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Thread: The Rules - Engaging HVTs & OBL

  1. #161
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    May 2008

    Default Slap,

    I missed the program, but the CNN transcript is here.

    At its end, these comments:

    UNIDENTIFIED MALE: It's a nice chapter to close. The chapter is closed, but it's not over. Sadly enough, I think we're going to be in this situation again.

    UNIDENTIFIED FEMALE: Bin Laden achieves, you know, spreading his ideology beyond what he probably expected it to. How do you kill an ideology? Killing one person doesn't end that.
    Something to consider.



  2. #162
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    Default The American Way of War, Peace or Neither ?

    The President's statement that the armed conflict with al Qaeda must and should end lest we find ourselves in a "perpetual state of war", joined with approving commentary such as the NYT's "End of the Perpetual War", has led to the question of what will replace the "War Paradigm" ? A "Peace Paradigm", or something different from each of them. Specifically, what policies, strategies and rules will cover encounters with violent non-state actors ?

    Those issues - with more questions than answers - are presently the gist of an ongoing conversation at Lawfare:

    Does the Armed-Conflict Model Matter in Practice Anymore? (by Robert Chesney, Friday, May 24, 2013)

    The Chesney Conjecture: Is This What Peace Looks Like? (by Benjamin Wittes, Monday, May 27, 2013)

    Eight Thoughts on the Broad Reading of Article II Inherent in Bobby’s Conjecture (by Jack Goldsmith, Tuesday, May 28, 2013)

    The key points made by Bobby Chesney about targeting and detention of violent non-state actors, using what is essentially a "War in Peacetime Paradigm", are these:

    Formally speaking, the answer is straightforward. With respect to detention, the end of the conflict by definition spells the end of authority to detain for the duration of hostilities (albeit subject to some reasonable wind-up period). And with respect to targeting, the end of the conflict would preclude invocation of status-based targeting (i.e., targeting individuals based either on their membership in the enemy force or, perhaps, on a continuous-combat function theory that approximates status-based targeting). The question is: would any of that matter in actual practice?
    ... What we do still do is use lethal force, but on close inspection, our uses of force outside of Afghanistan arguably do not depend on the existence of an armed conflict after all. As the Brennan speeches underscored, the government as a matter of policy has adopted constraints that limit the use of force outside the “hot battlefield” to scenarios involving an “imminent threat” to life in circumstances where capture is not feasible (albeit subject to an understanding of that phrase that would better be described as a “continuous threat” standard). This is far more restrictive than the status-based targeting model associated with armed conflict. Indeed, it is at least as restrictive as the boundaries of the self-defense model developed during the Reagan and Clinton years, discussed earlier.
    Today things are quite different. The capacity for collecting the requisite intelligence has expanded by leaps and bounds thanks to sweeping institutional and technological changes over the past dozen years, and in the same period we have acquired an extraordinary capacity to strike quickly and precisely thanks to armed drones. In short, the practical constraints on using force in self-defense have been removed, and if we find ourselves once more without a claim of armed conflict to support uses of force, we may well discover as a result that the pre-9/11 legal model is much less constraining than commonly assumed. Indeed, one might conclude that there is nothing currently done outside of Afghanistan by way of targeting under the color of the law of armed conflict that could not be done under color of the pre-9/11 self-defense model. Combined with the abandonment of detention as an option, in fact, it makes no sense to talk of a return to the pre-9/11 framework; we already are there in practice.
    Ben Wittes finds: "The single most challenging, interesting, and profound comments I have read about President Obama’s speech the other day is this post by Bobby. Drawn from his ongoing book project, Bobby poses the question of what the end of the conflict - sought by the Left for years and dangled before the American people in the President’s speech with passion and at length - really means." That being said, Ben asks a number of questions (and sub-questions):

    [1] So the first question is an empirical one: Is the Chesney Conjecture correct? Put another way: Leaving aside residual detention operations and residual combat operations in Afghanistan, can anyone identify U.S. operations anywhere in the world that rely on the AUMF that would not also find support in self-defense law given the US’s interpretation of imminence? If so, what are the set of activities in which the US is currently engaged that will have to stop with the lapsing the AUMF?

