High Value Target HVT / Political Assassination

[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.

[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