High Value Target HVT / Political Assassination

[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.

[davidbfpo]

Glad to see an IISS article gets a mention here (I am a member too) and the article awaits my attention back home - thanks for the reminder to read it.

Added elsewhere: Have a look at Professor John Radsan's writings on this theme, I listened to him applying these issues to the use of drones a few months ago. Bio: http://www.wmitchell.edu/academics/faculty/radsan.asp and this abstract: http://papers.ssrn.com/sol3/papers.c...t_id=1349357##

John Radsan has an interesting past, notably being a lawyer at the CIA, so IMHO adds to the value and insight provided.

Killing HVT or allegations of this occurred several times during the Northern Ireland 'Troubles', a taster is provided by: http://en.wikipedia.org/wiki/Shoot-t...rthern_Ireland or just search on John Stalker, an English senior police officer who tried to investigate one allegation and his career ended. The allegations are still "alive" (no pun intended) as indicated by BBC reports.

[Bill Moore]

Mike,

Interesting posts, which unfortunately give me this nightmarish vision of 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.

We obviously have findings that allow us to conduct targeted killings as demonstrated numerous times in Pakistan and elsewhere (Somalia for one example). I think targeted killings should be pursued more aggressively, but more covertly and surgical when possible. The weapon of choice shouldn't automatically be a UAV with a hellfire missile in most cases due to the fact that innocent civilians are killed, and in most cases it is not acceptable morally or politically. Yet this is one of many examples where desire (a surgical kill) bumps up against reality. Intelligence on many targets is fleeting, you have to act fast (no time for long philosophical discussions), so one way you can get there quickly in hostile territory is to fly a UAV over, get a lock in on your targeted site and launch. Frequently effective, but one can only hope there is adult leadership in the kill chain of command. Preferably an operator with ground experience that understands what death is, what it looks like and the repercussions, versus an air force officer who hasn't ever been closer to a battlefied than being 10,000 feet above it, and his/her metric for success is simply dropping a bomb on the right spot without considering the effects on people or the overall operation.

We inutatively know that we can't allow wingnuts to have a safehaven, especially one we created with our own laws. In the end the government must remain legitimate to its people, and if they don't take all necessary measures to protect their people they'll be removed. Governments are obligated to conduct targeted killings. Of course the left leaning media will oppose these attacks, and pundits will discuss for hours on radio and T.V. how these activities undermine our society by giving government too much power, but the tone conversation would change very quickly if that kid was successful in destroying our commerial airline on Christmas and slaughtering over 200 civilians from many countries. Why didn't the government prevent it?

[Bill Moore]

OccamsRazor welcome to the SWJ Council, I think you'll enjoy many of the interesting discussions here. I especially enjoy frustrating lawyers

[jmm99]

This question follows from this:

from OR
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.

Factually, the Hamdan case is an example - two bad guys KIA; two captured (one being Hamdan, the driver of the second vehicle).

Prior to the Hamdan trial, Keith Allred (CAPT, USN) filed two opinions which bear on the ultimate question posed - why are habeas proceedings required at all ? Judge Allred's opinions of 17 & 19 Dec 2007 are reported and linked at Hamdan, UBL's driver. In July 2008, the detainee's attorney appeared before Judge Robertson of the DC Circuit to stay Hamdan's MCA trial. Judge Robertson denied the stay; and no appeal was taken (Hamdan & al-Marri Updates).

Here are key facts found by Judge Allred in his 19 Dec 2007 opinion:

Hamdan capture.jpg

To this, add the findings that Hamdan was a sworn member of AQ, and UBL's driver and bodyguard.

Based primarily on the roadblock incident, Judge Allred found that, by a preponderence of the evidence, Hamdan was an "alien unlawful enemy combatant" under the MCA and was not a "lawful combatant" under either the MCA or GC III (GPW). One might ask why Judge Allred found it necessary to hold a merits hearing in Dec 2007 well before trial; to take proofs essentially the same as have been taken in Gitmo habeas cases; and decide the "combatant" issues using essentially the same standard of proof used in the Gitmo habeas cases. The answer lies in Judge Allred's 17 Dec 2007 opinion, allowing an "Article 5 (GPW) Status Hearing".

The GCs (accepted by the US) provide for hearings before "competent tribunals" in several instances:

1. GC III (Prisoners of War):

Art 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

2a. GC IV (Civilians - Internment)

Art. 42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.
.....
Art. 43. Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.
.....
Art. 78. If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.

Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power.

2b. GC IV (Civilians - Sentences)

Art. 71. No sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial.

Accused persons who are prosecuted by the Occupying Power shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them, and shall be brought to trial as rapidly as possible. ....

3. Common Article 3 (all GCs)

Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
...
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

In Hamdan, the detainee claimed EPW status under GC III - and hence was entitled to an Article 5 hearing.

In all of the Gitmo habeas cases so far decided, the detainees have claimed civilian status (not a combatant) with rights to hearings under GC IV, 41, 42 & 78 (some other GC IV provisions also may play) to determine that status and whether they are security risks.

The USG, on the other hand, has claimed that the Gitmo detainees are held under Common Article 3, which SCOTUS has held applicable to combatants of non-state actors not meeting the requirements of EPWs under GC III. CA 3 does not itself require a detainment hearing (it only requires a hearing before a sentencing or execution). But, a detainee can obtain a GC III, Art. 5 hearing, or a GC IV, Art. 41-78 hearing, by claiming EPW or civilian status.

In Hamdan, the USG claimed that the CSRT determinations met the GC III, Art. 5 standard. Judge Allred disagreed (pp. 1-4 of 17 Dec 2007 opinion), finding that Congress intended that the CSRT make an Article 5 determination; but that the DoD instructions did not task the CSRTs to make that determination. The bottom line was:

Hamdan capture 02.jpg

The CSRT instructions also did not task the CSRTs with making GC IV, Art. 41-78 determinations either. So, the CSRTs were deficient for those detainees claiming civilian status as well.

In short, because the CSRTs did not apply the applicable Laws of War, the detainees could claim that their status had not been properly determined. So, the DC judges had to do what the CSRTs were not tasked to do. That is the short of the story of why the Rule of Law (habeas) was used to apply the Laws of War (GC III and IV required determinations).

Regards

Mike

[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.