The Rules - Engaging HVTs & OBL

[jmm99]

Jack Goldsmith is a Harvard Law professor and a member of the Hoover Task Force on National Security and Law. He served in the Bush administration as assistant attorney general in charge of the Office of Legal Counsel. His new book is Power and Constraint: The Accountable Presidency after 9/11.

He recently wrote at Foreign Policy, Fire When Ready (12 Mar 2012), which overall is a good summary of the points covered in this thread re: targeted killings (emphasis added).

His BLUF:

While the Obama administration can improve its public explanations for targeted killing, its critics have wildly overstated the legal concerns about the practice. Even exaggerated criticisms, however, can serve a useful role. As I detail in my book, an important lesson of the first decade of indefinite war against al Qaeda and its affiliates is that relentless and sometimes brutal scrutiny and criticism of the presidency from all quarters forces the presidency to engage in self-reflection and public justification that, in the end, strengthen it. The criticisms of targeted killing have produced public debate and limited judicial scrutiny of targeted killings that have enhanced the legitimacy of the practice. They have also encouraged the executive branch to tread very carefully and to provide much more public information and explanation about its operations than usual. There is room for improvement, of course, but we should not be blind to how deeply the Obama administration's targeting killing practices are embedded in the rule of law.

Agreed, except I would make it clear that the primary justification has to be based on the Laws of War. Those can, of course, be included within the rule of law as broadly defined (as LawVol, for example, has pointed out).

If one views policy as being the primary driver for whether targeted killings are or not employed, then Jack's citation of the polls is a critical element:

These disclosures have fostered a robust public debate about targeting killing in the United States and abroad, and the American public broadly approves of what it sees. According to a recent Washington Post/ABC News poll, 83 percent of respondents (including 77 percent of liberal Democrats) say they approve of the Obama administration's use of drones against terror suspects overseas, while only 11 percent disapprove. The approval/disapproval numbers drop to 65/26 percent when respondents are told that the targets are American citizens. As the Washington Post's Greg Sargent noted, "65 percent is still a very big number." Sargent added that "Democrats approve of the drone strikes on American citizens by 58-33, and even liberals approve of them, 55-35."

Given this political support, the political issue of targeted killings appears closed among USAians. Of course, lawyers and non-lawyers, academics and non-academics are free to argue the issue one way or the other. Thus, the comments to Jack's piece are interesting.

An interesting comparison is that roughly the same numbers oppose US air strikes and US ground force intervention in Syria (more oppose ground force intervention). And, roughly the same number support withdrawal from Astan by 2014 or sooner.

Regards

Mike

[jmm99]

The recent speech by Ben Emmerson QC [Queen's Counsel], United Nations Special Rapporteur on Counter-Terrorism and Human Rights, at the Harvard Law School (26 Oct 2012), is attached as a pdf file.

At the outset, it is best to recognize that Mr. Emmerson believes he has a "mandate" (a term used just south of a dozen times in 17 pdf pages). I believe that he believes deeply in every single sentence he's written. I don't.

In terms of the legal jargon, International Human Rights Law is analogized in US Law by Bill of Rights Law (as expanded by the later post-Civil War amendments) - the two sets are overlapping, but not co-extensive. International Humanitarian Law is analogized in US Law by its Laws of War (or Laws of Armed Conflict) - again, the two sets are overlapping, but not co-extensive.

Leaving aside biographies for the moment, we will cover the key points of the Special Rapporteur's speech.

The UN Security Council's Mandate to Members

Initially, there was little mention of human rights in any of the initiatives at UN level. But in 2003 the Security Council passed resolution 1456 which included for the first time a provision requiring States to ensure that any measures taken to combat terrorism must comply with their obligations under international law, and in particular international human rights, humanitarian and refugee law.
...
The process of reform at UN level did not begin in earnest until 2006 when the General Assembly adopted the UN Global Counter-Terrorism Strategy. This was intended to be the first comprehensive international statement of obligations resting on States to combat terrorism, and to promote international co-operation within a rule of law framework. Pillar IV of the Strategy sets out specific rule of law guarantees. The requirement for human rights protection underpins the entire Strategy. Whilst the Strategy was under negotiation the UN Human Rights Commission established the mandate of Special Rapporteur on Counter-Terrorism and Human Rights, the mandate which I now hold.
...
The positive statements of principle by the General Assembly and the Security Council have to be turned from mere rhetoric into practice.
...
Security Council resolution 1963 (2010) finally recognised in terms that terrorism will not be defeated by military force, law enforcement measures, and intelligence operations alone, and underlines the need to address the conditions conducive to the spread of terrorism. It recognises that respect for the rule of law, and the protection of human rights and fundamental freedoms, are essential means of offering a viable alternative to those who could otherwise be susceptible to terrorist recruitment and to radicalization.

