High Value Target HVT / Political Assassination

[jmm99]

From time to time, targeted killings (HVTs) have been discussed here and elsewhere. So far as current operations are concerned, the topic is an OpSec mantrap. I've looked at it generally from a legal standpoint. Basically, legality comes down to whether the Laws of War apply and the HVT can be considered a combatant of a power in an armed conflict (kill anytime, anyplace); or whether some form of Law Enforcement rules apply.

I somehow missed downloading the 2009 Crawford JSOU article which Ted posted a month ago - so thanks for the Wiki link reminder. Another decent JSOU article is 2007 Turbiville, JSOU Report 07-6 Hunting Leadership Targets, linked above a couple of years ago.

[OccamsRazor]

IISS wrote a considerably interesting article concerning targeted killing in Pakistan. They focused on how the Obama administration is maintaining the practice (there were 36 unmanned aerial vehicle attacks in 2008, and 20 in the first 8 months of 2009), and that the administration is using it as a significant element of their way forward - "Bureaucratically, the Obama administration has already set the table for adopting this strategy: for FY 2010, it has requested $79.7 million for Hellfire missiles and $489,4m for 34 Reapers, nearly doubling the 2009 number."

The most interesting part of the article, although it didn't frame it as such, is its application to just war theory and international humanitarian law.

"On this issue, the laws of armed conflict broadly apply, and they require that the use of military force be necessary, as a matter of self-defense, to eliminate a genuine threat and that it be reasonably proportionate to that threat."

As such, it is possible that targeted killing, coupled with the amount of civilian collateral damage that typically follows a strike, might be politically counter-productive, especially since Obama has heavily emphasized has he prefers law enforcement and due process as tools to combat radical Islam, vice military force. Reaching into Pakistani outlands for a strike is one thing, but if strikes reach deeper into the more developed areas of the country (where there is greater culture of safety and governmental protection, and also a higher risk of civilian casualties) there will be a Pakistani outrage of a directly greater proportion. Protests of the United States violating the sovereignty of another nuclear power would seem inevitable.

The flip side, I think, is that Article 4 of the Geneva Convention essentially says that using civilians as a shield (the prevalent reason for collateral damage resulting from targeted killing) cannot immunize legitimate military targets from attacks, which gives the administration some breathing room.

The conclusion of the article is the the Obama administration should take steps to legitimize (by providing transparent procedural oversight) the targeted killing process, as a pre-emptive move to preclude vast international disapproval (perhaps a Gitmo like situation).

Great discussion and information in this thread - I'm looking to write a paper in this area as well.

[jmm99]

You could write a book on this quagmire - targeted killiing of HVTs - because whatever doctrine is evolved cuts across so many areas. Also, so far as current operations are concerned, we would create an OpSec mantrap by delving into them on a public forum.

We could deal with them on a futuristic basis, using open-source examples and existing legal decisions as our cannon fodder for whatever doctrines might be devloped.

Like all applications (e.g., ROEs, RUFs, etc.) of the Laws of Armed Conflict, we have three inputs:

1. Political (including Diplomatic) Considerations.

2. Military Operational Considerations.

3. Legal Considerations (which as much as possible should be driven by the political and military considerations - IMO).

In the area of Transnational Violent Non-State Actors (TVNSAs), e.g., AQ, we have to deal with classification of those who may be hit by the targeted strike - in LOAC terms, definition, distinction, and the concomitant concepts of military need and proportionality. The basic classifications:

1. TVNSA combatants.

2. TVNSA non-combatants.

3. Civilians (not TVNSA).

All of this is merely a subtopic of the more general class of "irregular combatants", their supporting infrastructures and auxilliaries, and the poor ba$tards among whom the "irregulars" hide. Cf., Phoenix program in Vietnam.

Geographic location of the target also enters into the picture:

1. Target within the international boundaries of the Attacking Nation (some interesting questions if a TVNSA combatant is inside the US).

2. Target within territory occupied by the AN.

3. Target within nation where AN is present under SOFA, FID, SFA, etc..

4. Target within nation which consents (overtly or covertly) to AN attack.

5. Target within nation which does not consent to AN attack (issues re: combatants using "right of passage" through a neutral nation; e.g., Laos and Cambodia during Indochina II - 1959-1975).

Further important points are whether the AUMF (Authorization to Use Military Force) properly defines the TVNSA and its members; and whether there is a comprehensive legislative and executive branch schema defining and providing distinction between TVNSA combatants, TVNSA non-combatants and civilians.

