Using drones: principles, tactics and results (amended title)

[ODB]

NY Times article Feb 10, 2014: "WASHINGTON — The Obama administration is debating whether to authorize a lethal strike against an American citizen living in Pakistan who some believe is actively plotting terrorist attacks, according to current and former government officials.

It is the first time American officials have actively discussed killing an American citizen overseas since President Obama imposed new restrictions on drone operations last May." Read more here: http://www.nytimes.com/2014/02/11/wo...stan.html?_r=0

A subject which in my opinion does not draw enough attention considering the targeting of one's own citizens.

[JMA]

What's the legal position?

NY Times article Feb 10, 2014: "WASHINGTON — The Obama administration is debating whether to authorize a lethal strike against an American citizen living in Pakistan who some believe is actively plotting terrorist attacks, according to current and former government officials.

It is the first time American officials have actively discussed killing an American citizen overseas since President Obama imposed new restrictions on drone operations last May." Read more here: http://www.nytimes.com/2014/02/11/wo...stan.html?_r=0

A subject which in my opinion does not draw enough attention considering the targeting of one's own citizens.

[jmm99]

But first, ODB, good to see the Buddha Belly back posting.

The Short Legal Position starts with the 2001 AUMF, S.J.Res. 23 (107th): Authorization for Use of Military Force, which boils down to one sub-paragraph (JMM emphasis added):

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

During the Bush II Administration, the 2001 AUMF was viewed flexibly with respect to the President's authorization to determine whether a nation, organization or person was within its scope for "future acts of international terrorism". The question (say, as to organizations and persons) was whether the organization or person was closely enough tied to AQ or the Taliban (which harbored AQ) to be considered part of either organization either directly or as an "affiliate", "associate", "franchisee", and all the rest of the buzz words that developed. That question (decided in hundreds of detainee cases that haven't had the publicity of the direct actions and drone strikes, in the Federal courts - I'd include SCOTUS), is primarily a political question - the President's decision will usually be final.

In traditional military terms, the first question is defining the "enemy" (a nation, organization or person subject to the AUMF), which is a Presidential determination. Let's say he's done that and the "AQ Expatriates of Upper Michigan", now in country "X", are within the AUMF (in broad terms, the "enemy") - and let's say that its members are all US citizens.

The next question is whether a given member of the "AQ Expatriates of Upper Michigan", now in country "X", is a combatant or not . Combatant vs non-combatant matrices are developed employing co-operation under Title 10 (the US Code title governing the military) and Title 50 (the US Code title governing the civilian intelligence agencies). That T10-T50 co-operation could extend into the direct action or drone strike itself - killing UBL being a case in point.

If the member is purely a political supporter, he will likely fall into a non-combatant matrix. If his role is more active in military "stuff", he will likely fall into a combatant matrix. Another practical question is "fall into a matrix" by what standard: "more likely than not"; "clear and convincing proof"; "beyond a reasonable doubt", etc. (including such grammatical incoherences as "to a reasonable certainty").

In short, the process reduces to the traditional PID of a combatant member of an enemy force, who can be killed in any place and at any time, armed or unarmed.

Does US citizenship make a difference ? The answer is negative, if one looks to the traditional test for the "privileges and immunities" of US citizens (or, for that matter, to the expanded version of Clarence Thomas, to which I personally adhere as a Second Amendment proponent). A US citizen has no "privilege" or "immunity" to become a combatant member of an enemy force; and can be killed the same as any non-US citizen member of that force. E.g., those German-Americans who joined German forces in WWII; or, for that matter, the Confederate soldiers of the Civil War under the Lieber Code, and the Union soldiers under the Confederate Articles of War that actually preceded the Lieber Code.

That is my legal position.

Having said all that, there are many opponents of the AUMF in general; of direct actions and drone strikes in particular; and of using direct actions and drone strikes to kill American citizens in foreign countries, even when they are combatant members of an enemy force. The Obama administration itself has many such opponents; and the President himself seems "intellectually divided" in this and related areas. My dad taught me to salute (respect) the office, not the man.

Let's call the position of the opponents of my position, the Long Legal Position - actually a collection of multiple, long legal positions. I don't have time to do that now; but have exemplified and explained my opponents' positions in other threads.

