The Rules - Engaging HVTs & OBL

[jmm99]

here continuing to resource the O'Connell arguments in opposition to my conclusions (and the current USG position) ...

Combatants and the Combat Zone, Mary Ellen O'Connell, Notre Dame Law School, January 23, 2009

Abstract:

Following the attacks of 9/11, President George W. Bush declared that the United States was in a "global war on terrorism". His administration claimed the wartime privileges to kill without warning and detain without trial anyone suspected of association with terrorist organizations anywhere in the world. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender.

Preserving the Peace: The Continuing Ban on War between States, Mary Ellen O'Connell, Notre Dame Law School, July 22, 2008

Abstract:

The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the three primary sources of international law yield important rules restricting the use of force. The rules on use of force, like all international law rules, are binding on states for the same reason the law of any jurisdiction binds - because it is accepted as law by the community.

The following remarks on the rules regulating the use of force are divided into three parts. Part I provides a brief history and overview of the current rules on the use of force. Part II applies these rules to assertions that the United States could lawfully attack Iran today. Part III then discusses why these rules are binding as law and answers arguments to the contrary. These remarks will, therefore, touch on the past, present, and future of the law on the use of force to preserve the peace between states.

The Myth of Preemptive Self-Defense, Mary Ellen O’Connell, Professor of Law, The Moritz College of Law and Associate of the Mershon Center for International Security and Public Policy, The Ohio State University, August 2002 (emphasis added):

Conclusion

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

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

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

Regards

Mike

[jmm99]

Pakistan's Sovereignty and the Killing of Osama Bin Laden, By Ashley S. Deeks, May 5, 2011.

This article tends to a Fiddler on the Roof methodology - on one hand, on the other hand; on one hand, on the other hand ... I have long since reached the point where there is no other hand; although, I suppose there is still that "but" in my "Never Again, but ..."

Here is Ms Deeks BLUF:

Conclusion

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

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

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

[1] Jane Perlez & David Rohde, Pakistan Pushes Back Against U.S. Criticism on Bin Laden, N.Y. Times, May 3, 2011.

[2] See, e.g., John Bacon, Musharraf: U.S. Violated Pakistan’s Sovereignty, USA Today, May 3, 2011,

Pstan's remedy under I Law was elected and made by it.

I don't see that process (state to state "interaction") as malign. However, those who would like to see a "World Court" take jurisdiction, are inclined to follow along with the 1986 ICJ Nic Farce (cited in the article):

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

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

Regards

Mike

[LawVol]

I came across this today: UN wants answers

the money quote:

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

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

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

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

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

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

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

[LawVol]

For those rejecting the requirement of a nexus netween location of a combatant and the lawfulness of the target: when do US personnel become a lawful target?

Is the President a lawful target despite the fact that he is not in a combat zone? He does direct the war effort, right? What about Joe Schmoe back on the block? Is he a lawful target while he's chillin' in front of his TV? If not, how do you distinguish the lawfulness of targetting bin Laden while he is off the battlefield?

stirring the pot...

[jmm99]

looks like you're rolling along.

The UN's Future Role & One's Worldview

Briefly on the UN. An elite, influential and well-financed group expreses its opinions (Ms O'Connell is but one of many) - and attempts to shape I Law, the "Rule of Law" and the "Laws of War" - along with their Worldview of UNC Art. 2(4). That, in its purest state to them, would expressly say: "Members shall not employ force or the threat of force except upon express authority granted by the UN." The UN then would have, in a Weberian sense, a monopoly on the lawful use of force (violence) - and, in Weberian terms, would become the transnational state.

We who believe otherwise should not delude ourselves into thinking that this challenge can be met by well-stated legal arguments. Those are a waste of time and effort for the most part. What is required is Political Struggle to marginalize them (non-violent, of course, following Gene Sharp) using a methodology similar to that used by the NRA and the Second Amendment Foundation.