Hey Bill Moore, if you happen to read this, would this be a good place to discuss more fully the "irregular combatant" in all the political, miilitary and legal aspects that should apply in the real world ?

Regards

Mike

[jmm99]

This article primarily addresses the Political (including Diplomatic) Considerations, with lesser emphasis on the Military Considerations. It does address Legal Considerations to some extent (pp.11-14 pdf).

Here are some excerpts - the first dealing with the "lawyerly consensus":

Lawyers by consensus regard transnational terrorism as a transgression falling uneasily between the cracks of traditional criminal law and the customary law of armed conflict, and targeted killing as a punitive remedy falling just as discomfitingly between the cracks of those two legal regimes as well as international humanitarian law. For basically pragmatic and prudential reasons, they are generally willing to accept that targeted killing is not tantamount to government-sanctioned political assassination, which has run counter to US policy since 1976 (In that year President Gerald Ford issued Executive Order 11905 barring assassination, after revelations of CIA attempts to assassinate several heads of state, notably Cuban leader Fidel Castro.[15]) They also concede the reality that full due process cannot always be afforded terrorists owing to the immediate threat some pose, and the operational impracticality of subjecting purportedly actionable intelligence to quasi-judicial review in very tight time frames.[16] But a level of indiscriminateness that claims civilian casualties at an order of magnitude higher than legitimate ones is not only dubious in ethical and humanitarian terms, but may also be politically counter-productive. On this issue, the laws of armed conflict broadly apply, and they require that the use of military force be necessary, as a matter of self-defence, to eliminate a genuine threat and that it be reasonably proportionate to that threat.

15 The prohibition has been skirted in a number of instances by means of military ‘leadership strikes’ targeting political leaders, such as the US bombing of Libya in 1986, which clearly targeted Libyan leader Muammar Gadhafi, and the opening salvos of the Iraq War in 2003, which were unabashedly intended to kill Iraqi President Saddam Hussein.

16 See, for example, Kenneth Anderson, ‘Targeted Killing in U.S. Counterterrorism Law and Strategy’, A Working Paper on Counterterrorism and American Statutory Law, a Joint Project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution, 11 May 2009, pp. 9-12; http://cryptome.org/kill-lawyers.pdf.

The last cited "kill-lawyers.pdf" (if literally true) would give a new, modern meaning to Shakespeare and targeted killings.

The fact is that there is no lawyerly consensus. The view represented by the Eminent Jurists Panel excludes the Laws of War from application to TVNSAs. The view of some in the US (e.g., some Fox News pundits) is that the Rule of Law has no place in this arena under any circumstances. Then we have Lawyer Stevenson (JD Boston University) who seeks to meld the Laws of War and Rule of Law in an acceptable fruit salad.

Then there is my view (which is not a datapoint of one) which looks at this arena as one in which concurrent jurisdictions apply in many cases. In short, the Laws of War and the Rule of Law may both apply to the same individual who is a TVNSA combatant. However, while that approach allows two options to be pursued, the courses of action differ depending on whether the military or civilian paths are followed. You can't mix the two systems without failure.

Simon-Stevenson (after some policy discussion) then point out some practical issues:

The legality of targeted killing remains hotly contested between the national governments with the standoff targeting capabilities and humanitarian lawyers who view it as an evasion of at least three legal regimes and a practice which, if endorsed by law, raises the incentive to use force rather than resort to law to a dangerous and uncivilised degree.[18] This debate will take time to resolve. But it seems safe to say now that, based on considerations of criminal law, international humanitarian law and the law of armed conflict, and from a moral as well as a legal standpoint, the only arguably acceptable substitute for due process in the context of targeted killing is a combination of accurate intelligence, assiduous target selection that prioritises minimising civilian casualties, and technically precise targeting. Review processes have been established for both assessing the accuracy of purportedly actionable intelligence and determining the feasibility of targeting a given terrorist with a minimal probability of harming innocent civilians.[19] But the details of the procedures used and the level of scrutiny applied remain essentially secret, and certainly closely held by the US military and the CIA.[20] Moreover, these procedures are reportedly routinely disregarded in the field, where mid-level operational commanders or CIA officers sometimes order drone strikes without higher approval.[21] Finally, fears about the integrity of targeted-killing operations have arisen from disclosures that disreputable private military contractors have been hired to deploy missiles on Predators.[22]

19 See, for example, Eben Kaplan, ‘Backgrounder: Targeted Killings’, Council on Foreign Relations, March 2006, http://www.cfr.org/publication/9627/.

20 See Hina Shamsi, ‘No Longer A Debate About Targeted Killings’, CBS News, 21 July 2009, http://www.cbsnews.com/stories//2009...n5176876.shtml.

