The Rules - Engaging HVTs & OBL

[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

[jmm99]

The initial decision of the ICTY condemning Gotovina and Markac to 24 years and 18 years imprisonment (they have been in detention since 2005) was reported here at posts 117, 118 & 119. The Amicus Brief (by US-UK military law experts) arguing reversal of the convictions is reported here at posts 120 & 121.

Reuters, Hague appeal tribunal frees jailed Croatian officers:

Svebor Kranjc
Reuters
9:39 a.m. CST, November 16, 2012

THE HAGUE (Reuters) - The most senior Croatian military officer convicted of war crimes during the Balkan wars of the 1990s was freed on appeal on Friday in a decision that will strain already fraught relations between Croatia and its old enemy Serbia.

General Ante Gotovina was cleared by appeal judges at the U.N. war crimes tribunal after being convicted of targeting hospitals and other civilian sites during a military operation to retake Croatia's Krajina region from rebel Serbs.

Gotovina, hailed as a hero at home but reviled in neighboring Serbia, was freed along with Croatian police commander Mladen Markac. ... (more in story)

Since it was set up in 1993, the tribunal has indicted 161 people for crimes committed during the Yugoslav wars, of whom only 14 have been acquitted.

ICTY, The Hague, 16 November 2012: Appeals Judgement Summary for Ante Gotovina and Mladen Markač:

...
The Appeals Chamber recalls that the Trial Chamber concluded that the Appellants were members of a JCE whose common purpose was to permanently remove Serb civilians from the Krajina by force or threat of force. The Trial Chamber’s conclusion that a JCE existed was based on its overall assessment of several mutually-reinforcing findings. The Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that the touchstone of the Trial Chamber’s analysis concerning the existence of a JCE was its conclusion that unlawful artillery attacks targeted civilians and civilian objects in the Four Towns, and that these unlawful attacks caused the deportation of large numbers of civilians from the Krajina region.

The Trial Chamber’s finding that the artillery attacks on the Four Towns were unlawful was heavily premised on its analysis of individual impact sites within the Four Towns, which I will refer to as the “Impact Analysis”. This Impact Analysis was in turn based on the Trial Chamber’s finding a 200 metre range of error for artillery projectiles fired at the Four Towns, which I will refer to as the “200 Metre Standard”. Based on this range of error, the Trial Chamber found that all impact sites located more than 200 metres from a target it deemed legitimate served as evidence of an unlawful artillery attack. In identifying legitimate targets, the Trial Chamber took into account, in part, its finding that the HV could not identify targets of opportunity, such as moving police or military vehicles, in the Four Towns.

The Appeals Chamber unanimously holds that the Trial Chamber erred in deriving the 200 Metre Standard. The Trial Judgement contains no indication that any evidence considered by the Trial Chamber suggested a 200 metre margin of error, and it is devoid of any specific reasoning as to how the Trial Chamber derived this margin of error. The Trial Chamber considered evidence from expert witnesses who testified as to factors, such as wind speed and air temperature, that could cause variations in the accuracy of the weapons used by the HV against the Four Towns, and the Trial Chamber explicitly noted that it had not received sufficient evidence to make findings about these factors with respect to each of the Four Towns. In its Impact Analysis, however, the Trial Chamber applied the 200 Metre Standard uniformly to all impact sites in each of the Four Towns.

In these circumstances, the Appeals Chamber is unanimous in finding that the Trial Chamber erred in adopting a margin of error that was not linked to the evidence it received.

With respect to targets of opportunity in the Four Towns, the Appeals Chamber holds that the Trial Chamber did not err in determining that the HV had no ability to strike targets of opportunity in the towns of Benkovac, Gračac, and Obrovac. However, the Appeals Chamber notes that the Trial Chamber was presented with, and did not clearly discount, evidence of targets of opportunity in the town of Knin. In this context, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, holds that the Trial Chamber erred in concluding that attacks on Knin were not aimed at targets of opportunity.

The Appeals Chamber, Judge Agius and Judge Pocar dissenting, recalls that, while the Trial Chamber considered a number of factors in assessing whether particular shells were aimed at lawful military targets, the distance between a given impact site and the nearest identified artillery target was the cornerstone and organising principle of the Trial Chamber’s Impact Analysis. The Appeals Chamber, Judge Agius and Judge Pocar dissenting, holds that the Trial Chamber’s errors with respect to the 200 Metre Standard and targets of opportunity are sufficiently serious that the conclusions of the Impact Analysis cannot be sustained. Although the Trial Chamber considered additional evidence in finding that the attacks on the Four Towns were unlawful, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, holds that, absent the Impact Analysis, this remaining evidence is insufficient to support a finding that the artillery attacks on the Four Towns were unlawful.