FYI, the present UNC Art. 2(4) is:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

and could be re-phrased as follows (going from a negative commandment to a positive allowance with negative exceptions):

All Members in their international relations may employ the threat or use of force provided that threat or use of force is neither against the territorial integrity or political independence of any state, nor in any other manner inconsistent with the Purposes of the United Nations.

One's Worldview definitely enters into this discussion.

----------------------------------------
Who can kill Whom ?

from Da LawVol
[1] Is the President a lawful target despite the fact that he is not in a combat zone? He does direct the war effort, right? [2] What about Joe Schmoe back on the block? Is he a lawful target while he's chillin' in front of his TV? [3] If not, how do you distinguish the lawfulness of targetting bin Laden while he is off the battlefield?

1. To a combatant with combatant immunity, POTUS is a lawful target because of his CinC position. To a combatant without combatant immunity, no one is a lawful target because that combatant can be prosecuted in a court of law. To which threat, that combatant probably says "Big Deal. FO" and goes about his business. In state to state conventional warfare, targeted killings of CinCs have been avoided as a matter of comity (not illegality).

2. Joe Schmoe - what channel is he watching: FoxNews, CNN or MSNBC ? Seriously, going the other way (Us vs Them), the issues under US law hinge on a person being (1) "part of" a TVNSA; (2) part of an "affiliated group"; OR (3) a "provider of material support" to such a group or groups. Again, To a combatant without combatant immunity, no one is a lawful target because that combatant can be prosecuted in a court of law. In which case, he is not likely to be carried by six.

3. Mandatory reading is Executive Order 12333 and Assassination (1989, by W. Hays Parks) - never bettered in 9 pages:

In a Memorandum of Law originally dated November 2, 1989, W. Hays Parks, Special Assistant for Law of War Matters to The Judge Advocate General of the Army, examined national and international legal interpretations of assassination in order to provide guidance in revising a U.S. Army Law of War Manual. The memo is not a statement of policy, but rather a discussion of the definition of assassination and legal issues to consider in its application, including levels of conflict and the distinction between assassination in wartime and peacetime. It explores the meaning and possible application of assassination - which is prohibited as a matter of national policy by Executive Order 12333 - in conventional, counterinsurgency, and counter-terrorist operations. The memo concludes that the use of military force against legitimate targets that threaten U.S. citizens or national security as determined by the President does not constitute assassination and would therefore not be prohibited by Executive Order 12333 or by international law.

This memo, in truth, was written by a Marine for Marines, who (as Polarbear1605 has recently advised me) can only read one word at a time.

Regards

Mike

[LawVol]

You're reworded version of Art 2(4) is how I've always viewed it. That put me in the minority among my multi-national peers at McGill. I know there are many who subscribe to the worldview you mentioned, but it that really a serious threat? Maybe I just haven't been paying attention or I read the wrong stuff. It would seem that state action negates any possibility of this view being cemented. And given China's views on sovereignty, they would actually ally with the US on this issue I think.

Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense. But what about so-called freedom fighters? By this I'm referring to the Geneva protocol (the first I think) that redefines combatant to remove the requirement of a uniform. I'm going off memory here, so I could have it a bit off. Let's assume we're fighting Hamas (which would probably fall within this status) or even the Iraq Republican Guard circa 2003. Would Joe be a lawful target to them while he's chillin' in Bean Town?

A secondary consideration to consider: if we say a Talib conducting a mission in Boston has no lawful target due to his status, are we being consistent? Another words, we treat him as a criminal, but not when it comes to engaging him. Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? If a member of a state force commits war crimes, can't he still engage lawful targets later on? Am I making sense here or do I need to restate?

[jmm99]

Leaving the Sidedish and Back to the Meat

1949 and 1977 GCs, etc., quoted below, etc. - at ICRC, The Geneva Conventions Index.

from LawVol
[1] Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense. [2] But what about so-called freedom fighters? By this I'm referring to the Geneva protocol (the first I think) that redefines combatant to remove the requirement of a uniform. I'm going off memory here, so I could have it a bit off. [3] Let's assume we're fighting Hamas (which would probably fall within this status) or even the Iraq Republican Guard circa 2003. Would Joe be a lawful target to them while he's chillin' in Bean Town?