21 See David Montero, ‘Use of Drones in Pakistan and Afghanistan: Deadly, but Legal?’, Christian Science Monitor, 12 August 2009, http://www.csmonitor.com/2009/0812/p99s01-duts.html; Rajiv Chandrasekaran, ‘Sole Informant Guided Decision on Afghan Strike’, Washington Post, 4 September 2009m p. A1.

22 See James Risen and Mark Mazzetti, ‘C.I.A. Said to Use Outsiders to Put Bombs on Drones’, New York Times, 20 August 2009.

Note that the authors have reached the conclusion that there is "only [one] arguably acceptable substitute for due process" - "due process" being a Rule of Law concept. The solution therefore is a collage "based on considerations of criminal law, international humanitarian law and the law of armed conflict."

That fruit salad becomes more apparent as we reach the conclusion of the "legal section":

Accordingly, some balance between procedural transparency and substantive secrecy ought to be achievable, and the administration should try to strike it. Greater accountability would tend to engender a more rigorous targeting-review policy and could, perforce, lead to fewer civilian casualties. American analyst Daniel Byman, looking at the Israeli experience, has outlined sensible procedures for assessing the operational validity of targeting particular individuals.[24] There is no obvious reason that a review process similar to the one he has described, involving sequential consideration up the military and civilian chain of command, then a legal review by a Justice Department official, and finally a judgment by a special court modelled on the statutorily created Foreign Intelligence Surveillance Act court, could not be systematically imposed across a wider range of target-selection criteria, including the likelihood of collateral damage.

The bolded text is sheer lunacy - it makes the micro-management of direct actions, which we have seen leading to failures, pale in comparison - "sequential consideration up the military and civilian chain of command, then a legal review by a Justice Department official, and finally a judgment by a special court."

From a legal standpoint, I would hope that a majority of SCOTUS would declare this unconstitutional cuz (1) the matters are assigned to the executive and legislative branches and outside the purview of Article III; (2) except for TVNSA combatants within the US (as defined in the Gitmo cases), the matters are beyond the territorial jurisdiction of Article III courts; and (3) the matters do not constitute a "case or controversy" and constitute advisory opinions. With some more thought, more arguments probably could be developed.

Now, from a military standpoint, could you military types tell me what is wrong with "sequential consideration up the military and civilian chain of command, then a legal review by a Justice Department official" ?

I don't like mixtures of apples and oranges, which the Simon-Stevenson article is (IMO - others may differ).

Regards

Mike

[OccamsRazor]

Great information, and a good analysis of the article.

A couple of notes:

1. I'm only about 5 pages through the 44 of the the "kill-lawyers.pdf", but so far I highly recommend it. It talks (so far) about the narrow confines in which targeted killings operate, and how the US can protect those borders (and perhaps expand them). I think that it somewhat takes the dual jurisdiction approach, at least thus far in the analysis, as it talks about staking out a legal theory both in and outside the realms of IHL. Specifically, there's an interesting section on the role of Congress, and making targeted killing the official international stance of the United States. This leads back into the IISS article.

2. While the proposed review process (especially the role of the special court) largely eviscerates the efficacy of targeted killing (not to mention that the characteristics and limited window of targeted killing distinguish it significantly from FISA), I thought that the article made a good point about making a public case for targeted killing from the US international pulpit. Again, perhaps the review system doesn't need such onerous oversight for the appearance of legitimacy, but I think it would help if the government (namely Obama) got up there and set out the rationale for targeted killing - the need, practicality, strategic necessity, legality, and morality.

3. Your constitutional arguments are well-based. I've taken Con Law, and I'm familiar with the case or controversy requirement. With that being said, why isn't the FISA court unconstitutional on the same grounds (3)? It's certainly not adversarial, and I think it fits the textbook definition of an advisory opinion. (2) FISA jurisdiction (domestic) is fine, but (1) is unclear in respect to the FISA court. Off topic, but confusing to me none the less! Perhaps it just hasn't been challenged?

[jmm99]

Looking at the FISA Wiki and FAQs, I notice only that its constitutionality has been upheld:

19. Is FISA really constitutional?

Lower courts have found FISA constitutional. See e.g., United States v. Duggan, 743 F.2d 59(2d Cir. 1984); United States v. Belfield, 692 F.2d 141 (D.C.Cir 1982); United States v. Nicholson, 955 F.Supp. 588 (E.D. Va. 1997).

