The Rules - Engaging HVTs & OBL

[Ken White]

Seriously, I question any suggestion that AG Holder and LA Koh should embark on a lengthy defense of the legal justification for the OBL mission and result...At some point, they will get wobbly knees.

...very much agree with that...

Is our readership getting it ? I can't tell without feedback.

... think I do -- and I very much appreciate the effort that goes into it.

[jmm99]

I do want feedback. However, it would help if I spelled out the type of feedback that I think would be helpful to this topic - in general, as applied to future "kill or capture" missions.

Primo: The following are questions for non-lawyers. The number of lawyers around here are less than two handfuls of fingers.

Here's the primary question:

What standard(s) of "proof" should be used by an operator in a "kill or capture" mission ?

The standard of "proof" could be different for a "kill" vice a "capture".

First, some "working definitions".

As to the "Facts" ("Proof"):

Facts of the Event - all "evidence" (what a non-lawyer would take as material and credible) known to the operator before and during the event.

Facts of the Case - all evidence admitted in a subsequent proceeding to investigate or determine the event's legality.

In terms of the operator, the Facts of the Event should be the primary test since that is what he knew at the scene. The operator cannot be blamed for what he did not know (such as after-acquired evidence), or what is excluded by the Rules of Evidence. However, after-acquired exculpatory evidence should be considered - if afterwards, there is a "Case".

As to the Standards of Proof (as argued in Gitmo capture-detention cases - in my "more formal" Lima Bravo Sierra terms - OK, a concession to Stan ):

1. Preponderence of the evidence - "advance the ball to the 50 yard line + a nose"

2. Clear and Convincing Evidence - "advance the ball to usually successful field goal range."

3. Beyond a Reasonable Doubt - "advance the ball to the red zone or first and goal."

The higher standards (2 & 3) have been argued by detainees in the Gitmo habeas cases; and have been rejected by the DC Circuit in a number of cases. The standard used by that court has been "1. Preponderence of the evidence" (i.e., it is more likely than not that the captive-detainee was a "bad guy").

Note that, if "preponderence" is not met, it is more likely than not that the target is NOT a "bad guy".

The DC Circuit has suggested that a different, less restrictive standard might apply in capture-detention cases. Perhaps, some sort of "reasonable suspicion" standard might be developed - say, advancing the ball to somewhere between the 20 and 50 yard lines. In short, capture, detain and investigate (to reach or not reach the "preponderence standard"). Consider that possibility in your analysis.

Again, the standard of proof need not be the same for "kill" and for "capture".

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Here is why a Standard of Proof, consistent with reasonable military conduct employed by the operator, is important. It is so Neal Puckett or someone else can assert a Rule 916 Justification Defense in the operator's court-martial.

How to Keep Military Personnel from Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, Lieutenant Colonel W. A. Stafford, United States Marine Corps, Assistant Staff Judge Advocate, United States Southern Command, Miami, Florida (NOVEMBER 2000 20 THE ARMY LAWYER • DA PAM 27-50-336)

In addition to the defenses of self-defense and defense of others, military criminal law allows defenses of “legal duty” and “obedience to orders” as justification for homicide and assault.[194] However, to meet the justification of “legal duty,” the duty must be “legal” and “imposed by statute, regulation, or order.”[195] Similarly, the defense of “obedience to orders” fails if the accused subjectively or objectively knew the orders were unlawful.[196] Consequently, if the Standing ROE or Rules of Deadly Force are not grounded in law, a serviceperson could be held liable under the Uniform Code of Military Justice for exceeding the law.[197]

194. MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 916(c)-(e) [hereinafter MCM]. Under military law, homicide and assault are justified in self-defense and defense of another based on a reasonable apprehension that death or grievous bodily harm is “about to be inflicted” wrongfully. See id. R.C.M. 916(e).

195. Id. R.C.M. 916(c), discussion. “A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful . . . . The duty may be imposed by statute, regulation, or order.” Id. (emphasis added).

