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Thread: The Rules - Engaging HVTs & OBL

  1. #141
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    Default Addendum

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

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

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

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

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

    Regards

    Mike

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

    Attached Files Attached Files

  2. #142
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    Default

    Quote Originally Posted by jmm99 View Post
    PS Carl: you know that I'm just poking fun at myself - sometimes you are just so serious:
    Boy ain't that the truth. Please give me a swift but soft kick when I need it.

    A bloodhound! Tres cool.
    "We fight, get beat, rise, and fight again." Gen. Nathanael Greene

  3. #143
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    Default Choices of Law - Made and Explained, or Not

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Regards

    Mike
    Last edited by jmm99; 02-06-2013 at 09:24 PM.

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    Default How to Make A Kill List - Pt 1

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

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

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

    CATEGORIES OF TARGETS

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

    The process of developing names for the list is initially delimited by the categories of individuals who may be targeted. Those limits are established by the law of armed conflict, which prohibits the targeting of civilians except those who are members of an organized armed group or those who are directly participating in hostilities. Because direct participation in hostilities is a fleeting, time bound categorization, the only criteria by which an individual would likely be added to a kill-list would be if they fall into the category “members of an organized armed group.” While seemingly simple, the term “members of an organized armed group” has been the subject of extensive debate. ...
    These following three paragraphs are absolutely essential if one is to understand the US position, which is not the same as that held by the ICRC and the EU nations:

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

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

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

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

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

    Regards

    Mike

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    Default How to Make A Kill List - Pt 2

    We return to the next installment, Kill-Lists and Network Analysis (by Gregory McNeal, February 25, 2013):

    In my previous post I discussed how law creates three broad categories of potential targets (AUMF targets, Covert Action targets, and Ally targets). Those broad categories mean that many individuals may be targetable based on their status as members of an organized armed group. Working from these broad legal categories, the U.S. next relies on multiple levels of bureaucratic analysis to sort out the persons worth adding to a kill-list from the universe of potential targets.

    The goal is not merely killing people, but to kill those persons whose elimination will have the greatest impact on the enemy organization. I briefly described a systems based approach to targeting that looks at potential targets, their value to enemy organizations, their ability to be replaced, and their contributions to the enemy’s warfighting effort. In this post I dive a bit deeper into the targeting bureaucracy to discuss network based targeting analysis.
    So, we move into finding the Great White Whale, often easier said than done in our real-life ocean:

    NETWORK BASED ANALYSIS AND PATTERN OF LIFE SURVEILLANCE
    ...
    Networked based analysis looks at terrorist groups as nodes connected by links, and assesses how components of that terrorist network operate together and independently of one another. Those nodes and links, once identified will be targeted with the goal of disrupting and degrading their functionality.

    To effectively pursue a network based approach, bureaucrats rely in part on what is known as “pattern of life analysis” which involves connecting the relationships between places and people by tracking their patterns of life. This analysis draws on the inter-relationships among groups “to determine the degree and points of their interdependence.” It assesses how activities are linked and looks to “determine the most effective way to influence or affect the enemy system.”

    While the enemy moves from point to point, reconnaissance or surveillance tracks and notes every location and person visited. Connections between the target, the sites they visit, and the persons they interact with are documented, built into a network diagram and further analyzed. Through this process links and nodes in the enemy’s network emerge. The analysis charts the “social, economic and political networks that underpin and support clandestine networks” identifying key-decision makers and those who support or influence them indirectly.

    This may mean that analysts will track logistics and money trails, they may identify key facilitators and non-leadership persons of interests and they will exploit human and signals intelligence. They will feed this information into computer systems that help integrate the knowledge and which generate and cross-references thousands of data points to construct a comprehensive picture of the enemy network. “This analysis has the effect of taking a shadowy foe and revealing his physical infrastructure…as a result, the network becomes more visible and vulnerable, thus negating the enemy’s asymmetric advantage of denying a target.”
    When does one take the out the Goose Who Is Laying Golden Eggs; or, for that matter, the Local Hen Who is Supplying Breakfast:

    NETWORK BASED ANALYSIS AND THE KILLING OF “FOOT SOLDIERS”
    ...
    Viewing targeting in this way demonstrates how seemingly low level individuals such as couriers and other “middle-men” in decentralized networks such as al Qaeda are oftentimes critical to the successful functioning of the enemy organization. ... This means that social ties that appear inactive or weak to a casual observer such as an NGO, human rights worker, journalist, or even a target’s family members may in fact be strong ties within the network. Furthermore, because terrorist networks oftentimes rely on social connections between charismatic leaders to function, disrupting those lines of communication can significantly impact those networks.

    For example, Osama Bin Laden’s courier Abu Ahmed al-Kuwaiti was Bin Laden’s sole means of communicating with the rest of al Qaeda. ... Once identified, tracking al-Kuwaiti allowed analysts to determine the links and nodes in Bin Laden’s network. Moreover, if the government had chosen to kill al-Kuwaiti, a mere courier, it would have prevented Bin Laden from leading his organization (desynchronizing the network) until Bin Laden could find a trustworthy replacement. Finding such a replacement would be a difficult task considering that al Kuwaiti lived with Bin Laden, and was his trusted courier for years. Of course, sometimes intelligence gained from continuing to monitor a target is more significant than killing or capturing the target (as was initially the case with al Kuwaiti). This is a point that is [should be] recognized by every expert in targeting.
    ...
    Critics oftentimes accuse the government of not considering the potential intelligence loss associated with killing rather than capturing persons, but that intelligence loss is one that is well known by targeteers. The only issue is that someone deep within the killing process has decided that an operation, when it occurs, is worth the intelligence loss (given the available options).
    That issue again boils down to a judgment call (hopefully based on experience and wisdom; though no one's judgment calls can ever be 100%.

    At this point, consideration must also be given to both the immediate and long-range fallout effects of the particular strike, including but not limited to the perceptions among external observers. As to the last factor, how much methodology and sources should be disclosed:

    Perhaps one of the biggest challenges is that to an external observer, it is not clear what criteria will render an individual or a group an associated force, let alone what would constitute being labeled a node or a link in some networked base analysis. This is a point that is not lost on even the highest level officials in the U.S. government, as Daniel Klaidman has noted:

    [President Obama] understood that in the shadow wars, far from conventional battlefields, the United States was operating further out on the margins of the law. Ten years after 9/11, the military was taking the fight to terrorist groups that didn’t exist when Congress granted George Bush authority to go to war against al-Qaeda and the Taliban. Complicated questions about which groups and individuals were covered…were left to the lawyers. Their finely grained distinctions and hair-splitting legal arguments could mean the difference between who would be killed and who would be spared.
    Accountability for these “finely grained” legal distinctions is bound up in bureaucratic analysis that is not readily susceptible to external review. It relies on thousands of data points, spread across geographic regions and social relationships making it inherently complex and opaque. Accordingly, the propriety of adding an individual to a kill-list will be bound up in the analyst’s assessment of these targeting factors, and the reliability of the intelligence information underlying the assessment. How well that information is documented, how closely that information is scrutinized, and by whom will be a key factor in assessing whether targeted killings are accountable.
    To Be Continued ...