In other words, the Security Council itself has now come to accept that it is necessary to tackle not only the manifestations of terrorism but also its causes. In the process it has also acknowledged that respect for human rights is essential to an effective strategy of prevention, and that the reverse is equally true.

One wonders how much materiality Mr. Emmerson would give to certain brands of Islam as causes of terrorism.

His Attack on the War Paradigm

The first core challenge is what I will call the global war paradigm. This is the proposition, culled by lawyers and officials of the US State Department under the Bush administration, that since 9/11 the US and its allies have been at war with a stateless enemy and that accordingly its actions are to be judged by the laws of war, rather than the laws applicable in peace-time.
...
The idea that international terrorism in all of its modern forms and manifestations is capable of being definitively defeated by military means seems with retrospect extremely nave. We have seen new forms of terrorism, and new alliances forming even over the past few months in Libya, Mali, other parts of North Africa, Syria and elsewhere. No one now seriously believes that terrorism is a phenomenon that is capable of being militarily defeated.

Most all US courts (the DC Circuit being the leading example) have adopted the "war paradigm" - the US Laws of War (LOAC) as the rules of decision. More than 80% of US voters support the Obama drone strikes, except as to US citizens (e.g., al-Awlaki, where the percentage is still higher than 60%).

His War Crime Indictment

A leading academic study by two US universities, released last month, has endorsed the figures of the London-based Bureau of Investigative as amongst the most reliable sources available in relation to the impact of these drone attacks. Those figures suggest that at least 474 civilians have been killed in Pakistan alone, and that 176 children are reported among the deaths. The Bureau has also alleged that since President Obama took office at least 50 civilians were killed in follow-up strikes when they had gone to help victims and more than 20 civilians have also been attacked in deliberate strikes on funerals and mourners. My colleague Christof Heyns, the Special Rapporteur on extra-judicial, summary and arbitrary executions has described such attacks, if they prove to have happened, as war crimes. I would endorse that view.

The Bureau of Investigative Journalism (BIJ): to correct the typo in the text. I've discussed that source briefly in a couple of posts (as has David). The "facts" alleged in the foregoing quote will be disputed by the USG.

The Lawsuits vs the United States

There are now a large number of law suits, in different parts of the world, including in the UK, Pakistan and in the US itself, through which pressure for investigation and accountability is building. Just last week the High Court in London heard an application for judicial review by the son of a man who was allegedly killed in a US drone strike in North Waziristan in March last year. The strike killed 40 people who – it is claimed – were meeting to discuss a local mining dispute. He is seeking a declaration from the High Court that it is unlawful for the UK's signals intelligence agency GCHQ to share targeting intelligence with the United States, for the purposes of drone attacks. The claim is that GCHQ has been using telephone intercepts to provide the US with locational intelligence on alleged militants in Pakistan and Afghanistan.

In Pakistan itself, there are two separate claims proceeding in the courts. One is aimed at triggering a criminal investigation into the actions of two former CIA officials alleged to be responsible for drone strikes which caused disproportionate civilian casualties. The other is seeking a declaration that the strikes amount to acts of war, in order to pressurise the Pakistani air force into shooting down drones operating in the country's airspace. Whatever the outcome of these cases, the suggestions that have been made to the effect that the Government of Pakistan has given tacit consent to the use of US drones on its territory is under scrutiny.

During the last session of the UN Human Rights Council in Geneva in June many states, including Russia and China, called for an investigation into the use of drone strikes as a means of targeted killing. One of the States that made that call was Pakistan. I was asked by these States to bring forward proposals on this issue, and I have been working closely on the subject of drones with Christof Heyns. The issue is moving rapidly up the international agenda.

Therefore, US and US citizens be forewarned as to what is coming.

- cont. -

[jmm99]

The 2010 UN Report

In February 2010 my mandate, together with three other UN special procedures mandates, presented a Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism to the United Nations Human Rights Council. The UN Study included a detailed analysis of the evidence as to the practice of secret detention both before and after 11 September 2001 in Asia, Central Asia, Europe, the Middle East and North Africa and Sub-Saharan Africa and made recommendations including as to the duty of states to investigate allegations of secret detention, torture and rendition and, where appropriate, provide reparation to victims of these practices.

The report identified a number of States that appeared to have been directly complicit in violations of international law by detaining so-called high-value detainees in secret black site locations on their territory, or allowing the use of their air transport facilities or airspace to facilitate extraordinary renditions, that is international movement of suspects outside the framework of international law. Some of those detained have alleged that they
were tortured at these locations.