In view of the foregoing, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, finds that no reasonable trial chamber could conclude beyond reasonable doubt that the Four Towns were subject to unlawful artillery attacks. Accordingly, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, grants Mr. Gotovina’s First Ground of Appeal, in part, and Mr. Markač’s Second Ground of Appeal, in part, and reverses the Trial Chamber’s finding that the artillery attacks on the Four Towns were unlawful.

Thus, the major point made by the US-UK Amicus Brief was sustained by the appellate court and the defendants released.

Regards

Mike

[jmm99]

HT to Ken Anderson for, Readings: Autonomous Weapon Systems and Their Regulation (December 11, 2012), and Readings: Jeffrey S. Thurnher on Law of Armed Conflict Applied to Autonomous Weapon Systems (January 19, 2013).

The two articles by MAJ Jeffrey S. Thurnher (an Army JAG officer on the faculty at the Naval War College), The Law That Applies to Autonomous Weapon Systems (ASIL Insights, January 18, 2013, Volume 17, Issue 4) (6 pp.), and No One at the Controls: Legal Implications of Fully Autonomous Targeting (Joint Force Quarterly, National Defense University, Washington DC, Vol. 67, No. 4, Oct. 2012) (8 pp.), provide easy entry into complicated subject matter.

From Thurnher's first article, the legal BLUF (snips from several pages):

The Law: How to Determine the Lawfulness of a Weapon System

It is incontrovertible that the law of armed conflict applies to autonomous weapon systems. When determining the overall lawfulness of a weapon system, there are two distinct aspects of the law that need to be analyzed: weapons law and targeting law. ...
...
When analyzing whether the weapon system itself is lawful, there are two distinct rules that apply. The first rule is that the weapon system must not be indiscriminate by its very nature. A weapon is deemed indiscriminate by nature if it cannot be aimed at a specific target and would be as likely to strike civilians as combatants. ...
...
The second rule, codified in Article 35(2) of Additional Protocol I, is that a weapon system cannot cause unnecessary suffering or superfluous injury. ...
...
Assuming the particular weapon satisfies the above weapons law rules, the weapon must still be examined under targeting law to determine whether the actual use of the weapon might be prohibited in some manner. To conduct this analysis, three core law of armed conflict requirements are particularly salient: distinction, proportionality, and precautions in the attack. ...
...
The first requirement is distinction. Distinction is the most fundamental principle of the law of armed conflict. A customary law principle, distinction obliges a combatant to distinguish between combatants and civilians, as well as between military and civilian objects. ...
...
The second requirement, proportionality, requires combatants to examine whether the expected collateral damage from an attack would be excessive in relation to the anticipated military gain. ...
...
The third and final core requirement is the obligation to take feasible precautions in the attack. ... With all of the required precautions in attack, there is inherently a value judgment about whether all feasible steps have been taken. How autonomous systems will reasonably make this value judgment may prove to be one of the biggest challenges in terms of compliance. Ultimately if a country intends to use an autonomous weapon system on a battlefield, it must ensure that the system can adequately take these feasible precautions.

Thus, Thurnher is satisfied that a particular AWS will or will not pass muster based on existing law.

His second article is concerned with the operational commander's responsibilities in controlling the AWS - here, lethal autonomous robots (LARs). He recommends four basics:

First, operational commanders need to ensure that all LARs have the proper rules of engagement (ROE), tactical directives, and other national caveats embedded in their algorithms. Moreover, commanders must ensure that any revisions to the ROE or directives are rapidly inputted into and incorporated by the LARs. Unmanned underwater systems, particularly those without regular communications with the headquarters, may prove to be the most challenged in this arena. For LARs that cannot make such adjustments while deployed, commanders need to ensure those systems can be recalled and then reprogrammed quickly.

Second, commanders should limit when and where LARs are employed to avoid potential proportionality issues. Geographically, LARs are best suited to engage targets in areas where the likelihood of collateral damage is reduced, such as underwater or in an area like the demilitarized zone in Korea. Regardless of geography, LARs might be appropriate when the target is one of particularly high value. In such situations, a commander may have fewer proportionality concerns or might at least be able to quantify the amount of acceptable collateral damage. Utilizing LARs only in specific geographic environments or when pursuing high value targets would alleviate many of the critics’ proportionality concerns and best protect operational commanders.