    Regards

    Mike

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    Default How to Make A Kill List - Pt 3

    Kill-List Baseball Cards and the Targeting Paper Trail (by Gregory McNeal, February 26, 2013).

    This serial starts with a mock-up/depiction of what an actual kill-list baseball card looks like. It is not a "real" baseball card and is not based on any classified information. It is a large jpg and is found here.

    McNeal first considers the data and intelligence that underlies the "baseball card":

    TARGET FOLDERS AND THE DISPOSITION MATRIX
    ...
    In current practice, the analytical steps I have described are documented in target folders, those folders are part of the process for creating kill-lists and the information in them is available right up through the execution of a strike. The folders contain target information, such as data about how the target was validated, who approved the target and at what step in the process, along with any identified potential collateral damage concerns associated with the target. Contrary to the claims of critics who worry about stale or out of date intelligence, target folders are continuously updated to reflect the most recent information regarding a target’s status and the compiled data is independently reviewed by personnel not responsible for its collection. The independent review is designed to ensure mistakes do not proliferate throughout the targeting process. Across government, the targeting folders have now been reduced to a database, and the information is now maintained in Electronic Targeting Folders (ETF)’s within that database. ...
    ...
    The ETF’s contain a record of the approvals, changes in intelligence, collateral concerns, anticipated benefits of attacking the target, and other information as it becomes available. That information includes human intelligence reports referencing the target, signals intelligence referencing the target, imagery and floor plans of likely locations of the target, a diagram showing the social and communications links of the target as derived from human and signals intelligence, and previous operations against the target. Also documented are intelligence gaps that will form the basis of additional intelligence requirements. Analysts who identify needs for more information can request additional pieces of information that they believe are needed to complete target development, and those requests will also be documented. ...
    The “disposition matrix” has been reported at Lawfare here; as well as being discussed in a number of posts in this thread.

    The process then goes to another judgment call step, which checks on the preliminary decisions to target a specific individual (or perhaps, a defined type of individual in a "signature strike", which is not McNeal's focus in this series):

    VETTING AND VALIDATING TARGETS

    The United States government has developed a formal vetting process which allows members of agencies from across the government to comment on the validity of the target intelligence and any concerns related to targeting an individual. At a minimum, the vetting considers the following factors: target identification, significance, collateral damage estimates, location issues, impact on the enemy, environmental concerns, intelligence gain/loss concerns, and issues of legality. ...
    ...
    A validation step follows the vetting step, it is intended to ensure that all proposed targets meet the objectives and criteria outlined in strategic guidance. The term "strategic" is a reference to national level objectives - the assessment is not just whether the strike will succeed tactically (i.e. will it eliminate the targeted individual) but also asks whether the strike will advance broader national policy goals. Accordingly, at this stage there is also a reassessment of whether the killing will comport with domestic legal authorities such as the AUMF or a particular covert action finding. At this stage, participants will also resolve whether the agency that will be tasked with the strike has the authority to do so. Individuals participating at this stage focus their analysis on a mix of military, political, diplomatic, informational, and economic consequences that flow from killing an individual. Other questions addressed at this stage are whether killing an individual will comply with the law of armed conflict, and rules of engagement (including theater specific rules of engagement). ...
    Note that most of these questions, their answers and the factors considered, have already been asked, answered and researched in prior stages. Thus, there is a considerable amount of intentional redundancy throughout the process up to and including the final decision-making step:

    VOTING ON TARGETS
    ...
    At this stage, information from the ETF’s is reduced to more manageable summaries of information - the baseball cards. Those baseball cards differ by agency, but they generally look like the image depicted above. They are Powerpoint slides that display a color picture of the target and physical characteristics (such as height and weight.) The slide lists information such as the individual’s rank in the organization, professional expertise, family ties and links to individual attacks. Also included is specific intelligence to support the individual’s nomination with an explanation of the source of the intelligence. Other data may include a map of the area where the target has been operating, a personal history of the target, patterns of life for the target, cell phone number of the target and even what vehicle the target is known to travel in. If the person reviewing a baseball card wants more information, they can dig into the ETF to see what intelligence supports the information on the baseball card. ...
    To Be Continued ...

    Regards

    Mike

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    Default How to Make A Kill List - Pt 4

    The Politics of Accountability for Targeted Killings (by Gregory McNeal, March 14, 2013).

    The first part of McNeal's Lawfare post, before getting into the "politics of accountability", sums up the end stage of the targeting approval process:

    APPROVAL PROCESS SUMMARY

    To begin, let’s sketch a general picture of the kill-list approval process. Based on news reports, it appears that...

    ... the first step in the process consists of military and intelligence officials from various agencies who compile data and make recommendations based on internal vetting and validation standards.

    Second, those recommendations go through the NCTC, which further vets and validates rosters of names and other variables that are further tailored to meet White House standards for lethal targeting.

    Third, the president’s designee (previously Brennan) convenes a NSC deputies meeting to get input from senior officials, including top lawyers from the appropriate agencies and departments. At this step is where the State Department’s Legal Adviser and the Department of Defense General Counsel along with other top lawyers would have an opportunity to weigh in with their legal opinions on behalf of their respective departments. Objections to a strike from top lawyers might prevent the decision from climbing further up the ladder absent more deliberation. In practice, an objection from one of these key attorneys almost certainly causes the president’s designee in the NSC process to hesitate before seeking final approval from the president.

    Finally, if the NSC gives approval, the president’s designee shapes the product of the NSC’s deliberations and seeks final approval from the president. At this stage, targets are evaluated again to ensure that target information is complete and accurate, targets relate to objectives, the selection rationale is clear and detailed, and collateral damage concerns are highlighted.

    By this point in the bureaucratic process, just as in prior conflicts (take Kosovo for example), there will be few targeting proposals that will reach the President that will prompt absolute prohibitions under the law of armed conflict. Rather most decisions at this point will be judgment calls regarding the application of law to facts, questions about the intelligence supporting a target, or questions about analytic judgments regarding facts and expected outcomes.
    The remainder deals with congressional oversight, which is something of a yawn to me.

