High Value Target HVT / Political Assassination

[jmm99]

Hi Bill,

Indeed, I also find this nightmarish:

from Bill
... a bunch of a lawyers sitting around a very nice wooden table in a room with a high ceiling, large windows with a nice view and an overall classically designed room that gives an air of sosphistication, debating the legal issues concerning our transnational irregular foes. Of course at the same time in ghettos, deserts, mountains and jungles around the world our military, lawmen and covert operatives are out in the field risking their lives to prevent another attack on America with one or both hands tied behind their backs by the lawyers that do not recognize the reality of the threat today.

but then I got to thinking about the reality which too often looks like this (changing your wording a bit):

... a bunch of a politicians sitting around a very nice wooden table in a room with a high ceiling, large windows with a nice view and an overall classically designed room that gives an air of sosphistication, debating the legal and political issues, including the impact on the upcoming election, concerning our transnational irregular foes. Of course at the same time in ghettos, deserts, mountains and jungles around the world our military, lawmen and covert operatives are out in the field risking their lives to prevent another attack on America with one or both hands tied behind their backs by the politicians that do not recognize the reality of the threat today.

and many of the politicians are also lawyers - a partial answer to your last question ("Why didn't the government prevent it?").

There are rational solutions that could be adopted by the executive and legislative branches that would fully accord with the US Laws of War, including the GCs that we accept, re: irregular combatants, targeted killings, detainees and the whole ball of wax - and will result in (1) hands not tied behind backs; and (2) the courts not being involved in the process.

Curious: without going into specifics (OpSec), have staff military lawyers been useful or not in targeting and other special operations ?

Regards - like to write more but it's too late (after 0200 here).

Mike

[OccamsRazor]

Mike - as usual, a great analysis. A couple of things to add on:

1. Just for clarification, Boumediene v. Bush has changed the game. It held, in short, that the writ of habeas corpus extends to (1) those in held at Guantanamo Bay, and (2) a CSRT was not an adequate substitute for a true habeas hearing (even though it was modeled after Sandra Day O'Connor's suggestion in her plurality concurrence in Hamdi v. Rumsfeld). They justified the extension by stating that Guantanamo, while outside the borders of the physical sovereignty of the United States, was still under the Constitution's penumbra due to de facto jurisdiction.

2. It should be noted, and this is a topic of interest to me as I currently have an article under review on this topic, that the habeas hearing these alleged enemy combatants have a right to is not the one that a U.S. civilian would get. It is far less. For example, hearsay (which makes up a majority of the government's case against the detainee) is admissible, even though it is usually prevented from entering as evidence in a typical habeas hearing (with many exceptions, of course). Secondly, the burden of proof is that "a preponderance of the evidence" must show that the detainee is an enemy combatant. In a regular court, the punishment of imprisonment would demand "beyond a reasonable doubt" (much higher than a "preponderance"). These changes were made to attempt to facilitate the use of intelligence (perfectly satisfactory for a LOW determination of guilt, but problematic when applied to ROL).

3. Why are there these differences? Because the Supreme Court said that there could be, essentially.

Felker, Swain, and Hayman stand for the proposition that the Suspension Clause does not resist innovation in the field of habeas corpus. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ.

As such, there is, ostensibly, room for the District Court to be flexible in its creation of the procedures and format of the habeas hearings, which hopefully allow for a reasonable deliberation. It's my argument, despite the changes in #2, that they have failed considerably, leaving the government in a lose-lose situation when prosecuting detainees. Considering the shelf life of this topic (it changes pretty rapidly), I'm considering giving up on trying to get the article published in international security journals (the process takes forever), and submitting it to SWJ, but I'm still undecided.

Bill - I'm glad to be joining the club. I come from a family of warfighters, and, while I can't claim to understand the way of life and sacrifice, I feel that I at least know what I don't know, and don't presume anything otherwise.

davidbfpo - Good to see another IISS member. Have you ever gone to any of the conferences?

[davidbfpo]

Hat tip to Abu M: What is the value of high value targeting? A presentation by a veteran intelligence analyst Matt Frankel, on leave from his service in the intelligence community..., gave a compelling presentation on high value targeting (HVT) campaigns and their utility. His findings are; see the link:
http://www.cnas.org/blogs/abumuqawam....html#comments

Mr Frankel will be publishing more, plus slides, another time.