Third, operational commanders should carefully examine the type of conflicts where they might deploy LARs. They would be wise to use LARs predominantly during high-intensity situations where the ROE are status-based, meaning there is a declared hostile force to attack. Those declared hostile forces would then be more easily recognizable, eligible targets for LARs. LARs are less appropriate in counterinsurgency or irregular warfare situations, where “the blurring of the lines between civilian and military is a commonplace occurrence.” Similarly, commanders may also want to restrict LARs in emergency situations where the proposed target is not already on a preset list of targets. In such irregular fights and in emergency situations, the legal authority to engage with lethal force is more often conduct-based and thus contingent upon an enemy demonstrating a hostile intent or engaging in a hostile act. Given the higher degree of difficulty in identifying targets and the greater distinction concerns, the best approach may be to avoid using LARs under these circumstances. Prudent commanders should only use LARs in appropriate situations and recognize when it is best to resort to manned systems instead.

Lastly, LARs should be required to have some version of a human override, sometimes referred to as software or ethical “brakes.” The systems should be able to be shut down or recalled immediately upon a commander’s order. Commanders should also establish triggers for when LARs must seek human guidance before engaging a target. For instance, when a LARs system identifies expected collateral damage greater than a predetermined acceptable limit, it could be forced to seek guidance from the command before engaging that target. Commanders would need to establish protocols and support structures to facilitate quick decisionmaking for these potential targets. In these circumstances, human decisionmakers need a high degree of clarity about what situation the robot is facing. This oversight would not be effective if the human operator were merely a rubber stamp to approve an engagement. With prudent additional control measures such as these, commanders can more safely employ LARs on the battlefield and better protect themselves and their commands.

The AWS CO has to be soundly based in the technologies of the system, and also in the legal requirements governing use of the system.

The DoD has provided a definitive set of principles applicable to these weapon systems: Ashton B. Carter, Deputy Secretary of Defense, “Autonomy in Weapons Systems,” Department of Defense Directive, Number 3000.09, November 21, 2012.

The other side of the debate ranges from the more emotional - Noel Sharkey, “America's Mindless Killer Robots Must Be Stopped: The rational approach to the inhumanity of automating death by machines beyond the control of human handlers is to outlaw it,” Guardian, December 3, 2012 - to the very scholarly intended for academic publication - Human Rights Watch and Harvard Law School International Human Rights Clinic, “Losing Humanity: The Case Against Killer Robots,” November 19, 2012. Their bottom line is the same - an absolute ban before they breed and multiply.

We have three responses to the Human Rights Watch and Harvard Law School International Human Rights Clinic report.

Michael N. Schmitt, International Law Department, US Naval War College, “Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics,” SSRN Working Paper, Draft of December 4, 2012.

William Marra and Sonia McNeil, “Understanding “The Loop’: Regulating the Next Generation of War Machines,” 36 Harvard Journal of Law and Public Policy 3 (2013), Lawfare Research Paper Series 1-2012.

Kenneth Anderson and Matthew Waxman, “Law and Ethics for Robot Soldiers,” Policy Review, December-January 2012-13 (final published version at Policy Review here, and working draft with footnotes at SSRN here).

Finally, for those wishing to get down into the legal weeds with M-A Lagrange and JMM99, see this SWC thread from late 2011 and early 2012, New technologies and war legislation: a progress? (a conversation started by Marc-Andre, which deals primarily with Geneva's view toward new weapons technologies).

Regards

Mike

[jmm99]

Late last year, the Washington Post broke a series of stories dealing with drones and targeted killings, including Plan for hunting terrorists signals U.S. intends to keep adding names to kill lists (by Greg Miller, 23 Oct 2012):

Over the past two years, the Obama administration has been secretly developing a new blueprint for pursuing terrorists, a next-generation targeting list called the “disposition matrix.”

The matrix contains the names of terrorism suspects arrayed against an accounting of the resources being marshaled to track them down, including sealed indictments and clandestine operations. U.S. officials said the database is designed to go beyond existing kill lists, mapping plans for the “disposition” of suspects beyond the reach of American drones.

Although the matrix is a work in progress, the effort to create it reflects a reality setting in among the nation’s counterterrorism ranks: The United States’ conventional wars are winding down, but the government expects to continue adding names to kill or capture lists for years. ... (more in story)

Bobby Chesney's comments on this story are here, Kill Lists, the Disposition Matrix, and the Permanent War: Thoughts on the Post Article (24 Oct 2012).

Last week, WP added to the stew with CIA drone strikes will get pass in counterterrorism ‘playbook,’ officials say (by Greg Miller, Ellen Nakashima and Karen DeYoung, 19 Jan 2013):

The Obama administration is nearing completion of a detailed counterterrorism manual that is designed to establish clear rules for targeted-killing operations but leaves open a major exemption for the CIA’s campaign of drone strikes in Pakistan, U.S. officials said.