    McNeal's complete article (127 pages) is available at SSRN, Kill-Lists and Accountability:

    Abstract:

    This article is a comprehensive examination of the U.S. practice of targeted killings. It is based in part on field research, interviews, and previously unexamined government documents. The article fills a gap in the literature, which to date lacks sustained scholarly analysis of the accountability mechanisms associated with the targeted killing process. The article makes two major contributions: 1) it provides the first qualitative empirical accounting of the targeted killing process, beginning with the creation of kill-lists extending through the execution of targeted strikes; 2) it provides a robust analytical framework for assessing the accountability mechanisms associated with those processes
    .
    The article begins by reporting the results of a case study that began with a review of hundreds of pages of military policy memoranda, disclosures of government policies through Freedom of Information Act (FOIA) requests by NGOs, filings in court documents, public statements by military and intelligence officials, and descriptive accounts reported by the press and depicted in non-fiction books. These findings were supplemented by observing and reviewing aspects of the official training for individuals involved in targeted killings and by conducting confidential interviews with members of the military, special operations, and intelligence community who are involved in the targeted killing process. These research techniques resulted in a richly detailed depiction of the targeted killing process, the first of its kind to appear in any single publication.

    After explaining how targeted killings are conducted, the article shifts from the descriptive to the normative, setting out an analytical framework drawn from the governance literature that assess accountability along two dimensions, creating four accountability mechanisms. After setting forth the analytical framework, it is applied to the targeted killing program. The article concludes with accountability reforms that could be implemented based on the specified framework.
    The Table of Contents hits its high points:

    I. THE LEGAL BASIS FOR TARGETED KILLINGS (pp.10-21)
    A. Domestic Legal Foundation
    B. International Legal Foundation
    1. Jus ad bellum justification
    2. Jus in bello characterization
    Categories of Targets

    II. IT TAKES A BUREAUCRACY TO MAKE AKILL LIST (pp.21-51)
    A. How Kill Lists Are Made
    1. Developing Names for the List
    2. Who’s Worth Killing?
    3. The Accountability Paper Trail
    4. Vetting and Validating Names for the Kill-Lists
    5. Voting On and Nominating Names to the List
    B. Implications for the Accountability Debate

    III. EXECUTING A TARGETED KILLING (pp.51-83)
    A. The Law of Armed Conflict in the Context of Targeted Killing
    1. Distinction and Positive Identification
    2. Identifying potential harm to civilians
    3. Assessing Feasible Precautions
    4. Proportionality Analysis and Approval Authority
    B. Accountability Problems and Opportunities
    1. Military Performance in CENTCOM Theater of Operations
    2. CIA performance in Pakistan
    3. Explaining the differences

    IV. ACCOUNTABILITY IN THE TARGETED KILLING PROCESS (pp.84-115)
    A. MECHANISMS OF ACCOUNTABILITY IN TARGETED KILLINGS
    B. LEGAL ACCOUNTABILITY AND TARGETED KILLINGS
    1. Judicial Review of targeting decisions: Al-Aulaqi and El-Shifa
    2. APA foreign affairs exception
    3. International Legal Investigations
    4. Criminal Prosecution of Military and CIA Personnel
    C. POLITICAL ACCOUNTABILITY AND TARGETED KILLINGS
    1. Congressional Oversight
    2. Presidential Politics
    3. International Political Constraints
    D. BUREAUCRATIC ACCOUNTABILITY AND TARGETED KILLINGS
    E. PROFESSIONAL ACCOUNTABILITY
    F. ACCOUNTABILITY LESSONS

    V. ACCOUNTABILITY REFORMS (pp.116-123)
    A. Defend the Process.
    B. Use Performance Reporting to Encourage Good Behavior
    C. Publish Targeting Criteria
    D. Publish costs (in dollars)
    E. Establish Independent Review
    F. Reject The Folly of Ex Post Judicial Oversight
    All in all, a very worthwhile read applicable not only to drone strikes, but also to more conventional air strikes and infantry direct actions.

    Regards

    Mike

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    Default How to Make A Kill List - Pt 5

    Presidential Politics, International Affairs and (a bit on) Pakistani Sovereignty (by Gregory McNeal, March 15, 2013), continues with a look at presidential and international politics as "potential accountability mechanisms".

    The bottom lines, to me, are (1) that a majority of Americans support drone strikes and other forms of direct action against AQ and associated groups, regarding all of that as forms of legitimate warfare; and (2) that an overwhelming majority of the EU and UN elites (and their populations) are in total disagreement with the USG and the American people.

    I don't believe that gap can be bridged; and further, that there is no point in the US trying to placate the EU and UN elites.

    For example, at the same time as McNeal was posting at Lawfare, Ben Emmerson and the Bureau of Investigative Journalism were engaging drones as they have in past:

    From AP, UN says US drones violate Pakistan's sovereignty (by SEBASTIAN ABBOT, March 15, 2013):

    ISLAMABAD (AP) — The head of a U.N. team investigating casualties from U.S. drone strikes in Pakistan declared after a secret research trip to the country that the attacks violate Pakistan's sovereignty.

    Ben Emmerson, the U.N. special rapporteur on human rights and counter-terrorism, said the Pakistani government made clear to him that it does not consent to the strikes — a position that has been disputed by U.S. officials.
    ...
    According to a U.N. statement that Emmerson emailed to The Associated Press on Friday, the Pakistani government told him it has confirmed at least 400 civilian deaths by U.S. drones on its territory. The statement was initially released on Thursday, following the investigator's three-day visit to Pakistan, which ended Wednesday. The visit was kept secret until Emmerson left.
    And from BIJ, Pakistan government says ‘at least 400 civilians’ killed in drone strikes ( by Alice K Ross, March 15, 2013):

    The Pakistani government estimates at least 400 civilians have been killed in drone strikes – a figure close to the Bureau’s own findings.

    In evidence to Ben Emmerson QC, UN special rapporteur on counter-terrorism, the Pakistan Ministry of Foreign Affairs has said that CIA drones have killed at least 2,200 people in the country including at least 400 civilians. This is close to the Bureau’s low range estimate of 411.

    The figures were disclosed to Emmerson as he made a three-day visit to the country. The Ministry of Foreign Affairs, which compiled the figures, said a further 200 of the total dead were likely to be civilians too. ...
    And so the current phase of lawfare goes.

    Regards

    Mike
    Last edited by jmm99; 03-16-2013 at 02:36 AM.

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    Default

    Mike:

    Putting legality of the strikes aside, I wonder if in the long run they are worth it. That opinion graph you posted made me think of that. Some of the countries in there don't matter, Greece and Spain for example. But some matter quite a lot, Britain, Mexico and Turkey. One big reason South Vietnam was conquered by the Reds was because the Communists won the battle for world public opinion. That had a real life and death consequence for millions of. I don't know how this will play out over the years but public opinion in other countries, especially the important ones, matters.