    [2] If the answer to this question is a null set and the logical conclusion is that we are already at peace (outside of Afghanistan), how do we feel about what we might term a militarily active peace - that is, a peace in which drone strikes and special forces operations take place regularly, a peace that is so minimally different from warfare that nobody (except Bobby) even noticed that we had transitioned from wartime to peacetime?

    [3] If the Chesney Conjecture is correct, it follows as well that the current debate over the future of the AUMF - a debate in which Bobby and I have both actively participated - is a bit of a misfire. Rather than asking what new authorization the president may need to conduct the shadow war, the question we should be asking is: What sort of authorization - if any - should Congress give to the executive branch for the routine use of military force in peacetime? If we frame the question this way, is there greater room for agreement between those who have argued against and those who have argued for openness to a new AUMF?
    Once one accepts a "militarily active peace" and the "use of military force in peacetime", one is following a "War in Peacetime Paradigm" - which may range from the more peacelike to the more warlike; but which is definitely neither "Peace" nor "War". I'd suggest that the World (and the US with the rest) have been following "War in Peacetime Paradigms" (of varying degrees of peacelike and warlike admixtures) since WWII.

    Jack Goldsmith offered an eight-point critical analysis of the particular "War in Peacetime Paradigm" posited in Chesney's argument - snips are the first sentence in each block of Goldsmith's comments:

    First, I agree with Bobby’s implication that we are on the road toward post-AUMF uses of military force around the globe justified entirely on the basis of selfdefense and the President’s Article II powers. ...
    Second, it would be an unprecedented expansion of Article II authority if the scope and scale of current military and paramilitary operations outside Afghanistan today were justified under Article II. ...
    Third, Ben asks: “[H]ow do we feel about what we might term a militarily active peace—that is, a peace in which drone strikes and special forces operations take place regularly, a peace that is so minimally different from warfare that nobody (except Bobby) even noticed that we had transitioned from wartime to peacetime?” ...
    Fourth, the stealth self-defensive war that Bobby describes and that I think the administration envisions in a post-AUMF world is even less bounded than the AUMF-war in this sense: force can be used wherever a threatening group meets the (slippery-at-best and auto-interpreted) “imminent threat” threshold, as long as the nation in question consents or is unwilling or unable to prevent the threat. ...
    Fifth, if it continues at anything like its current scale in a post-AUMF world, war based on Article II would be in even more need of congressional oversight and transparency than the AUMF war – especially in light the unboundedness described above, the Armed Services Committee’s apparent cluelessness about how DOD interprets its authorities today, and the Obama-era innovations of classified annexes to War Powers Resolution reports and the potential exclusion of many drone attacks from the WPR framework altogether. ...
    Sixth, between the Obama administration’s very expansive conception of “associated forces” (on display in the Armed Services Committee a few weeks ago) and its broad conception of an “imminent threat” that would justify the exercise of Article II uses of force, one can understand why the Executive branch is comfortable with its current authorities and does not want to change them, especially since the administration is allergic to military detention that a revised AUMF might (but needn’t) entail.

    Seventh, and speaking of detention, the major limiting factor of an Article II self-defensive war is that long-term military detention by the USG would as a practical matter be off the table, leaving instead the combination of lethal force, criminal process, and rendition that prevailed before 9/11 and that (presumably along with proxy detention and proxy rendition) prevails now. ...
    Eighth, perhaps I am overreacting because any post-AUMF self-defensive war would be significantly reduced in scale from the current AUMF-war, perhaps back to the pre-9/11 era scale of rare lethal action combined with criminal process, rendition, and the like. ...
    These are important issues which should not be limited to in-house discussions among lawyers. They are much more policy and strategy than law. I'd also suggest that the particular paradigm posited by Chesney as likely to be followed (which Goldsmith, and I, dislike) is not the only "War in Peacetime Paradigm" that one can select. The World's had enough small wars since 1945 to allow a wealth of choices.