Taking the three parts separately.

1. "illegal combatant"

[1] Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense.

Probably better than "illegal combatant" or "unlawful combatant" would be a division between "combatant with combatant immunity" and "combatant without combatant immunity". Of what "immunity" do we speak ? We speak of "immunity" from prosecution for a "civilian" crime or a "military" crime - homicide, maiming and kidnapping would be the generic equivalent of the acts granted "immunity" on the battlefield. The "immunity" is conditional and requires compliance with the "rules of warfare" on the part of the combatant and the group he fights for.

Me thinks that is a tempest in a teapot for folks engaged in irregular warfare as irregular combatants (who may or may not be "combatants with combatant immunity"). If they are facing death or indefinite detention simply because they are an irregular combatant (a Common Article 3 combatant), the prospect of being captured and tried before a civilian court or military commission is not likely to be a material consideration as they consider combat.

That seems to be the case with all TVNSA (Transnational Violent Non-State Actors) and DVNSA (Domestic Violent Non-State Actors) groups. None of them have (to my knowledge) availed themselves of the opportunity to avail themselves of protected status, by accepting and applying the Geneva Conventions, under the option of Common Article 2 (para 3) of the 1949 GCs (emphasis added):

Art. 2.

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

That option has been available to AQ, the various Taliban and all the other groups of consequence ("Powers") in an "armed conflict" involving one or more Contracting Parties to the Conventions.

Why have these VNSAs not availed themselves of Common Article 2 ? Because they want to have their cake and eat it - in short, to be transitory combatants who can turn their civilian status off (to become combatants when they "directly participate in hostilites") and then on again as they cease being "hostile" and return to hiding among the civilians.

2. But what about so-called freedom fighters?

Additional Protocal I (1977) - not accepted by US, but accepted by most ISAF partners - amends Common Article 2 drastically, by its Art. 1 (emphasis added):

Art 1. General principles and scope of application

1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances.

2. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

Please note the use of "self-determination" - a term with which I am very uncomfortable, unless it is defined in a mutually-agreed "working definition" with whomever is discussing the term.

The "transitory combatant" provisions are based on Art. 1(4) and on Art. 43 (emphasis added):

Art 43. Armed forces

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

and with more exemplification in Art. 44 and 45.

These provisions make the option of Common Article 2 (that available to all Powers in a conflict) mandatory - including "compliance with the rules of international law applicable in armed conflict", Art. 43(1).

Thus, along with the combatant immunity provided by Art. 43(2), goes a reciprocal obligation to apply the rules of armed conflict. Is there a guerrilla group (there must be at least one ) that applies the rules of armed conflict ? If not, then they should be prosecuted for "war crimes", shouldn't they ? Of course, to a dedicated fanatic, the threat of potential criminal prosecutions would seem to a "Big Deal ! FO" situation.

3. Would Joe be a lawful target to them while he's chillin' in Bean Town?

Joe is presumptively a civilian; and can be detained only for reasons of security by (say) an occupying power. He can be whacked only if he is in some way participating (let's leave aside the "directly" or not issue) in an armed conflict. The strength of legal argument for whacking him runs downhill from (1) he is "part of" an armed force; (2) he is part of an "affiliated group" to an armed force; OR (3) he is a "provider of material support" to such a force or forces.

Last point

from LawVol
A secondary consideration to consider: if we say a Talib conducting a mission in Boston has no lawful target due to his status, are we being consistent? Another words, we treat him as a criminal, but not when it comes to engaging him. Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? If a member of a state force commits war crimes, can't he still engage lawful targets later on? Am I making sense here or do I need to restate?

You probably need to restate. My Colonial Marine ancetors were "a-letter-rate"; I h a v e t o r e a d o n e l e t t e r a t a t i m e; some were illiterate cuz their mothers were'nt married (what a dumb joke); and none went to McGill Univ.