    Almost half of those in India had no opinion. That might not be good since most of the drone attacks are against people who would happily slaughter Indians.
    Last edited by carl; 03-17-2013 at 09:01 PM.
    "We fight, get beat, rise, and fight again." Gen. Nathanael Greene

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    Default Some Non-Legal Issues - pt 1

    Hi Carl,

    I'd love to put aside the "legality issues" of drone strikes; and look at the much broader picture. That includes not only the simplistic question ("Is it legal ?"), but questions of purpose, scope, judgment and wisdom - the tough questions. I think McNeal addresses some of them in his 127-page article; though admittedly, I had a tendency to drift (like Lawrence on his camel) as I got into the middle third.

    Yesterday, I ran into an interesting non-legal article that summed up 5 key issues regarding the "drone war" - in two pdf pages. From "The Week" (its "The Compass" blog), 5 truths about the drone war (March 13, 2013; by Marc Ambinder - "Marc Ambinder (born c. 1978) is an American editor and journalist, editor-at-large of The Week, a contributing editor at GQ and at The Atlantic." see, very brief Wiki):

    Maybe Jacques Derrida [JMM: a good non-legal link to read in itself], the French dauphin of deconstruction, was right: In the beginning and end was the word. Logos. In war, words matter. Take our drone war, which is not, in point of fact, a war, and involves "drones" only incidentally. And yet the concept of hovering, amoral surveillance machines with missiles attached to them is pretty much the way everyone describes a much different reality.
    I'd suggest (without any expertise as a pollster as opposed to a poll user; and thereby breaking at least two of Alinsky's Rules, despite having a copy 15 feet to the right of me and 15 feet to the left of me, as I write ) that the polling results, both favorable and unfavorable to the USG and USP (People) positions, are heavily motivated by the "concept of hovering, amoral surveillance machines with missiles attached to them".

    Leaving behind my expertise or lack of same, what are Mr Ambinder's Five Points (snipped) ? -

    1. The drone war is not fought primarily with drones.
    ...
    2. The CIA does not "fly" drones.
    ...
    3. The targeted killing policy is the best of all worst options for two reasons. One: The United States does not have a coherent and legitimate capture and detention policy. (Thank the CIA torture program, Abu Ghraib, Congress, and the Obama administration's weak efforts to create one.) Two: Human intelligence collection has atrophied to the point where there are not enough people on the ground to facilitate the capture and detention of wanted targets.
    ...
    4. 4. Al Qaeda core has not successfully pulled off a plot against the West since 2005, according to Peter Bergen.
    ...
    5. RPVs are NOT the future of warfare. They are a future part OF warfare.
    ...
    I'll take these in a slightly different order.

    5. RPVs are NOT the future of warfare. They are a future part OF warfare.

    Ambinder's argument for this is:

    Wars are still mostly fought by people in the theater with guns and ammo and communication trucks. RPV technology is advancing, but it is still hard to get one of those buggers to hover in place for an hour and THEN shoot something, and then hover for hours. It's doable, but hard. (Most battle damage assessment are done with other UAVs). That's why the RPVs "orbit." Their courses are programmed; they can deviate off-track and be rapidly reprogrammed, but physics still prevents complete freedom of movement especially if the UAVs have large ordinance on board. If an intelligence source has the exact coordinate of a known al Qaeda operative, the weapon of choice used to kill him will be the platform that is closest, available, and would provide the least collateral damage and most accuracy, depending upon the mission and its own operational security needs.
    I have no complaint here. Wilf (Owen of Infinity Journal) might require more "rigour"; but "War" is always "War" (the conduct of war, warfare - lit. a "ticket to war" - has varied over the ages, though not as much as people might assert). IMO: the "weapon of choice" could range from an infantryman to a nuclear warhead - drone strikes and airstrikes are mesne means. One might expect adversity to drone strikes to diminish as they enter more and more national armories (as the crossbow, fusils, cannon, etc., incl. "nukes").

    1. The drone war is not fought primarily with drones.

    Ambinder's argument for this is:

    The United States targets members of al Qaeda, al Qaeda affiliates and now, apparently, affiliates of those affiliates, using a comprehensive array of technical intelligence resources, backed up by fighter jets with conventional bombs, submarines that launch missiles, other platforms that launch missiles, and, sometimes, missiles attached to remotely piloted vehicles. The policy is best described as targeted surveillance and killing of the aforementioned groups. In certain areas, it is easier to fly airplanes; in certain places in Pakistan, RPVs launched by Afghanistan will do the job. The munition and vehicle used depends on the target, his location, his importance, and the resources available to the military and CIA at the time.
    Again, I've no complaint here; other than a quibble that boots on the ground should be in play (given the right situations) - the PBI (poor bloody infantryman) and the "Son Tay Raiders". And, I'd have to add those "always on the table" nuclear devices.

    2. The CIA does not "fly" drones.

    Ambinder's argument for this is:

    It "owns" drones, but the Air Force flies them. The Air Force coordinates (and deconflicts) their use through the CIA's Office of Military Affairs, which is run by an Air Force general. The Air Force performs maintenance on them. The Air Force presses the button that releases the missile. There are no CIA civilians piloting remote controlled air vehicles. The Agency has about 40 unmanned aerial vehicles in its worldwide arsenal, about 30 of which are deployed in the Middle East and Africa. Most of these thingies are equipped with sophisticated surveillance gear. A few of them are modified to launch missiles. The Air Force owns many more "lethal" RPVs, but it uses them in the contiguous battlefield of Afghanistan.
    If this be true (I don't know. but it sounds plausible), we have a combination of Title 10 & Title 50 (U.S. Code) that fits within the "Laws of War" (aka "LOAC" & "IHL"), as accepted and applied by the U.S. (though quite obviously not as "accepted and applied" by the citizens of other nations - from the Pew Poll).

    On this point (which is a legal one), Wells Bennett notes:

    That’s an interesting “truth” - assuming it is, indeed, true - in light of the DOJ White Paper.

    Among other things, the White Paper concluded that, under its given facts, a hypothetical violation of 18 U.S.C. § 1119 (or the “murder of a U.S. citizen
    abroad” statute) likely would be justified on “public authority” grounds. This part of the White Paper proceeded in two steps:

    first, by noting 1119′s incorporation of other federal laws which criminalize only “unlawful” killings;

    and second, by pointing out that the targeted killing, abroad and away from any zone of active hostilities, of a senior Al-Qaeda leader who is a U.S. citizen and poses an imminent threat - would be lawful.