  3. #163
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    Quote Originally Posted by jmm99 View Post
    I missed the program, but the CNN transcript is here.

    At its end, these comments:

    Something to consider.


    There are a number of good quotes from the show and it is well worth the time to watch it if you get the chance. One female analyst was actually counseled on her annual review for spending to much time on Bin Laden then 911 happened.

  4. #164
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    May 2008

    Default Military Operations and "Due Process" Don't Mix

    or, you can't have your cake and eat it too.

    Jeff Powell, a law professor at Duke, served in both the Clinton and Obama administrations in the Office of Legal Counsel:

    Deputy Assistant Attorney General (or designate), Office of Legal Counsel, United States Department of Justice (6/93 - 6/94, 1/96 - 7/96);

    Principal Deputy Solicitor General, United States Department of Justice (7/96 - 9/96);

    Special Government Employee, Office of Legal Counsel, United States Department of Justice (6/94 - 12/95, 9/96 - 1/2000);

    Deputy Assistant Attorney General, Office of Legal Counsel, United States Department of Justice (6/2011 - 4/2012).
    In his Lawfare guest post of today, Jeff Powell on Targeted Killing and Due Process, he addresses one facet of a multi-dimensional problem: the growing efforts to displace traditional military law with "due process" and "human rights" principles. Those efforts go beyond "legalities" to alteration of language itself - e.g., "small wars" become "humanitarian interventions".

    But, enough of my rants, and on to Powell's three key paragraphs (with key sentences bolded by me):

    It takes only a moment’s reflection to see that the President’s laudable procedures for imposing “strong oversight” over targeting decisions are worlds apart from Hamdi’s “essential constitutional promises” – indeed, it is hard to imagine how a military decision about attacking an enemy combatant could be otherwise. Of course the White Paper does not propose that potential targets be given notice of the government’s possible interest in killing them. Of course it does not contemplate, much less require, that a targeted individual be heard at any time or in any manner as to why the government is mistaken about his identity or activities. Of course it does not provide for a neutral and detached decisionmaker to resolve any factual uncertainty: the ultimate decisionmaker here is the President in his capacity as commander in chief, who (we should hope) is not in the least neutral or detached in carrying out his responsibility for national security. Calling the executive’s own procedures the due process that is meant to check arbitrary executive decisions isn’t merely an erosion of the “essential constitutional promises” but their wholesale repudiation. If Mr. Awlaki was entitled to due process, then his killing violated the Constitution.

    Since due process doesn’t apply to a US military decision, in a situation of actual and authorized hostilities, to attack a member of the enemy’s forces who is a legitimate target under the law of war, the Constitution was not in fact violated. But my concern here is to identify the patent error in the White Paper’s and the President’s thinking about due process, because that error is likely to confuse our thinking about the wisdom and morality of targeted killing. The decision to kill a known, identified human being is a brutal one, the action of doing so is ugly to think about, even apart from the fact that sometimes other people die (as Mr. Obama acknowledged with sorrow). This brutality and ugliness are part of the grim reality of war. When we pretend to ourselves that our procedures for making such decisions satisfies the constitutional requirements of due process, we cast a veil of civility and even humanity over something that is inherently violent and dehumanizing.

    I am not a pacifist, and I accept that the brutality of war is sometimes unavoidable. But the law’s antiseptic language about the weighing and balancing of interests according to “the traditional due process analysis” that supplies the legal “framework for assessing the process due a U.S. citizen” (I quote from the White Paper) masks, in a deeply misleading fashion, the brutality, the terror and the violence of war – even if we are right to conclude that we should take lethal action against our enemies. It serves no good purpose for the President and his advisors, or for any of us as citizens, to pretend that targeted killing is or can be anything other than the brutality it is.
    Less lethal areas are even more prone to admixtures of military and civilian law - searches, for example (and, the issues of electronic surveillance).