Beyond all that, you are mixing your Laws of War and Rule of Law. Here's my analysis:

The Talib is on a military mission wherein he is directly participating in hostilities (if he's not, this line of analysis does not apply) by killing Mark Martins as he emerges from the sacred entrance of Harvard Law. The Talib is a combatant under either the 1949 Geneva Conventions (Common Article 3) or under Additional Protocol I (Talib "self-determination" and all that ). If he wastes Martins in an approved "Hague-Geneva" manner, he has committed no "war crime". However, if only the 1949 GCs apply, the Talib could be prosecuted for any number of US Code violations.

I don't see the problem here - except the Tallib is not likely concerned with having to appear in Federal Court.

To the subsidiary questions:

Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? - YES.

If a member of a state force commits war crimes, can't he still engage lawful targets later on? - YES

Regards

Mike

[Bill Moore]

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

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

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

.

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

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

Did we illegally kill an American?

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

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

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

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

More at the site.

[jmm99]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I agree that Points 1 and 2 are required.

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

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

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

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

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

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

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

Regards

Mike

[Bill Moore]

Mike,

Thanks for the post. When addressing your comments on "secret" stuff, one really needs to first ask if this is really "secret" stuff if it is being discussed in the media? A covert operation means that the sponsor has plausible denial, if the sponsor talks about the operation in the media it is no longer covert, and you have to wonder if title 50 rules apply? The article I quoted from above also suggested that it is not a war crime if a CIA operative pulled the trigger because they're not in the military. That of course can lead to a slippery slope, and it gets to your comment about points one and two being required.

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

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

What constitutes an armed conflict? We are openly in an armed conflict with Al Qaeda and their associates, but let's look at the problem set from a wider perspective.

If another terrorist organization (not even associated with extreme Islam) decided to target the U.S. (let's say a new left wing terrorist organization in Latin America) and we had good intelligence on them, and had low confidence the ability and will of the host nation they were residing in to arrest them,then could the CIA conduct a covert operation to conduct a preemptive strike? We're not in an armed conflict, but we have reliable intelligence they will conduct a terrorist attack against U.S. interests.

Would the military be able to do this under title 10?

I don't get overly excited about population centric COIN and nation building as it relates to CT. They generally have little effect, and we have the authorities to them, so we can keep experimenting until the cows come home, but the real issues that relate to defending the nation is the authority to take action to prevent an attack. What keeps me up at nights is the emergence of super empowered non-state actors who decide to target the U.S. and without a declared state of armed conflict we have our hands tied when it comes to pre-empting these threats.

Some will take this as advocating for a broad license to kill which isn't the case, but rather I'm advocating for a better legal process that allows us to defend our nation from these threats that is acceptable to our law makers and our people (morally acceptable) because it is in line with our constitution and values.

We both know if we allow an attack to happen and we knew it was coming, but we failed to act due to legal ambiguity then that will not be acceptable to anyone. It is easy to criticize the targeting of Awlaki because most Americans (and Europeans) didn't understand his significance. Of course, if he dispatched another Christmas bomber that was successful the people would rightfully hold the government responsible for taking preventative measures. It is possible now a days to have virtual blood on your hands.

[jmm99]

Bill Moore: I'll get to your concerns about preventing a TVNSA's attack in another post.

Here are some responses to the leaking of the now "non-secret memo":

At Lawfare:

Philip Bobbitt on Leaks and Legal Rationales (Bobbitt at Amazon):

I don’t know if this is a “middle way” but I would have preferred that the Administration take the position that an internal legal memo is privileged, and that maintaining that privilege is pretty important to the Executive Branch; that for that reason it was irresponsible of whoever leaked it to Savage. At the same time, there is an important constitutional point at issue here, and the president has a responsibility to tell us how he resolved this matter and what his constitutional reasons were. These might or might not track the memo, and ought in any case to be given in a different form, and released to the public.

This is related to what used to so irritate me about the Bush signing statements. I didn’t have a problem with the substance — that a president can refuse to enforce statutory language he deems unconstitutional — but rather with the fact that the statements were little more than boiler-plate repetitions of that general point. The president’s not explaining his position is rather like an appellate court saying to the parties to a dispute, “You win. You lose. Let’s have lunch.”