    That is, the killing would be conducted in accordance with the laws of war, which govern the United States’ non-international armed conflict with Al-Qaeda. And that, apparently, would furnish “public authority” sufficient to justify a violation of the statute under such circumstances.
    That conclusion, of course, follows from two a priori conclusions: (1) that the "Laws of War" apply; and (2) that "Kill" is an equally valid option to "Capture". Generally speaking, we have a US vice EU-UN dichotomy on all three of those legal issues.

    - to be continued -
    Last edited by jmm99; 03-18-2013 at 04:58 AM.

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    Default Some Non-Legal Issues - pt 2

    3. The targeted killing policy is the best of all worst options for two reasons. One: The United States does not have a coherent and legitimate capture and detention policy. (Thank the CIA torture program, Abu Ghraib, Congress, and the Obama administration's weak efforts to create one.) Two: Human intelligence collection has atrophied to the point where there are not enough people on the ground to facilitate the capture and detention of wanted targets.

    Ambinder's argument for this is:

    This means the US over relies on technical intelligence, and on signals intelligence in particular. In Pakistan, it relies on tips from the Army and the ISI. Often, the member of al Qaeda core who's been identified by the ISI is not, in fact, a member of al Qaeda core, but is instead a Pakistani Taliban or militant who is not sufficiently pro-Pakistan.

    The U.S. has gotten better at vetting these tips, but the policy generally is that it's best not to let the sufficient be the enemy of the reliable. Yemen's government does the same thing. The U.S. MUST rely on allied intelligence services because it cannot rely on its own. So: Bad guys exist. Can't capture 'em. Can't figure out who they are without help. What's the answer? You kill them.

    If you oppose the policy of targeted killing of al Qaeda operatives, then you ought to support a viable detention system as well as a significant increase in our indigenous human intelligence capacity. Special operations forces and the CIA really would like to capture these guys and interrogate them, because these guys will often give up their comrades. But they can't. So they don't. And the president won't take any chances in letting someone potentially dangerous slip through his grasp.
    A factor (not the only one), in the re-election of President Bush in 2004 and in the re-election of President Obama in 2012, was that both incumbants could assert that CONUS had been free from a 9/11 attack after that event.

    NB: I don't agree that we are totally hopeless in putting boots on the ground (UBL as a case in point). BUT, "Son Tay" Ops are tricky - as that op proved - see McRaven, Spec Ops: Case Studies in Special Operations Warfare; Theory and Practice (1997; well before he became famous).

    That brings us to Ambinder's last point.

    4. Al Qaeda core has not successfully pulled off a plot against the West since 2005, according to Peter Bergen.

    Ambinder's argument for this is:

    Most of the militants targeted by the U.S. in Pakistan today have absolutely no interest in attacking the U.S. homeland. They DO have an interest, a series of very parochial interests, in Pakistan and Afghanistan. At some point, it makes no sense to chase down every person who ever uttered a threat against U.S. troops in Afghanistan. The threat from al Qaeda affiliates (and still the intelligence community bickers over the definition of what an affiliate is) is less than the threat from al Qaeda core.
    The other side of that coin is that "if we fight them over there, we won't have to fight them here."

    I've never really bought the "fight them there" argument in full - or "1% possibility" arguments, for that matter. So, I do tend to Ambinder's views on Astan and Pstan. But then, I also have a Worldview that would require a much more restricted geographic scope for US force projection, except in very exigent situations.

    Regards

    Mike
    Last edited by jmm99; 03-18-2013 at 05:03 AM.

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    Default President Obama - "The Future of our Fight"

    Text of the President’s Speech (23 May 2013).

    Video of the President's Speech (about 1 hour).

    This is a long speech, including a mix of experiences, politics, policies, philosophy (morals and ethics), law and strategy. It will raise more questions than it answers. The WH view of the speech follows.

    White House Fact Sheet on Use of Force Away from Hot Battlefields (23 May 2013) (snip; please note that the following rules do not necessarily apply to "hot battlefields" - but could, as a minority argues):

    Preference for Capture

    The policy of the United States is not to use lethal force when it is feasible to capture a terrorist suspect, because capturing a terrorist offers the best opportunity to gather meaningful intelligence and to mitigate and disrupt terrorist plots. Capture operations are conducted only against suspects who may lawfully be captured or otherwise taken into custody by the United States and only when the operation can be conducted in accordance with all applicable law and consistent with our obligations to other sovereign states.

    Standards for the Use of Lethal Force

    Any decision to use force abroad – even when our adversaries are terrorists dedicated to killing American citizens – is a significant one. Lethal force will not be proposed or pursued as punishment or as a substitute for prosecuting a terrorist suspect in a civilian court or a military commission. Lethal force will be used only to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively. In particular, lethal force will be used outside areas of active hostilities only when the following preconditions are met:

    First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.

    Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

    Third, the following criteria must be met before lethal action may be taken:

    1) Near certainty that the terrorist target is present;

    2) Near certainty that non-combatants[1] will not be injured or killed;

    3) An assessment that capture is not feasible at the time of the operation;

    4) An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

    5) An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

    Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally – and on the way in which the United States can use force. The United States respects national sovereignty and international law.

    [1] Non-combatants are individuals who may not be made the object of attack under applicable international law. The term “non-combatant” does not include an individual who is part of a belligerent party to an armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of national self-defense. Males of military age may be non-combatants; it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants.
    NB: (1) The preference for capture over killing. In the "least harmful means" test (propounded by some in the ICRC and elsewhere), escalation of force rises from capture, slight wounding, severe wounding, and then killing. Thus, the full "least harmful means" standard is not adopted in the statement - nor is it excluded; and

    (2) The "near certainty" standard (re: lethal force), combined with the "continuing, imminent threat" requirement, is very similar to the "reasonable certainty" language used in the CENTCOM ROE (though not in the JCS Standing Rules of Engagement).

    Immediate comments by some Lawfare participants:

    The Obama Speech: The Same Standards for Targeted Killings Apply to Non-Citizens as to Citizens (by Rick Pildes ).

    The President’s Speech: What About GTMO Detainees Who Cannot be Tried, but also Cannot be Released? (by Wells Bennett).

    The President’s Speech: A Quick and Dirty Reaction—Part 1 (Are We at War?) (by Benjamin Wittes).

    The President’s Speech: A Quick and Dirty Reaction–Part 2 (Guantanamo) (by Benjamin Wittes).

    The President’s Speech: A Quick and Dirty Reaction—Part 3 (Did the President Narrow the Targeting Criteria for Drone Strikes?) (by Benjamin Wittes).

    The President’s Speech: A Quick and Dirty Reaction–Part 4 (Hedging on the Drone Court) (by Benjamin Wittes).

    The President’s Speech: The Good, the Bad, and the Ugly (by John Bellinger - "The President’s speech was a dog’s breakfast: some good parts, some bad parts, and some ugly parts.")

