equal force to the assassination of Americans at home; lawyers for the Bush administration who tried to justify lesser outrages have been pilloried for supporting torture. But perhaps most troubling is the administration’s attempt to redefine the idea of the kind of “imminent threat” that can justify a targeted assassination.

The U.S. Supreme Court has previously held that the police can only use deadly force against fleeing, dangerous suspects when killing the suspect is “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” But, in a vast expansion of this narrow precedent, the Obama administration says that the U.S. is not required “to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future” in order to assassinate U.S. citizens whom the government believes are Al-Qaeda leaders. Instead, the memo argues a “decision maker determining whether an al-Qaeda operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al-Qaeda …. are continually plotting attacks against the United States; that Al-Qaeda would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qaeda plots as they are developing and thus cannot be confident that none is about to occur.”

Mr Rosen is well aware of the major arguments that have been made by his colleagues against the existence of an armed conflict (I don't believe he is either stupid or ignorant):

1. The strikes are made against a non-state group that cannot be an "armed force" subject to the Geneva Conventions.

2. The strikes are made outside of the territorial limits of an "armed conflict" subject to the Geneva Conventions.

3. The strikes are made in a conflict area, but the conflict is of too low intensity to be an "armed conflict" subject to the Geneva Conventions.

4. The strikes are made in a conflict area, but the conflict is of too low continuity to be an "armed conflict" subject to the Geneva Conventions.

5. The strikes are outside of the scope of the AUMF used to justify the strikes; and, outside of the scope of the President's separate powers as CinC.

Rosen elects not to analyze those factors; but simply skips to the law enforcement approach as the only paradigm (which is not the paradigm chosen by the Obama administration !). That's his "right" as an advocate. But then, his piece must be taken for what it is - advocacy intended to make the reader outraged; and for what it lacks - a rationale to take one into his strawman situation.

Of course, the "war paradigm" itself does have its limitations. Of them, distinction is the key factor. When a non-state group lacks the attributes of a regular "armed force", identification of its members as combatants (armed force members who participate in combat), non-combatants (armed force members who have a qualified immunity) and civilians (not armed force members) can only be done by functional tests - comparison of how their participation or non-participation lines up with similar roles played by the participants and non-participants in warfare conducted between regular "armed forces".

Regards

Mike

[jmm99]

Gregory McNeal is back at Lawfare for a series of guest posts. He was linked here in 2011, Kill or Capture - the McNeal View.

McNeal again confronts the practical aspects of direct actions (focusing on drone strikes, but the principles play across the spectrum) in How to Make A Kill List (by Gregory McNeal, February 25, 2013):

... For this round of guest posts I will focus on the kill-list creation process. These posts are based on a massively updated version of the collateral damage estimation paper. That paper is now called “Kill-Lists and Accountability” and will be available in SSRN on March 1st. Just like the earlier version of the paper, it builds on government documents, training documents, military doctrine, reports in newspapers and non-fiction books and field interviews and observations. Please note, much of what will appear in the blog posts are drawn directly from the article linked above, as such I’m not including footnotes or sourcing, they can be found in the article once it’s posted. ...

Here are what seemed to me be the high points, starting with:

CATEGORIES OF TARGETS

Many have already analyzed the potential legal rationales offered by the U.S. government in support of its targeted killing campaigns (the subject of Part I of the paper), therefore let me just offer this summary with regard to categories of targets. There are three basic categories of targets who might find their way onto a kill-list: (1) Targets who fall within the AUMF, and its associated forces interpretations [AUMF Targets], (2) targets who fall within the terms of a covert action finding [Covert Action Targets], and (3) targets provided by allies in a non-international armed conflict in which the U.S. is a participant [Ally Targets; or derisively, “side payment targets”]. ...
...
DEVELOPING NAMES FOR THE LIST

The process of developing names for the list is initially delimited by the categories of individuals who may be targeted. Those limits are established by the law of armed conflict, which prohibits the targeting of civilians except those who are members of an organized armed group or those who are directly participating in hostilities. Because direct participation in hostilities is a fleeting, time bound categorization, the only criteria by which an individual would likely be added to a kill-list would be if they fall into the category “members of an organized armed group.” While seemingly simple, the term “members of an organized armed group” has been the subject of extensive debate. ...

These following three paragraphs are absolutely essential if one is to understand the US position, which is not the same as that held by the ICRC and the EU nations:

First, there are open questions as to what particular groups count as “organized armed groups.” Second, as a matter of law, what members of an organized armed group are targetable? Many in the international community reject the idea that members of an organized armed group are always targetable based merely on their membership in that group. Rather, they believe that for a member of an organized armed group to be always targetable requires that member have a “continuous combat function.” That term as described by the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities (DPH study) refers to those individuals whose “continuous function” within the group “involves the preparation, execution or command of acts or operations amounting to their direct participation in hostilities.”

It is critical to note that the U.S. and many international law experts do not subscribe to the DPH study’s CCF interpretation. They reject it because it creates different standards for regular armed forces - who are always targetable based on their status - and organized armed groups, for whom based on this standard only some of their members would be always targetable based on their status. Under the U.S. approach, all that is needed to target an individual is sufficiently reliable information that the person is a member of the organized armed group (Taliban, al Qaeda, associated forces). This differs from the ICRC interpretation which would require the U.S. to know that person’s function before attacking him.

This is an important and fundamental distinction for any debate about targeted killings. The U.S. claims the authority to target persons who are members of organized armed groups, based merely on their status; in so doing the U.S. is not just considering planners or commanders as potential targets, but all members of enemy groups. This may mean that an outside observer who does not interpret the law as the U.S. does may see the killing of a person who was placed on a kill-list as an unlawful killing that violates IHL as many countries interpret it, whereas the U.S. may see a particular killing as completely lawful. Both parties may be acting in good faith, but merely interpreting the law differently. In light of these differing legal interpretations, it is critical that in any debate about targeted killing, participants clearly specify what law they are applying and what interpretation of that law they are applying to any given factual circumstance.

Ultimately, the process depends on the judgment of the decision makers:

WHO’S WORTH KILLING
....
Inside the bureaucracy, analysts approach the question “Who’s worth killing?” by viewing enemy organizations as systems and social networks. Systems analysis means they will analyze variables such as whether an individual is critical to the group he is a member of, looking at factors such as the individual’s value, ability to be replaced, time it would take to replace that person, and what that person’s contributions are to the enemy organization. Taken together, these concepts all relate to the effect that attacking a target will have on the enemy group’s war-fighting capability. It is important to note that these operative principles mean that an individual may be critical to an organization, despite being a low level individual.

A hypothetical can help illustrate these concepts. Suppose an analyst would like to place a bomb maker on a kill-list, that bomb maker’s criticality will be measured by the four factors outlined above (value, depth, recuperation, capacity). The value of the bomb maker will be determined by analyzing how killing him will impact the group’s ability to conduct operations. The amount the enemy’s operations are disrupted by the particular targeted killing will depend on the depth of the enemy’s bomb-making roster. So, if this bomb maker is one of ten similarly-skilled bomb makers, an analyst might note that this organization is deep on bomb making talent and the disruption in short-run bomb-making capacity will be short lived. However, just because another bomb maker currently on the roster quickly replaces the target, does not mean that the enemy organization hasn’t suffered. The long-term effects on the organization will require an estimate of how long it will take the enemy to regain its functional capability, in this example how long it will take the organization to go from nine bomb makers back to the ten they started with? It may be that bomb makers take a long time to train, or the frequent killing of their kind may deter prospective bomb makers. An analyst making a determination about the criticality of a target will consider all of these factors.

To Be Continued ...

Regards

Mike