[Sylvan]

But at a different time.
After the fact is the wrong time for them to get involved.
Develop guidance that is simple, flexible and legally justifiable. Issue that to DoD and then get out of the way. The key point being that the guidance is based upon Commander's discretion. The amount of force used will indicate the rank required.

the targeting of HVTs is a key component of what we are doing, but I think that it is too much of a focus for the SPECOPS community. We have guardsmen doing FID and SF (some, not all) sitting on a large FOB waiting to do a basic infantry raid.
We all talk about the huge success killing Al Zarqawi but that really didn't change the over all scope of Iraq. (Despite the DFC awarded to the pilot who dropped the bomb)
Bombing civilians co-located, night time door kicking raids, and Hellfires in the middle of Pakistan carry a lot of STRATCOM/IO risks that most of what we call "HVTs" don't warrant in my opinion.
But, that isn't my decision. It isn't DoD's decision. It is rightfully the President and his lawyers to develop the guidance BEFORE the fact. After that guidance is in place, commander's are held accountable to that guidance.
But the second guessing after the fact and incessant law-fair is failing our troops and our security.

[Odysseus]

Great conversation/posts. Good points all around.

Don't know if you saw, but State Department legal advisor Harold Koh formally announced US legal position on targeted killings. A good recap is at http://insidejustice.com/law/index.p..._drone_war_law

Pulled the summary below from the Wikipedia manhunt site:

America Formally Announces Policy

On March 26, 2010, in a speech before the American Society of International Law, Department of State Legal Advisor Harold Koh formally announced the United States' legal interpretation of international law with respect to targeted killing. Koh first stated that "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war." He further explained that the United States is in "an armed conflict with al Qaeda, the Taliban, and the associated forces" and thus has the lawful right to use force "consistent with its inherent right to self-defense" under international law[45] in response to the 9/11 attacks. Under domestic law, he stated that targeted killings are authorized by the 2001 Authorization for Use of Military Force (AUMF). Although he contended that these international and domestic legal grounds "continue to this day," he also provided additional justification for current U.S. actions based on continued attacks and intent by al Qaeda. He concluded that the existence of this "ongoing armed conflict" grants legal authority to the United States to protect its citizens through the use of force, including lethal force, as a matter of self-defense. Koh then addressed specific legal reasoning and standards considered by the United States "when defending itself against high-level leaders planning the attacks." He reiterated the widely accepted conceptualization of an "organized terrorist enemy" as one that does not have conventional forces. Instead, such an enemy plans and executes its attacks while hiding among civilian populations, he said. As such, "that behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians." Koh identified three elements related to situational considerations that the United States uses when determining whether a specific targeted drone killing at a particular location will occur:

* Imminence of the threat
* Sovereignty of other States involved
* Willingness and ability of those States to suppress the threat the target poses

Koh stated that the "rules" of targeting operations used by the United States are consistent with principles under the laws of war. He cited two well-known principles that govern the State's use of force during an armed conflict: distinction and proportionality. These principles are designed to protect civilians once armed conflict has begun. They are recognized under customary international law as part of Jus in Bello (conduct during war).

* Distinction: Requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack.
* Proportionality: Prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

Koh said that the United States adheres to these standards and that the United States takes great care in the "planning and execution to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum

Thought this might interest you. There's some more debate/discourse on the issue at the original "Inside Justice" site, FYI.

[jmm99]

A timely response from the Obama Administration, with a link back to this thread.

Cheers

Mike

[jmm99]

Judging from tonite's MSNBC Countdown, the following, Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill (Wash Post), will generate much adverse comment from those opposed to use of armed conflict rules vs "terrorists".

From the WP article:

By Greg Miller
Washington Post Staff Writer
Wednesday, April 7, 2010; A08

A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military's Joint Special Operations Command and has survived at least one strike carried out by Yemeni forces with U.S. assistance against a gathering of suspected al-Qaeda operatives.

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations. ... (more in article).....

This ties in nicely with Harold Koh's remarks. However, if the Obama Administration follows previous decisions, someone will soon announce some other change which will be viewed by different folks as being "soft" on "terrorists".

Regards

Mike