    Enjoy

    Regards

    Mike
    Last edited by jmm99; 05-24-2013 at 05:09 PM.

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    Default More reviews of the Dog's Breakfast;

    all by persons well-known to regular readers.

    Ben Emmerson on President Obama’s Speech (by Ritika Singh) (quotes from statement made by Mr Emmerson):

    This extremely important speech breaks new ground in a number of key respects. It affirms for the first time this Administration’s commitment to seek an end to its armed conflict with Al Qaida as soon as possible; it reminds the world that not every terrorist threat or terrorist attack can be equated with a situation of continuing armed conflict; it sets out more clearly and more authoritatively than ever before the Administration’s legal justifications for targeted killing, and the constraints that it operates under; it clarifies, and proposes improvements to, the procedures for independent oversight; and it sets out the steps the President is now resolved to take in order to close Guantanamo Bay.

    The publication of the procedural guidelines for the use of force in counter-terrorism operations is a significant step towards increased transparency and accountability. It also disposes of a number of myths, including the suggestion that the US is entitled to regard all military-aged males as combatants, and therefore as legitimate targets.
    ...
    The President’s historic statement today is to be welcomed as a highly significant step towards greater transparency and accountability; and as a declaration that the US war with Al Qaida and its associated forces is coming to an end. The President’s principled commitment to ensuring the closure of Guantanamo is an utterly essential step. His acknowledgement that the time has come to tackle not only the manifestations of terrorism but also its social, economic and political causes around the world – to seek long term solutions – signals a shift in rhetoric and a move in policy emphasis towards promoting a strategy of sustainable and ethical counter-terrorism, consistent with Pillar I of the UN Global Counter-Terrorism Strategy.
    But, most interesting to me was this short statement of intent by Mr Emmerson: "I will be engaging with senior Administration officials in Washington over the coming days and weeks in an effort to put some flesh on the bones of the announcements made today."

    On the other hand, You Are an Operational Commander of AQAP Reading the White House Fact Sheet (by Kenneth Anderson):

    Along with President Obama’s speech yesterday on counterterrorism policy, the White House released a document titled "Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities". Among other important matters (such as declaring a preference for capture), the Fact Sheet provides “Standards for the Use of Lethal Force,” which enumerates criteria that “must be met before lethal action may be taken,” and requiring among other things:

    2. Near certainty that non-combatants will not be injured or killed.

    Imagine for a moment that you are an operational commander in al Qaeda or one of its associated forces – Al Qaeda in the Arabian Peninsula, for example. You are working on ways to attack the United States, its allies, or interests; perhaps you are working with AQAP’s key bomb-maker, the same who came up with the Detroit Christmas bomber’s underwear bomb and the xerox printer cartridge bomb. Imagine that he has managed to come up with a way to implant explosives in a person’s body, and you are working on a way to deploy this operationally. You know that you are a possible, indeed likely, target of a drone strike. But you have just read President Obama’s speech carefully, and you have also just read the White House Fact Sheet. What would your rational course of action be, given your aims? Readers are invited to state what their course of action would be if they were the AQAP commander in this scenario.
    ...
    The tradeoff made by the Fact Sheet radically decreases the uncertainties and contingencies faced by the other side, however. It gives a path to avoid precisely the outcome that our side seeks to deliver. And it does so by inviting further illegality under the laws of war, such as using children as human shields, and effectively rewards strategies of illegal shielding. Or so a critic of this kind of transparency might argue. Is the tradeoff in public transparency worth it? Readers are invited to comment.
    Drawing the same conclusion as Anderson (though for slightly different reasons) is Kevin Jon Heller, Two Problems with the “Near Certainty” Standard. Heller, who has been generally adverse to both Bush and Obama targeted killings (see, Obama Thinks We’re All Rubes), makes two arguments in the first piece:

    First, I don’t believe for a moment that Obama will actually enforce it, no matter how pure his intentions. If you disagree, consider the following hypothetical (and obviously counterfactual) scenario:

    The CIA learns through drone surveillance and a human informant that Osama bin Laden is having dinner with one of his wives inside his Abbottabad compound. It asks Obama to authorize a drone strike on bin Laden. Obama declines, because there is not “near-certainty that no civilian will be killed or injured in the attack.” On the contrary, there is absolute certainty that a civilian will be killed.
    If you believe that Obama would decline to act in this hypothetical situation, I have a lovely bridge to sell you. But that is precisely what the “near certainty” standard would require.

    Second, and perhaps more importantly, Obama should not enforce the standard, because it is fundamentally inconsistent with his obligation — with any President’s obligation — to protect the US. However skeptical of American power we may be, we have to acknowledge that there are, in fact, times when it is important for a President to use lethal force even though he or she knows innocent civilians will die in the process. The bin Laden hypothetical is one example; another is a situation in which a suicide bomber uses a small child as a human shield while approaching his target. Would we really want a President to refuse to kill the suicide bomber because he or she knows with absolute certainty that the child will die in the attack? The principle of proportionality, for all its subjectivity, exists for a reason: because no matter how attractive objective standards like “near certainty” may seem, anticipated civilian damage does, in fact, have to be balanced against the military advantage of an attack. The loss of innocent civilian life, though regrettable, is not always unjustified.
    and, in the second piece, more "pure Heller":

    What is most perverse about Obama’s purported requirement is that, from a legal standpoint, it is completely unnecessary. International humanitarian law does not demand perfection; it demands proportionality. Innocent civilians die in legitimate military attacks. They always have, and they always will — no matter how “precise” weapons like drones become. Every military commander in every country in the world accepts that basic fact of warfare. But not Obama, winner of the Nobel Peace Prize. He cannot bring himself to acknowledge that the US is — like every other country — willing to launch attacks that are likely to kill innocent civilians when it believes the targets are important enough. He would rather pretend, in public and seemingly without shame, that the US is more virtuous and has cleaner hands than everyone else, friend and foe alike. Never mind that if the US took his targeting standard seriously, its drone fleet would be gathering dust in a hangar somewhere.
    Finally, Reactions to the President’s Speech (by Jack Goldsmith), whose primary reaction is found in his CFR essay, Obama Passes the Buck: The President’s Empty Rhetoric on Counterterrorism. As Jack notes:

    The subtitle captures the basic thrust of the essay, which is a pretty cynical reaction to the President’s speech grounded mostly in my cynicism about the President’s pledges to work with Congress on counterterrorism policy.
    Different strokes from different folks.