This point about presidential “doctrinal” argument is a crucial one, as we enter into that sphere of constitutional matters that are largely non-justiciable.

and, Ben Wittes on Ken Anderson and Ben's own comments on "advocacy by leakage":

I doubt very much that this is an entirely unauthorized rogue “leak” – in the sense that there are secrets here that the government very much wants to keep but that some individual decided on his or her own to disclose. I suspect, rather, that this is a situation in which the government – or some senior official therein – has decided to disclose the memo without disclosing it. This approach is fully consistent with the larger strategy of the administration on the subject of drones and targeting killing – to talk about the subject a great deal by way of claiming credit for big counterterrorism successes but to do so without talking about it at all officially. And it’s wrong. Either this program is a secret, in which case the government should stop talk to Charlie about it, or it’s not a secret, in which case it should figure out what is releasable in the memo and release it. There is no middle ground here – no legitimate middle ground, anyway – in which the right approach is coyness.

The NYT (Brisbane) on Ken Anderson:

Kenneth Anderson, an American University law professor who told me he is a “centrist conservative” on national security issues, said he supports the use of drone technology for counterterrorism but cannot abide how the administration is handling the program publicly.

“One area in which I have been relentless in criticism of the Obama administration has been their refusal to say anything about it, and at the same time essentially conducting the foreign policy of the U.S. by leaked journalism,” he said. “I just don’t think that is acceptable.”

And, from Opinio Juris, by Ken Anderson (on the road again), Secret DOJ Memo on Awlaki Targeting, and NYT Public Editor on Policy-by-Leaks:

One thought, however. As Jack Goldsmith and Ben Wittes have argued at Lawfare, and I have argued here, although it is certainly helpful to have a summary in the press about the issues discussed in the secret memo and their resolution, the fact that it is merely leaked (quite apart from not making available the actual text) is a grave part of the problem here. If it can be shown to press people and written about at length, then it should be made available publicly, as official policy and part of the process of defending the policy. Leaks de-legitimize policy over the long run, and reforms to the accountability and oversight of “covert” actions that are not truly covert need to provide some mechanism for officially releasing information on their legal justifications. It’s good that this information is out there; it is bad that it was put out there through leaks.

And, a tongue in cheek comment (same page as Ken's post) directed at Glenn Greenwald:

Has Glenn Greenwald called Marty Lederman a war criminal yet? For complicity in providing legal cover to civilian drone operators engaged in belligerency. Poor Marty, the John Yoo of the left.

My BLUF: The Obama Administration in this matter (like "Fast and Furious" and Solyndra) will probably succeed in making itself look like a multi-handed (more than two) beast whose hands are not co-ordinated, where consistency is not a hallmark, and where competency is problematic.

The following to me is WTF Squared, US contacts NC family of al-Qaida propagandist (8 Oct 2011):

CHARLOTTE, N.C. -- The U.S. State Department has offered the government's condolences to a North Carolina family whose son became an al-Qaida propagandist and was killed in a drone attack in Yemen, The Charlotte Observer reported Saturday.

The call came Thursday, nearly a week after 25-year-old Samir Khan was killed along with cleric Anwar al-Awlaki, a leader of al-Qaida in the Arabian Peninsula, the newspaper reported. Both men were American citizens.

Khan wrote a radical blog while living in Charlotte, then left to join al-Qaida and produce its English-language online magazine. U.S. officials said al-Awlaki was the target of the drone attack and Khan was collateral damage.

A State Department official called Khan's father, Zafar, a day after the family released a statement condemning Khan's extra-judicial "assassination," family spokesman Jibril Hough said. The family's statement said they were "appalled by the indifference shown to us by our government." They said they wanted the government to explain why Khan was not afforded due process and to discuss collecting his remains.

State Department spokesman Harry Edwards confirmed the call to Khan's family but declined to offer details citing "privacy issues." ....

Perhaps, there is prior DoS precedent ??

I think I'll take a nap.

Regards

Mike