In United States v. U.S. District Court, the Supreme Court used a two-part Fourth Amendment reasonableness test. It is doubtful whether the FISA review process satisfies the Court's first measure of the reasonableness of warrantless surveillance -- whether the citizens' interest in privacy and free expression are better served by a warrant requirement.

The second element—whether a judicially imposed law enforcement warrant requirement would "unduly frustrate the efforts of Government to protect itself"—may be more easily met in the foreign intelligence setting. But Title III has for more than 30 years required more stringent procedures for criminal investigatory wiretaps.

but haven't looked at the cases for what grounds of unconstitutionality were raised. The grounds stated in the last two quoted paragraphs deal with Fourth Amendment, not Article III, issues.

I suppose the argument could be (and it is something of a bootstrap) that issuance of warrants (a non-adversarial proceeding in itself) by Federal judges and magistrates is a judicial function going back into pre-Constituitional common law. A warrant does not necessarily develop into a criminal case; and if it does, that case is not necessarily before the judge or court that issued the warrant.

A FISA warrant may or may not lead to a criminal charge, which if brought would be before a regular Federal District court (clearly a "case or controversy" at that point). That's the best I can think of off the top of my pointy head.

A "targeted killing" court would have no historical precedent. In fact, the historical precedent (death sentence) requires a full-blown adversarial proceeding.

That is an interesting point to consider: why can we kill enemy combatants without judicial proceedings ? The answer is that traditionally enemy combatants come under the Laws of War, which allow that (subject to limitations, etc.; but imposed by the Laws of War). Concepts imposed by the Rule of Law (whether domestic or international), due process, search & seizure, coerced confessions, fruit of the poisonous tree, etc., do not apply to the Laws of War in full measure, if at all.

Envision a situation where a group of AQ irregular combatants invade the local school in your US town. One option is law enforcement rules (Rule of Law - more restrictive, but maybe a better way to go to get the kiddies out alive). Another is military engagement rules (Laws of War), which could be less restrictive, but might not be the best choice in a hostage situation. My own choice would be to go with the Laws of War, but adopt law enforcement tactics. Just because you have a hunting license, you don't have to kill everything in the forest.

OK, the hostage situation comes out fairly well (not too many kiddies killed); some bad guys down and out; some surrender. What to do with them ? I'd say there are two paths (not necessarily exclusive). The default path should be detainment as irregular combatants for the duration of the conflict - they are security risks (under the Laws of War). An optional path would be domestic criminal prosecutions (Rule of Law) - cf., Noriega.

At home tonite, I'll have to download the "kill-lawyers" article (love "kill-lawyers") and read it more thoroughly. BTW, the Simon-Stevenson article is well-written and researched; but I couldn't buy their "solution".

Regards

Mike

PS: Had to add this from the Anderson article (quick skim) cuz I like it when someone agrees with me (p.42, note 61):

61 For a tiny sample, see notes to Amos N. Guiora, Targeted Killing as Active Self Defense, 36 CASE W. RES. J. INT’L L. 319 (2004). I have not in this chapter devoted attention to Israel, although it has a far more developed jurisprudence around targeted killing than the United States. The reason is that the nature of the long-term conflict, the fact that the conflict takes place in a confined geographic space, the special role of the Israeli Supreme Court in Israeli society and other factors make me believe that the Israeli experience is actually less instructive for the United States than one might otherwise have thought. It seems to me quite inappropriate in the U.S. context to discuss judicial review of targeting killing, for example.

[OccamsRazor]

That is an interesting point to consider: why can we kill enemy combatants without judicial proceedings ? The answer is that traditionally enemy combatants come under the Laws of War, which allow that (subject to limitations, etc.; but imposed by the Laws of War). Concepts imposed by the Rule of Law (whether domestic or international), due process, search & seizure, coerced confessions, fruit of the poisonous tree, etc., do not apply to the Laws of War in full measure, if at all.

This issue rears its head in other manners as well. Clearly, sometimes it's not as easy as simply just "choosing" what rule of law to operate under. Enemy combatants at Gitmo is the perfect example. If under the penumbra of the LOW, we find ourselves in a very different situation than we are now.

Interestingly, it's likely that some percentage of those individuals at Gitmo could have been outright killed (armed combatant, etc) under the LOW without any type of trial (suitable for capital punishment), but now have the privilege of a habeas hearing in the DC District Court under the ROL. Recently, the predominant conflict has revolved around the CSRT enemy combatant standard vs. the domestic habeas standard, but it is often forgotten that for many of the individuals, no standard whatsoever was required for immediate death (never mind imprisonment) in the initial confrontation.

Kind of makes the Erie Doctrine seem juvenile.