    Regards

    Mike

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    Default War in Peacetime

    J. Lawton Collins used the term in the title of his book, War in peacetime: the history and lessons of Korea (1969). Andre Beaufre focused on the term in his books, Introduction to Strategy (New York: Praeger, 1965 [Introduction la stratgie, Paris, 1963]); and Deterrence and Strategy (London: Faber, 1965 [Dissuasion et stratgie Paris, Armand Colin, 1964]).

    Beaufre's history of its practical usage found that, prior to WWI, a clear line was drawn between "Peace" (the European "normal" between the Napoleanic Wars and WWI) and "War". Those situations were governed by distinct and separate rules in law, strategy, policy and politics. In law, the dichotomy was evidenced by L.F.L. Oppenheim's magisterial 2-volume treatise (1905 1st edition), International Law: A Treatise. Vol I: Peace; and International Law: A Treatise. Vol II: War and Neutrality. Both online at www.archive.org

    The changes caused by WWI-WWII (followed by the Cold War) put finis to the clear distinction between "Peace" and "War". Thus, in Beaufre's terms, lawyers, strategists, policy-makers and politicians had to learn to play one piece in two different keys at the same time:

    The game of strategy can, like music, be played in two keys. The major key is direct strategy, in which force is the essential factor. The minor key is indirect strategy, in which force recedes into the background and its place is taken by psychology and planning.
    Thus, we have been introduced to such concepts as the "Three Block War".

    That being said, there has been a reluctance to abandon the clear dichotomy between "Peace" and "War"; and the concept of "War in Peacetime" has been found unacceptable by many. That is not a right or left thing; it is not a military or civilian thing; but, it is shaped by many factors in each of us.

    Yesterday's NYT Editorial illustrated to me the anti-"War in Peacetime" viewpoint - as also did some of President Obama's remarks - The End of the Perpetual War (by THE EDITORIAL BOARD; Published: May 23, 2013):

    President Obama’s speech on Thursday was the most important statement on counterterrorism policy since the 2001 attacks, a momentous turning point in post-9/11 America. For the first time, a president stated clearly and unequivocally that the state of perpetual warfare that began nearly 12 years ago is unsustainable for a democracy and must come to an end in the not-too-distant future.

    “Our systematic effort to dismantle terrorist organizations must continue,” Mr. Obama said in the speech at the National Defense University. “But this war, like all wars, must end. That’s what history advises. It’s what our democracy demands.”

    As frustratingly late as it was — much of what Mr. Obama said should have been said years ago — there is no underestimating the importance of that statement. Mr. Obama and his predecessor, President George W. Bush, used the state of war that began with the authorization to invade Afghanistan and go after Al Qaeda and others who planned the Sept. 11 attacks to justify extraordinary acts like indefinite detention without charges and the targeted killing of terrorist suspects.

    While there are some, particularly the more hawkish Congressional Republicans, who say this war should essentially last forever, Mr. Obama told the world that the United States must return to a state in which counterterrorism is handled, as it always was before 2001, primarily by law enforcement and the intelligence agencies. That shift is essential to preserving the democratic system and rule of law for which the United States is fighting, and for repairing its badly damaged global image.

    Mr. Obama said the Authorization for Use of Military Force, which was passed after Sept. 11, 2001, must be replaced to avoid keeping “America on a perpetual wartime footing.” He added: “Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states.”

    He did not say what should replace that law, but he vowed: “I will not sign laws designed to expand this mandate further.” ...
    My reaction to this verbiage is that it evinces both naivety and arrogance. Naivity because the other side also has a vote in whether a "war in peacetime" shall end. Arrogance (perhaps, hubris is a better word) because it is simply another way of declaring Pax Americana - which goes hand in hand with Bellum Americana - both spell "global hegemony".

    While I appreciate the desire to go back to a simpler, more clearly-defined time, I do not believe that is possible.

    Regards

    Mike

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    Default Obama presses 'reset' button for war on terror

    A commentary by Nigel Inkster, of IISS and ex-SIS; it ends with:
    ...on balance the proposals set out by Obama would seem to be a credible option for rebalancing US strategic priorities to match present realities.
    Link:http://www.iiss.org/en/iiss%20voices...on-terror-f2c2
    davidbfpo

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    Default David,

    I'd say that Mr Inkster's analysis of the President's rhetoric is quite accurate. It parallels Ben Emmerson's analysis and conclusions (briefly mentioned above). Certainly, the President's rhetoric was closer to the UK-EU ideals than his actions over the last 4 years. Whether that rhetoric will lead to "flesh on the bones" (in Mr Emmerson's words) is quite another thing.

    I did have a problem with this piece of Nigel Inkster's rhetoric:

    This speech could mark the point at which the US government begins to shift away from a counter-terrorism approach that has become excessive and unsustainable, towards one that enables resources to be redirected towards more salient national-security issues.
    As I perceive what the US has done since 9/11, the events which were "excessive and unsustainable" were the nation-building projects in Iraq and Afghanistan. The $$$ borrowed and spent on those projects are sunk costs and not about to be recovered. If Mr Inkster could identify what "resources" have now become available for "redirection", we USAians would like him to tell us.

    Regards

    Mike

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    Default Manhunt/The Search For Osma Bin Laden HBO Documentary

    Watched this last night on CNN even though it is an HBO documentary, talks about a lot of the issues discussed here.......most of the "Bill" Laden tracking unit were women


    https://www.hbo.com/documentaries/ma...den/index.html

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    Default The Obama Admin's "Canonical" Speeches - part 1

    Ken Anderson and Ben Wittes, in their online book, Speaking the Law: The Obama Administration’s Addresses on National Security Law (2013), have selected and analyzed 13 speeches by the President and others in his administration:

    OVERVIEW

    Over the course of President Obama’s first term in office, the president and senior officials of his administration have given a series of major speeches on the legal framework for confronting terrorists overseas. The speeches collectively represent the fullest statement the administration has given of the law of drones, targeted killing, and the larger approach to the war against Al Qaeda and its allies. The Obama administration has faced criticism both for the content of the speeches and for not saying more in them–and releasing the legal memos that lie beneath them. In Speaking the Law, Kenneth Anderson and Benjamin Wittes dissect the Obama administration’s major speeches on national security law–analyzing what the administration has actually said, fleshing out the virtues and vices of the legal framework it has mapped out, and suggesting areas for legislative refinement and further administration development.
    Those "canonical" speeches involve policy and strategy as much (or more) than "down in the weeds" legal issues.

    The outline of the online book (to be published in stages) is:

    Speaking the Law (Introduction), by Kenneth Anderson and Benjamin Wittes [19 pp.]

    Speaking the Law (Chapter 1), by Kenneth Anderson and Benjamin Wittes [64 pp.]

    Speaking the Law (Chapter 2), by Kenneth Anderson and Benjamin Wittes [64 pp.]