  5. #165
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    Default More Than Semantics

    The first two articles contain a wealth of data re: US drone strikes in Pakistan from a number of primary reporting organizations. So, they are worth reading for that reason alone.

    However, I'm using them here to illustrate the diversity between the reporting organizations in determining who is and who is not a "civilian". In short, the reported data are within the same metadata ball park so far as total persons killed are concerned; but vary dramatically in allocating "civilian" deaths among the total killed.

    First, we have A Meta-Study of Drone Strike Casualties (by Ritika Singh, July 22, 2013), describing the three major Western reporting organizations, as well as one organization reporting for 2011 only and another only critiquing the other organizations' reports:

    Five studies have played perhaps the most substantial role in shaping the public debate on civilian deaths from drone strikes. The New America Foundation (NAF) and the Long War Journal (LWJ), both based out of Washington DC, have created databases that are cited often by the media, policymakers, and academics. The Bureau of Investigative Journalism (BIJ) has also done work in this space—work challenging the low estimates of its American counterparts. The Columbia Law School Human Rights Clinic (CHRC) weighed in on the discussion with a recount of the number of drone strike casualties in Pakistan in 2011, using the data provided by these three organizations. And the International Human Rights and Conflict Resolution Clinic at Stanford Law School and the Global Justice Clinic at the NYU School of Law teamed up to conduct an investigation into several aspects of the U.S. targeted killing program in Pakistan and to provide a detailed narrative about the law and the policy behind it for the interested observer. This latter report does not offer estimates of its own, but it does present a critique of the others.
    If you are interested, Google Search will take you to their webpages (databases and formal reports).

    Here are the bottom lines for the Western big three:

    As of this writing, NAF’s casualty counts for Pakistan stand at: 258 to 307 civilians killed, 1,585 to 2,733 militants killed, and 196 to 330 unknown killed. The total number of people killed is 2,039 to 3,370. The rate of the civilian deaths, in other words, ranges between eight and fifteen percent.
    As of this writing, LWJ claims “2,526 leaders and operatives from Taliban, Al Qaeda, and allied extremist groups” and “153 civilians” have been killed in Pakistan since 2006. This yields a civilian death rate of nearly six percent.
    As of this writing, BIJ’s number of civilians killed in Pakistan since 2004 runs from 411 to 890 (the number of children killed is 167 to 197). The total killed is between 2,566 and 3,570. This leaves a civilian death rate that ranges greatly—between as low as twelve percent and as high as thirty-five percent.
    Note that the totals (adjusted for different reporting periods) are about 3000, plus or minus 500 or so - a fairly low deviation, as opposed to the "civilian" deviations.

    For 2011, we can compare four Western studies, with the following results:

    Number of Deaths from U.S. Drone Strikes in Pakistan in 2011

    NAF 303 – 502
    LWJ 405
    BIJ N.A. category
    CHRC 330 – 575

    NAF 57 – 65
    LWJ 30
    BIJ 52 – 146
    CHRC 72 – 155

    NAF 32 – 37
    N.A. for other three

    NAF 392 – 604
    LWJ 435
    BIJ 447 – 660
    CHRC 456 – 661

    Civilian Casualty Death Rate
    NAF 9% – 17%
    LWJ 7%
    BIJ 8% – 33%
    CHRC 11% – 34%
    Again, the metadata tends to center for total persons killed, but diverges as to the percentages of "civilian" deaths especially on the high end.

    These data were further refined in the second article, Chris Woods of the BIJ Responds (by Ritika Singh, July 25, 2013). BIA has been a major critic of the Obama administration's drone strike policies - and has alleged a relatively high rate of "civilian" deaths (see above).

    In this piece, however, Chris Woods notes the relative metadata centering - as to total persons killed - and adds another report and set of sources:

    I found your metastudy extremely interesting—particularly on that question of overlaps [between the estimates of the different counting groups]. What should happen—as data publicly available on the drone strikes improves—is that we might expect convergence on the datasets. That does seem now to be taking place with NAF and BIJ—which are far closer than [they were] a year ago. As you note, being dynamic is the key.