196. Id. R.C.M. 916(d). “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” Id.

197. If a killing or assault under the ROE or Rules of Deadly Force is unlawful, and the defenses of self-defense, defense of others, legal duty, or obedience to orders do not apply, a military member could be found guilty of murder or assault. See UCMJ arts. 118(b), 128; MCM, supra note 194, R.C.M. 916(c)-(e). Under the UCMJ, the elements of murder with “[i]ntent to kill or inflict great bodily harm” are: “(a) That a certain named or described person is dead; (b) That the death resulted from the act or omission of the accused; (c) That the killing was unlawful; and (d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.” UCMJ art. 118(b)(2). The elements of “[a]ssault consummated by a battery” are “(a) That the accused did bodily harm to a certain person; and (b) That the bodily harm was done with unlawful force or violence.” Id. art. 128(b)(2). Murder with intent to kill or inflict great bodily harm carries “such punishment other than death as a court-martial may direct,” including life imprisonment, a dishonorable discharge (for enlisted) or dismissal (for officers), and forfeiture of all pay and allowances. Id. art. 118(e). Assault carries a maximum punishment of dishonorable discharge, total forfeitures, and ten years confinement (for “[a]ssault in which grievous bodily harm is intentionally inflicted . . . with a loaded firearm”). Id. art. 128(e).

I don't know "why" many of these guys who write about combat rules are USMC; but they are (Mark Martins, of course, being a very notable exception).

Opinions about a specific event can differ, PBS, Rules of Engagement (eight interviews with Bing West, Josh White, Gen. James Conway, Neal Puckett, Lt. Col. David Bolgiano, Tim McGirk, Lucian Read, Gary Solis) - Full interview with Gen. Conway. Da Bear will have comments on this aspect of Kilo Coy.

My conclusion is that it is the job of the superior military officers (not their lawyers) to bring clarity to the rules. Lawyers can draft clear rules only when their superiors submit clear intent and guidance. To be blunt: A lawyer who is given free rein by his client (who then abdicates the scene) has a fool for a client.

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Now, our short case study - where clarity in spelling out the ROEs was not a military virtue (in the Corps, no less ).

IRAQ: To shoot or not to shoot is the question, July 2, 2008 (LA Times):

In the end, the criminal case against Marine sniper Sgt. Johnny Winnick (pictured) may boil down to the simplest but yet most confounding question facing troops in Iraq: When can a Marine or soldier use deadly force against a suspected insurgent?

It's a question not even supposed experts can agree on. During the preliminary hearing completed Wednesday, a Marine lieutenant testified that he asked two majors — one a lawyer, the other a battalion executive officer — and got contradictory explanations.

Winnick is charged with manslaughter and assault for killing two Syrians and wounding two others.

Winnick says he opened fire because he believed the men were planting a roadside bomb, but no bomb was found. His superiors say he lacked the "positive identification" and "reasonable certainty'' needed to squeeze the trigger.

But what do those terms mean, particularly for snipers whose job is to kill the enemy from ambush at long range?

Winnick's attorney, Gary Myers, tried to get one of Winnick's fellow snipers to define "reasonable certainty." The young Marine said that, well, reasonable certainty means being reasonably certain.

"This is all words," said an exasperated Myers.

An officer testified that reasonable certainty means being "85% certain." Another said it means being "pretty damn sure."

A Pentagon expert [JMM: David Bolgiano] called by Myers disagreed with the "85% certain" rule. He thinks young troops are being given confusing and contradictory guidelines by their superiors. He's written about his concerns in a tome titled "Combat Self-Defense: How to Save America's Warriors From Risk-Adverse Commanders and Their Lawyers."

What Standard(s) of "Proof" (expressed in your terms; not necessarily in "legal terms") would you like to see in "kill or capture" missions. E.g., you might suggest one standard for "kill" and another for "capture".

This question (IMO) is probably best answered by those with combat experience of one kind or the other; although as Jedburgh long ago advised me - let the thread go where the thread goes.

Regards

Mike

[jmm99]

Seems a bit odd that this was released as a blog post, but in any event, DoS Legal Adviser Harold Hongju Koh affirmed his March 25, 2010 ASIL speech; and went on specifically (reparagraphed to point up Mr Koh's five points):

Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda.

In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force.

By enacting the AUMF, Congress expressly authorized the President to use military force “against … persons [such as bin Laden, whom the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 …in order to prevent any future acts of international terrorism against the United States by such … persons” (emphasis added).