Similar investigations have been conducted by the Human Rights Sub-Committee of the European Parliament and by the Council of Europe's Parliamentary Assembly. Despite significant obstacles, the case for securing accountability is gathering momentum. Congress has also conducted an investigation into these practices, although its report has not yet been made public. Meanwhile there are criminal, parliamentary and judicial inquiries taking place in a number of States. A prosecution of a senior official has begun in Poland, and the European Court of Human Rights has recently demanded a complete explanation from Poland and from Romania of their involvement in the CIA programme in the context of an application brought by one of the Guatanamo detainees who is currently facing the death penalty in a military commission trial alleging his participation in the attack on the USS Cole. There are at least four other cases in the pipeline in which European States are being called to account for the complicity in the use of secret detention, rendition and torture in support of the operations run by the Bush-era CIA.

I'll take these assertions at face value (unless corrected by someone); and that the EU states are hot on the hunts for "war criminals".

The UN Special Investgation Unit

If the relevant States are not willing to establish effective independent monitoring mechanisms that meet these international standards, then it may in the last resort be necessary for the UN to act, and to establish such mechanisms itself. Steps are already in hand to set up the necessary modalities, and following discussions this week I can today announce that, together with my colleague Christof Heyns, I will be launching an investigation unit within the Special Procedures of the Human Rights Council to inquire into individual drone attacks, and other forms of targeted killing conducted in counterterrorism operations, in which it is alleged that civilian casualties have been inflicted, and to seek explanations from the States using this technology and the States on whose territory it is used. This unit will begin its work early next year and will be based in Geneva.

One wonders, at what point, will apparent UN and EU values (if well represented by Mr Emmerson and Mr Heyns) differ from US values by so much that a break in relations will occur.

Biography of Ben Emmerson (at Matrix Chambers, his firm):

Ben Emmerson QC is an international lawyer, specialising in European human rights law, public international law and international criminal law. He was a founder member of Matrix Chambers and has 25 years’ experience litigating before international courts and tribunals including the International Court of Justice, the European Court of Human Rights, the European Court of Justice, the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia. Within the UK he is a deputy High Court Judge, a Master of the Bench of Middle Temple and an Honorary Fellow of Mansfield College, Oxford. ... (much more at webpage)

Biography of Christof Heyns, Special Rapporteur of the United Nations on extrajudicial, summary or arbitrary executions (at Univ. of Pretoria):

Christof Heyns holds the degrees MA LLB University of Pretoria; LLM Yale Law School; and PhD University of the Witwatersrand. He is Professor of Human Rights Law and Co-director of the Institute for International and Comparative Law in Africa at the University of Pretoria. In August 2010 he was appointed as United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions. He is an adjunct professor at the Washington College of Law of the American University in Washington DC, USA, and a Visiting Fellow at Kellog College at Oxford University, UK, where he has been teaching in the masters’ programme since 2005. ... (much more at webpage)

Regards

Mike

[Polarbear1605]

I just finished reading the Ben Emmerson attachment…and it is a bit too righteous for my taste. First: Thanks to JMM99 for the two above posts. Second; a disclaimer; I am a retired military guy and ain’t no lawyer (no offense there JMM99). Like JMM99 I have some issues with that word “mandate” that Mr Emmerson seems to quick draw from his two holster gun belt.

As a military guy, Mr Emmerson also annoys me greatly because he quick draws another term…i.e “rule of law”. It annoys me because I see and hear our own (US) general officers draw, fire and then aim that term whenever they want to invoke an “all bark and no bite” conversation about war, COIN and strategy. Having said that indulge me, as I ask some questions.

Mr E. speaks of the “Rule of Law”… whose’s? US ROL? UK’s? Pakistan? international human rights ROL. And which one of these sets of ROL applies to non-state terrorist operating outside each jurisdiction?? On 9/11 the US had to make a decision between the ROL or the LOW. LOW always seemed the right choice to me.

Is international human rights that Mr E represents a ROL? Or “The drafters almost certainly believed that they were stating general principles, not laws that would be enforced by national courts...I can affirm that the administration I represented considered it primarily a diplomatic weapon”. IRL is the embodiment of “War is simply the continuation of political intercourse with the addition of other means”. In other words it is not law; it’s politics.

He mentioned the 474 civilians killed in Pakistan by drone strikes (including 176 children) but make no mention of the Afghanistan civilian casualties due to enemy (Taliban) activity?... it is in the thousands and been rising 30% per year since 2006. Why start with drone strikes Mr E. when so many more are the victims of enemy activity?

Mr E mentions a Pakistan citizen from Northern Waziristan receiving a judicial review from the High Court in London. How does a Pakistani from North Waziristan get a judicial claim for a drone attack through the ROL process all the way to London? Who is helping him?

Where is the argument for “self-defense Mr E? Not only is self-defense a universal principle but also it goes back as far as St Thomas Aquinas. As a county and as an individual we have a right to self-defense especially when a set of non-state extremists opening declare total war on all US citizens and prove it by collapsing two skyscrapers and killing nearly 3000 innocent civilians.