    For your general [reference,] Oxford Research Group also did a meta-analysis of datasets back in 2011. BIJ’s data hadn’t been published then; and a number of Pakistan organisations still strove to record casualty data. A different time and different conclusions.
    Ririka then added the following comments and chart:

    The study Woods draws attention to includes estimates from the New America Foundation and the Long War Journal, but is particularly interesting because it compares numbers from other organizations we almost never consider in this debate—several of which are based in the region: the Conflict Monitoring Centre (CMC), the Institute for Conflict Management’s (ICM), The News, Pakistan Institute for Peace Studies (PIPS), Pakistan Body Count, and Strengthening Participatory Organisation (SPO).

    As the report points out, the numbers of total deaths “tend to converge in the 800s and 900s, with 483 and 1,184 as outliers.” But a range of 2 to 789 civilian casualties in 2010 in Pakistan suggests that the difference between the estimates really may lie in the terminology—not the casualties.
    One can easily create a high or low number of "civilians" by simply jinking around with the definition. E.g., this "rule" defining both "civilians" and "combatants" as follows: Everyone is presumed to be a "civilian", unless it appears beyond a reasonable doubt that the person is an immediate lethal threat. What definition one picks is more determined by one's politics and what policies one feels is better for him or her.

    The next post will consider two more articles describing an impasse in the USG caused by different politics and policies.

    - to be cont. -

  6. #166
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    Default More Than Semantics - part 2

    Both articles are by Hays Parks.

    The first is from 2012, Update on the DOD Law of War Manual. First, we need some background:

    The United States military historically has held a leadership position in the development and publication of law of war manuals for its forces and those who command them to ensure compliance with the law of war obligations of this nation. U.S. Army General Orders No. 100, prepared by Professor Francis Lieber during the U.S. Civil War, was accepted and promulgated by President Abraham Lincoln on April 24, 1863. Thereafter the U.S. Army published RULES OF LAND WARFARE in 1914, in amended version in 1917, in an updated version in 1940, and again in slightly amended form in 1944. The Navy (May 1941, in draft form only) and Air Force (1976) published separate manuals. In 1956 the Army prepared and adopted a new manual, Field Manual 27-10, THE LAW OF LAND WARFARE, following U.S. ratification of the four 1949 Geneva Conventions the preceding year.
    The project to replace FM 27-10, with an all services Law of War Manual, began in the mid-1990s. It went along fairly smoothly (despite the significant legal changes caused by GWOT, and more than one argument with the Bush White House). By 2010, the Manual was ready for publication.

    Then, the Obama Administration's DoS, DoJ and NSC lawyers raised a number of roadblocks - which were not well met by the underqualified DoD civilian lawyer who was newly appointed as editor. We pick up that story in the second article from 2013, Where is the Law of War Manual? Here!:

    From the outset it was agreed that the manual would be apolitical—it would be based on the law rather than political arguments inconsistent with the law of war. For example, the working group rejected arguments by some Bush administration officials that the law of war did not protect captured al Qaeda and that “enhanced interrogation procedures,” including waterboarding, should not be banned.

    Obama administration political appointees, though, have aggressively sought changes in the manual to conform to their political philosophies or legal arguments in detainee litigation, pushing for rules and principles that vary from longstanding law of war treaty-based terminology and norms previously accepted by Republican and Democratic administrations.

    One of the more egregious changes proposed by State Department political appointees and human rights activists on the National Security Council was the removal of a paragraph acknowledging that the law of war is lex specialis—the controlling law in armed conflict. Denying the lex specialis status of the law of war would enable activists to inject human rights law into the manual and onto the battlefield. Deletion of the lex specialis text was apparently not sought on the basis that it was legally incorrect, but, we suspect, because it was inconsistent with their political agenda.