Moreover, the manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way.

Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

This is really OK - and Mr Koh's knees did not wobble - in his exclusive reliance on the Laws of War.

Regards

Mike

[jmm99]

as evidenced in The MMRMA Deadly Force Project, MMRMA = Michigan Municipal Risk Management Authority, the insurer for many municipalities.

As Legal Adviser Koh's statement makes clear, OBL was targeted because he was part of a force declared hostile (see this post for SROE ref). PID (that he was he) was sufficient to justify "shoot".

The Deadly Force Project involved a multi-scenario simulation geared to civilian law enforcement. I can't claim any sort of personal experience with those MI departments (Grand Rapids Police Department, Ingham County Sheriff’s Department, Kent County Sheriff’s Department, Livingston County Sheriff’s Department, Livonia Police Department and the Southfield Police Department):

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

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

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

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

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

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

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

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

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

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

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

Inter-Agency Shooting Variations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Imminent Danger:

• Threatened actions or outcomes that may occur during an encounter

• Threatened harm does not have to be instantaneous

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

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

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

Regards

Mike

[jmm99]

Direct actions (whether by drone or by men) are continuing - with a possible success being registered here, Mohammad Ilyas Kashmiri, commander-in-chief of the Kashmiri militant group Harakat-ul Jihad-i-Islami (purportedly on 3 Jun).

The Obama WH has been divided about drone strikes - and the degree to which Pakistan should be involved in the process, Administration Internal Divisions Over Drone Strikes in Pakistan? (by Ken Anderson at Volokh):

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

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

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

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

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

One consequence of the early “war on terror” years was that the lines between CIA and military activities got blurred. The Pentagon moved into clandestine areas that had traditionally been the province of the CIA. Special Forces began operating secretly abroad in ways that worried the CIA, the State Department and foreign governments.

The Obama administration is finishing an effort to redraw those lines more carefully, issuing a series of new executive orders (known as “EXORDS”) to guide the military’s intelligence activities, sometimes through what are known as “special access programs,” or SAPs.

The power of combining CIA and military resources was shown in the May 2 raid that killed Osama bin Laden. The firepower came from the Navy SEALs, a Special Forces unit that normally functions under the Title 10 war-fighting authority of the military. Because the SEALs were operating inside Pakistan, a country with which the United States isn’t at war, the CIA supervised the mission under Title 50, which allows the agency to conduct “deniable” activities overseas.

The system worked in the Abbottabad raid. But over the past 10 years, there have been instances when crossing the traditional lines created potential problems for the United States. It’s especially important to understand these boundaries now as Gen. David Petraeus prepares to take over as CIA director. If the rules aren’t clear, people at home and abroad may worry about a possible “militarization” of U.S. intelligence.

More in depth by Ken Anderson (6 Jun), Law and Order - Targeted killing is legitimate and defensible (emphasis added):

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

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

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

Regards

Mike

[Fuchs]

There are final adjudicators that all have agreed on.

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

[jmm99]

Ken Anderson covers a number of sources in the on-going policy debate underlying US use of drones, at Opinio Juris, Tactically Precise, Strategically Incontinent ? (by Kenneth Anderson, 25 Sep 2011).

The principal sources cited are the following:

Wash. Post, The price of becoming addicted to drones (by David Ignatius, 21 Sep 2011).

Report of the Special Rapporteur (Philip Alston) on extrajudicial, summary or arbitrary executions - Addendum: Study on targeted killings (28 May 2010).

Remarks of John O. Brennan, at the Harvard Law School (16 Sep 2011) [John Brennan, WH counterterrorism adviser, argued that U.S. legal authority to use force against al-Qaeda wasn’t “restricted solely to ‘hot’ battlefields like Afghanistan” but could be expanded to other theaters “without doing a separate self-defense analysis each time.”]