    [JMM: Chapters 3, 4 & 5 to be published later]

    Appendices A, B & C: Addresses and Remarks by President Obama and Administration Officials on National Security Law [JMM: at over 160 pp., has extensive snips of the full speeches]
    For those who want the complete speeches, here they are:

    President Barack Obama, “Remarks by the President on National Security,” The National Archives, Washington, D.C., May 21, 2009

    President Barack Obama, “A Just and Lasting Peace,” the 2009 Nobel Peace Prize Lecture, Oslo, Norway, December 10, 2009

    Harold H. Koh, legal adviser to the Department of State, “The Obama Administration and International Law,” address to the American Society of International Law, Washington, D.C., March 25, 2010

    Harold H. Koh, legal adviser to the Department of State, “International Law in Cyberspace,” address to the USCYBERCOM Inter-Agency Legal Conference, Fort Meade, Maryland, September 18, 2012

    David Kris, assistant attorney general for national security, “Law Enforcement as a Counterterrorism Tool,” address at the Brookings Institution, Washington, D.C., June 11, 2010

    Jeh C. Johnson, general counsel, Department of Defense, “U.S. Terrorist Suspect Detention Policy,” speech to the Heritage Foundation, Washington, D.C., October 18, 2011

    Jeh C. Johnson, general counsel, Department of Defense, “National Security Law, Lawyers, and Lawyering in the Obama Administration,” address at Yale Law School, New Haven, Connecticut, February 22, 2012

    Jeh C. Johnson, general counsel, Department of Defense, “The Conflict against Al Qaeda and Its Affiliates: How Will It End?” Oxford Union, Oxford University, November 30, 2012

    Eric Holder, attorney general, Department of Justice, "Address at Northwestern University School of Law", Chicago, Illinois, March 5, 2012

    Stephen W. Preston, general counsel, Central Intelligence Agency, “CIA and the Rule of Law,” address at Harvard Law School, Cambridge, Massachusetts, April 10, 2012

    John O. Brennan, assistant to the president for homeland security and counterterrorism, “Strengthening Our Security by Adhering to Our Values and Laws,” address at Harvard Law School, Cambridge, Massachusetts, September 16, 2011

    John O. Brennan, assistant to the president for homeland security and counterterrorism, “The Ethics and Efficacy of the President’s Counterterrorism Strategy,” Woodrow Wilson International Center for Scholars, Washington, D.C., April 30, 2012

    John O. Brennan, assistant to the president for homeland security and counterterrorism, “U.S. Policy toward Yemen,” Council on Foreign Relations, New York City, August 8, 2012.
    - cont. in part 2

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    Default The Obama Admin's "Canonical" Speeches - part 2

    The scope of Chapters 1 & 2 is summarized in the Introduction:

    Our examination of the speeches begins, in chapter 1, with a description of the framework they lay out. In this chapter, we describe - but largely refrain from analyzing - what the Obama administration has said about the legal framework in which it is operating with respect to such questions as the nature of the confl ict, the use of drones and targeted killings, detention, trial by military commission and in federal courts, interrogation, and the end of the conflict. The purpose of this chapter is to synthesize the various speeches into a single doctrinal statement that describes in holistic terms the administration’s approach in legal policy to the conflict.

    Chapter 2 attempts to analyze the framework and examine the stresses upon it. We ask whether the framework is, in the main, the right one. Where has the administration gotten matters right and where wrong? Where is the framework under developed? In general, we argue, the administration has articulated a strong basis for institutional settlement of contested questions - one that gives future administrations a useful set of doctrinal positions on which to build as the conflict continues to morph. Important questions remain open, however, and the framework will require further refinement by both the administration and the legislature.
    Here are two major points (one from Chapter 1; another from Chapter 2), which I've also argued here.

    The argument [of those who oppose the use of the criminal justice system], as I understand it, is basically the following:

    (1) We are at war.

    (2) Our enemies in this war are not common criminals.

    (3) Therefore, we should fight them using military and intelligence methods, not law enforcement methods.

    This is a simple and rhetorically powerful argument and, precisely for that reason, it may be attractive.

    In my view, however, and with all due respect, it is not correct. And it will, if adopted, make us less safe. Of course, it’s not that law enforcement is always the right tool for combating terrorism. But it’s also not the case that it’s never the right tool. The reality, I think, is that it’s sometimes the right tool. And whether it’s the right tool in any given case depends on the specific facts of that case.

    Here’s my version of the argument:

    (1) We’re at war. The president has said this many times, as has the attorney general.

    (2) In war you must try to win—no other goal is acceptable.

    (3) To win the war, we need to use all available tools that are consistent with the law and our values, selecting in any case the tool that is best under the circumstances.
    Those tools include the "neutralization triad" (kill, capture, convert), where trials by civil courts, trials by military commissions and detentions without trials are all tools arising as part of the "capture" option.

    Detentions without trial end when the armed conflict ends, bringing us to a major point from Chapter 2 - where the Obama Administration's position is far from clear (even given the President's last speech).

    The End of the Confl ict and Extra-AUMF Threats

    Some of the most important areas of underdevelopment in the speeches relate to the fragility of the AUMF as a basis for overseas counterterrorism operations into a future that law does not well describe. The AUMF is, after all, by its terms tied to the September 11 attacks. While it has supported the use of force against any number of groups, it will not do so forever as the conflict continues to morph. At some point, and with respect to at least some groups, the AUMF simply looks too remote. The president, of course, retains the authority, in both international and domestic law, to use force to attack these groups as an exercise of self-defense to the extent they pose an imminent threat to the United States. But such operations would not be part of the existing armed conflict authorized by the AUMF.
    ...
    There are, after all, new threats that lie entirely beyond the AUMF—that is, national security threats that have no relationship at all to the matrix of threats linked to Al Qaeda, September 11, our current adversaries, or their causes. The day will thus come when the United States has to deal with some major terrorist threat that is not even plausibly within the AUMF’s
    scope. Perhaps it will be from some terrorist group in Latin America, maybe from Hezbollah. But there will certainly be threats from non-state groups outside of the AUMF conflict that some president will someday feel compelled to address with force. It has been easy, over the last dozen years of armed
    confl ict under the AUMF, to assume that all uses of force authorized by the president for reasons of national security are part of the same existing armed conflict - or that, to the extent they are not, they are part of a different armed confl ict as soon as they are undertaken, because they involve some new state-to-state conflict. Yet the modern evolution of warfare toward more micro-targeted projections of force - toward very small wars - suggests that presidents may well in the future seek to avoid the sustained violence that would legally establish an armed conflict.
    These are much more matters of policy and strategy, than matters of law as conventionally defined.

    Regards

    Mike
    Last edited by jmm99; 05-28-2013 at 09:17 PM.

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