    Such a change would impose restrictions on U.S. forces in combat so that deadly force could be used only against an enemy who had refused a surrender opportunity or who posed an “imminent threat.” These requirements would place our fighters on a footing comparable to a police officer in the United States in a peacetime environment and at an extreme and unprecedented risk of being killed by the enemy or facing “war crimes” allegations by human rights activists.
    Of course, one should not be surprised that politics - and resultant policies - reared their heads.

    The first article provides some more examples of political correctness imposing its will:

    Editing responsibilities were assumed by a young DOD attorney lacking military or law of war training or experience.

    By way of example of State Department comments: The manual contains a chapter providing an explanation of each of the basic law of war principles. Even though they previously agreed to them, State Department lawyers complained that there was an unduly lengthy discussion of military necessity while not providing sufficient discussion of and emphasis on proportionality.

    The law of war principle of military necessity was contained in U.S. Army General Orders No. 100 written by Francis Lieber (e.g., articles 14-16). Because it often is misunderstood, a long explanation was necessary. In contrast, proportionality was not a part of any law of war treaty until 1977, at which time it was adopted on the condition that the term proportionality itself not be used in the treaty text because a vast number of nations – including the former Soviet Bloc, Middle Eastern (other than Israel) and African nations – declined to accept that the principle existed.

    Ironically, the manual’s discussion of military necessity was carefully researched and drafted by the late Edward Cummings who until his untimely death in 2006 was the State Department’s most senior and experienced law of war expert. The text had been endorsed by State Department lawyers as well as the international peer review.

    Without consultation with the DOD Law of War Working Group, the new DOD editor deleted the discussion of military necessity from the main body of the manual, copying it and inserting it as a footnote, apparently to “reduce its emphasis”; and placed the paragraphs on proportionality ahead of the discussion of the principle of distinction until it was brought to his attention that but for the centuries-old pedigree of the principle of distinction there would be no principle of proportionality.

    By way of another example, State Department lawyers, wanted the term “belligerent” to be substituted for “combatant”.

    As adopted and used by nations for more than a century, combatant is the accepted law of war term. It was adopted in the Annex to the 1899 Hague Declaration II (ratified by the United States in 1902) and its successor, the 1907 Hague Declaration IV (ratified by the United States in 1909), and Articles 43(2) and 44 of the 1977 Protocol I Additional to the 1949 Geneva Conventions (signed by the United States in 1977 but not ratified due to objections not relating to use of the term combatant). In contrast, the term belligerent is not used in any law of war treaty insofar as reference to individuals is concerned.
    These specific examples deal with terms that are material to rules of engagement - and distinctions between combatants, non-combatants and civilians.

    I think it is just as well that an impasse has been reached on the DoD Law of War Manual. The gap between the positions in the 2010 final draft and the later changes demanded by DoS, DoJ and NSC cannot be easily bridged. I don't think they should be bridged. The gap between the 2010 final draft and the apparent position of many EU-NATO governments is even larger.

    If those issues were solely matters of legal semantics, much less would be at stake. However, the same politics and policies also materially affect strategy and tactics - just as different politics and policies materially affected strategy and tactics in the Bush administration.



  7. #167
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    Default A Macroview

    Tools and Tradeoffs: Confronting U.S. Citizen Terrorist Suspects Abroad (Byman & Wittes, 17 Jun 2013):

    The killing of Awlaki as he left a funeral in Yemen put a spotlight on an important question: how does the U.S. government confront an American terror suspect abroad?

    For policymakers, the presence of American jihadists in foreign countries presents several tricky policy problems compared with similar foreign terrorists. In this paper, we explore the costs and benefits of several distinct approaches available to the U.S. government in confronting the threat of Americans fighting jihad against the United States from abroad.

    These include:

    • Targeting suspects with lethal force.

    • Capturing terror suspects and trying them in federal court.

    • Capturing suspects and detaining them in military custody.

    • Assisting the government of other countries to prosecute suspects on their

    • Tolerating the activities of the terror suspects.

    Also within this paper, we catalog the American citizens abroad who have joined the jihadist cause and operated overseas, focusing on those Americans who traveled overseas to join the enemy and have not attempted to return.


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