Why introduce the torture issue as an absolute when it is actually a debate because no one seems to have the political courage to define it? You know better…my opinion is here.

I suspect that Mr E. is more politics and less counter terrorism LOW for a number of reasons. He is trying to gather political support at the US expense and he is playing into the lawfare campaign of terrorist.

I have to think that Mr E. has it all wrong.

[jmm99]

except to segue into what he really wants to say.

Anyhow, I'm now a Retired Gentleman (a ripoff from Victor McLaughlin in "She Wore a Yellow Ribbon") - not a lawyer[*] ...

But, in answer to your question - Mr Emmerson will use any law he can argue (1) to defend his clients; and (2) to paint the USG as war criminals. What is ironic is that the USG is footing a good percentage of Mr Emmerson's "mandate" to make that happen.

[*]

Not being entirely stupid, my Mich license is still in effect (which also applies to the Federal Courts, including SCOTUS); but other than posts here, I've kept away from the rest of law for the past year.

Instead, I been working on my house (a Karate Kid type "wax on, wax off" approach to reach some semblence of physical condition), and some selected military readings (e.g., the BEF in WWI, including many personal memoirs from that conflict).

Regards

Mike

[jmm99]

Strikes (whether drone or other air, or boots on the ground direct actions) can be divided into two catagories, depending on what is known and unknown re: the target.

A "personality strike" is one targeting an individual whose identity and past and current activities are known. When the strike is conducted, those making the decision to engage are primarily concerned with (1) the degree of confidence that the particular individual is present; and (2) the extent of collateral damage that can be tolerated. UBL and al-Awlaki, for example.

A "signature strike" is one targeting an individual (or individuals) whose precise identity is (precise identities are) unknown or uncertain. Instead, the individual or individuals must match a pre-identified “signature” (a behavior set) that the targeter links to terrorist activity or association.

I expect we'll be hearing much more about "signature strikes".

The signature strike matrix below is strictly hypothetical (presented as a quote only to set it off):

A Signature Strike Matrix

(1) Individual(s) Planning Attacks

(2) Individual(s) Transporting Weapons (not incl. legal weapons ?)

(3) Individual(s) Handling Explosives

(4) Individual(s) in Terrorist Compound

(5) Individual(s) in Terrorist Training Camp

(6) Military-Age Male(s) in Known Terrorist Activity Area

(7) Individual(s) Consorting with Known Militants

(8) Armed Man(Men) Traveling (on foot)(in vehicles) in Terrorist-Controlled Area

(9) Individual(s) in Suspicious Camp located in Terrorist-Controlled Area

(10) Group(s) of Armed Men Traveling Toward Conflict Area

(11) Individual(s) Operating a Terrorist Training Camp

(12) Individual(s) Training to Join a Terrorist Group

(13) Individual(s) Facilitating a Terrorist Group

(14) Individual(s) in Terrorist Rest Facilities (Safe Houses)

Discuss, if you wish, the plusses and minuses of the matrix as written

- as well as

(1) the test you would use to include a factor (e.g., "more likely than not", "reasonable certainty", "high degree of confidence", etc., etc.);

(2) whether you would include or exclude each factor separately without considering the other factors (strict "must stand on its own" test); or would you aggregate all factors supported by some evidence, even where each such factor would not "stand on its own" ("conditional probability"); and

(3) whether other factors should be added to the matrix.

This doesn't require legalese.

Regards

Mike

[jmm99]

1. President Obama will target Al Qaeda operatives with drones and special forces. President Romney will target Al Qaeda operatives with drones and special forces.

2. President Obama will not close Guantanamo Bay and will follow a policy of indefinite detention. President Romney will not close Guantanamo Bay and will follow a policy of indefinite detention.

3. President Obama will use a combination of federal courts and military commissions to try suspected terrorists. President Romney will use a combination of federal courts and military commissions to try suspected terrorists.

4. President Obama will work to update the Authorization of the Use of Military Force (AUMF) and institutionalize its authorities. President Romney will work to update the Authorization of the Use of Military Force (AUMF) and institutionalize its authorities.

5. President Obama will not reinstate the Bush administration’s interrogation policies; but neither will he create any mechanism of accountability for those responsible for the Bush-era interrogations. President Romney will not reinstate the Bush administration’s interrogation policies; but neither will he create any mechanism of accountability for those responsible for the Bush-era interrogations.

6. President Obama will use warrantless wiretapping. President Romney will use warrantless wiretapping.

7. The "international legal community" will not approve of President Obama's policies; and the NY Times and Wash Post Editorial Boards will wring their hands about the lack of "international support". The "international legal community" will not approve of President Romney's policies; and the NY Times and Wash Post Editorial Boards will wring their hands about the lack of "international support".

HT to Ben Wittes for the basic concept.

Regards

Mike