Three Quick Comments on David Ignatius’ Critique of Drones in Today’s Washington Post (by Kenneth Anderson, 22 Sep 2011) - making it clear that we have experienced and are experiencing something of a "counterterrorism" vice "counterinsurgency" dichotomy:

Second, the primary theorists of blowback in the Afghanistan war are theorists of counterinsurgency, and the specific application of the blowback thesis is that even if the counterterrorism drone policy works on its own CT terms, it undermines the counterinsurgency war because it damages the ability to win over populations. The extent to which the campaign actually has those effects can be debated. That has to include that asking populations if they’re resentful is not a purely neutral measurement of social science; it tends to signal to them that they get advantages out of being resentful. An awful lot of blowback has to do with the expectations of the population. Telling the local population (as the US did, for example, early on in the Iraq war) that if our war has not made them happy, then it is our fault, is very much a mechanism for foolishly raising the bar of expectations. But David Kilcullen and Andrew Exum, in their writings, for example, are talking about counterinsurgency, and counterterrorism’s effects on that. The Obama administration’s whole effort, however, is to get out of counterinsurgency, and quite rightly is worried far less about blowback arising from a switch in strategy to transnational CI.

Ignatius keeps talking, in column after column, about our “addiction” to drones. Why, instead, doesn’t he talk (as the Obama administration implicitly does) about our “addiction” to counterinsurgency, and see drones as the “cure” for that? It’s not as if counterinsurgency warfare in Afghanistan doesn’t have plenty of downsides and its own forms of blowback and bad unanticipated consequences, as the Obama administration and, for that matter, most of the American people, see it. Downsides starting with no end in sight and no clear avenue to a victory that allows an exit. The Obama administration sees counterterrorism as a realistic and, to date, functioning strategy against our actual long term adversary, and an exit for our addiction to the cul-de-sac of counterinsurgency, and why isn’t it right about that?

Wash. Post - Editorial Board Opinion: It takes more than drones (24 Sep 2011), "CT" + "COIN":

In our view the legal situation is straightforward. It’s been clear for more than a decade that al-Qaeda is a transnational organization that seeks to wage war against the United States from multiple foreign bases; especially in areas where national sovereignty has broken down, a U.S. military response is justified. It would be helpful if Congress would clarify this by passing legislation that renews the authorization of military force and stipulates that it can be used against al-Shabab and other al-Qaeda branches.

The harder question is whether the administration’s increasing reliance on drones is weakening what should be a much broader strategy. While militants can and should be picked off by targeted strikes in Yemen and Somalia, neither country will cease to be a source of terrorism until it can be stabilized under a responsible government. The United States has been trying to encourage a political settlement in Yemen that would end months of near-anarchy, and has been helping to fund and train Somalia’s transitional government and security forces. But the efforts have been underfunded and underambitious.

Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a ‘Legal Geography of War’ (Kenneth Anderson, 27 Apr 2011):

Abstract:

This brief policy essay examines the evolution of the argument around the proposition that there is a “legal geography of war.” By that term is meant whether the law of war applies only within certain geographically defined areas. It does so in the context of the war on terror and counterterrorism, and specifically in the debates over targeted killing and armed drone warfare.

The essay is a non-technical policy essay that is part of an online volume on current national security issues published by the Hoover Institution Task Force on National Security and Law. The essay's purpose is not to offer a formal legal argument on the proposition of a “legal geography of war,” but instead to reflect more discursively on how the communities of international law, policy, diplomatic, laws of war, military, intelligence, nongovernmental organizations, and international advocacy have debated this since 9/11. It argues that the Bush administration’s assertion of a global war on terror and its claims of the legal incidents of war on a worldwide basis caused a backlash among its critics, toward geographical constraints on war as formal legal criteria. This was a shift away from the traditional legal standard that war takes place, and the law of war governs, where(ever) there is “conduct of hostilities.”

Drones and targeted killing, insofar as they are asserted within the law of war, particularly strain the legal framework. However, as the Obama administration has moved away from the global war on terror as a means to widen the application of the law of war beyond the conduct of hostilities, legal views appear to be converging once again on the traditional “conduct of hostilities” standard. The essay concludes with a brief, speculative post-script on the meaning of the deployment of armed drones to the Libyan conflict, and how that deployment seems peculiarly to have shifted the perceived acceptability of drone warfare in a way that was not quite so evident when the issue was not humanitarian war in Libya, but the US’s wars of national security in Afghanistan and Pakistan.

Efficiency in Bello and ad Bellum: Targeted Killing Through Drone Warfare (Kenneth Anderson, 23 Sep 2011):

Abstract:

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

Regards

Mike