The carve-out would allow the CIA to continue pounding al-Qaeda and Taliban targets for a year or more before the agency is forced to comply with more stringent rules spelled out in a classified document that officials have described as a counterterrorism “playbook.”

The document, which is expected to be submitted to President Obama for final approval within weeks, marks the culmination of a year-long effort by the White House to codify its counterterrorism policies and create a guide for lethal operations through Obama’s second term. ... (more in story)

Bobby Chesney's comments on this story are here, Lethal Force Beyond the Battlefield: The Post’s “Playbook” Article (21 Jan 2013):

What does this portend for the use of armed drones going forward? It seems to me that this is yet another piece of evidence suggesting that the US government will continue to assert authority to use lethal force for counterterrorism purposes in at least some situations, outside the context of conventional conflict. Not that this is a big surprise. ... (more in article)

Barring an unforeseen Damascus moment, all the evidence suggests that US drone strikes will continue under a war paradigm - probably a "refined" paradigm, but still a war paradigm which will largely remain classified. See, U.S. drone strikes in Pakistan on rise for 2013 (by Greg Miller, 10 Jan 2013):

The CIA has opened the year with a flurry of drone strikes in Pakistan, pounding Taliban targets along the country’s tribal belt at a time when the Obama administration is preparing to disclose its plans for pulling most U.S. forces out of neighboring Afghanistan.

A strike Thursday in North Waziristan was the seventh in 10 days, marking a major escalation in the pace of attacks. Drone attacks had slipped in frequency to fewer than one per week last year.

Current and former U.S. intelligence officials attributed the increased tempo to a sense of urgency surrounding expectations that President Obama will soon order a drawdown that could leave Afghanistan with fewer than 6,000 U.S. troops after 2014. The strikes are seen as a way to weaken adversaries of the Afghan government before the withdrawal and serve notice that the United States will still be able to launch attacks. ... (more in story)

This continuation of the war paradigm (over what is now four presidential terms !) will, no doubt, discomfort any number of US "coalition partners", as exemplified by this story from Deutsche Welle last week, Should drone strikes be considered lawful? (18 Jan 2013):

Those opposed to drones, however, compare targeted killing to extrajudicial and state-sanctioned murder. They challenge the notion that targeted killing takes place in the context of war; the US and Pakistan, for example, are not at war with each other.

That is a crucial point in international law. In the case of war, the victims are combatants, the killing of whom can be justified under laws of war.

But if aggressors and victims are not at war, targeted killing is, technically speaking, illegal. That is, of course, unless the person or people killed posed an immediate danger to others - like a fatal shot fired by police at a hostage taker to save the lives of the hostages. ... (more in story)

The BLUF of the comments by DW's expert (Armin Krishnan) is that present US drone strike policy is illegal under the German view of law (domestic and international). See also DW, The legal gray zone of drone attacks (23 Jul 2012):

A US drone attack claimed its first German victim, a suspected Muslim fundamentalist, in 2010. A German federal investigation into the incident has reignited debate about the use of unmanned aircraft.

Shortly before his death, a man named in reports as Bunyamin E. travelled to the Pakistani region of North Waziristan, an Islamist stronghold. On October 4, 2010, a missile strike by a US drone struck the suspected radical Islamist along with a number of companions.
...
Federal German legal authorities are now investigating the controversial tactic after a nearly two-year long process of determining whether such an investigation is within the scope of their office. The US is operating in a legal gray zone and may have violated international law. Jochen Hippler of the Duisburg Institute for Development and Peace sees the drone attacks in Pakistan as especially problematic since they go against the will of the Pakistani government - at least officially.

"On the one hand, we have the problem that military attacks against a country with which one is not at war violate international law," the expert told DW. He believes a further problem lies in the killing of people merely suspected of being Islamic extremists: "In the US and in Germany, people have argued with good reason that the drone attacks represent capital punishment for people who have been accused of a crime without being given a trial." ... (much more in story)

Of course, the viewpoints expressed by DW's experts are based on application of a peace paradigm.

The situation (divergent views between the US and many of its NATO partners) reminds one of the pre- and post-WWI strategical disconnects analysed by Andre Beaufre. Pre-WWI, the lines were rather clearly drawn between the political struggle (the peace paradigm) and the military struggle (the war paradigm). After WWI, and especially after WWII with the advent of the Cold War and Nuclear Armament, the political and military struggles became mixed - as Gen. J. L. Collins titled it - "War in Peacetime".

Following Beaufre's logic, it seems doubtful that we can return to the simplicity of the 19th century where Peace was peace, War was war, and ne'er the twain shall meet. We will most likely continue to see situations which do not really fit either a pure peace paradigm or a pure war paradigm. Those situations will create both strategic and legal problems.

Regards

Mike

[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.”
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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