Regards

Mike

[jmm99]

AP broke this story on Monday, when Lawfare's Jack Goldsmith filed a very short comment, U.S. Citizen Possibly Targeted for Drone Attack, with a short snip from the AP story:

Kimberly Dozier AP reports this morning that “[a]n American citizen who is a member of al-Qaida is actively planning attacks against Americans overseas, . . . and the Obama administration is wrestling with whether to kill him with a drone strike and how to do so legally under its new stricter targeting policy issued last year.” Dozier makes it seem like the Obama administration’s drone policy is tying it in knots ...

from Dozier AP

The CIA drones watching him cannot strike because he’s a U.S. citizen and the Justice Department must build a case against him, a task it hasn’t completed.

Four U.S. officials said the American suspected terrorist is in a country that refuses U.S. military action on its soil and that has proved unable to go after him. And President Barack Obama’s new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House.

Two of the officials described the man as an al-Qaida facilitator who has been directly responsible for deadly attacks against U.S. citizens overseas and who continues to plan attacks against them that would use improvised explosive devices.

But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.

Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.

The Dozier story is longer, Obama Officials Weigh Drone Attack on US Suspect, with multiple reader comments.

The NYT and WSJ (pay wall) chimed in this morning, which caused Jack to author, Reactions to Stories on Possible New U.S. Citizen Strike, with some caustic comments:

The NYT says that President Obama’s announcement last May of an intention “to gradually shift drone operations from the C.I.A. to the Pentagon” was designed in part “to make them more transparent.” The theory, I think, was that CIA strikes are covert and cannot be confirmed, while DOD strikes need not be covert and in theory can be subject to open government discussion and greater scrutiny. There have always been problems with this theory.

One is that DOD is no more transparent than CIA concerning its drone strike practices; if anything, measured by official openness and proneness to leak, it is less transparent. A shift to DOD means a (possible) shift away from the cloak of covert action and thus makes it possible for more American openness about drone strikes, but it does not guarantee more openness – as the lack of transparency about DOD strikes since last May makes plain.

Another problem with the ostensible transfer to DOD is that, for reasons I do not appreciate, DOD seems to make many more targeting errors than CIA. Mazzetti made this point in his book (as summarized here; JMM: book review by Jack), and as recently as last December, an errant drone strike “carried out by the Defense Department’s Joint Special Operations Command, not the CIA” mistakenly killed a dozen people in Yemen. (Consistent with the first point, DOD has had no public comment on this errant strike.)

The NYT says that the President’s classified drone strike policy, which lays down a preference for DOD over CIA strikes, “allow exceptions if necessary.” We should not be too cynical about this – presumptions can have bite even if they can be overcome. (That said, there is something odd about a debate on the front pages of the leading newspapers, all based on leaks, about classified drone policies that aim for but do not achieve more transparency.)

The WSJ says that because the targeting “suspect is an American, agency officials were required under the new drone policy to submit the name for review.” It is not clear why or how this policy is new. By all accounts, the only other intentional strike of an American citizen, against Anwar Al-Awlaki, was preceded by extensive DOJ legal review.

The WSJ also says: “Some officials believe that while a military strike has a stronger legal basis, a CIA strike would be easier to carry out in a country that won’t accede to a U.S. strike.” We have discussed this point before and I still don’t get it. Assuming that the same targeting rules apply, including the same jus in bello scrutiny, I do not see why a DOD strike would have a stronger legal basis under domestic or international law.

Perhaps a hint lies in this statement in the WSJ: “The military can only conduct strikes in countries where the government assents.” That statement is clearly false – Iraq did not assent in 2003, nor did Yugoslavia in 1999; and moreover, Special Operations forces operate in many countries, and DOD sometimes operates covertly.

But perhaps the statement is getting at this difference between CIA and DOD strikes: DOD will not act in ways that it believes violate the UN Charter, while the CIA will do so. Does that mean that concerns about the differential legality of a DOD as opposed to a CIA strike in Pakistan implies that the USG lacks Pakistan consent or an adequate self-defense argument under the UN Charter, and thus thinks it would be violating international law (the Charter) in carrying out such a strike?

Resources on targeted killing (direct actions and drone strikes), both as to its national and international political and legal aspects, including something of an over-emphasis on US citizens (4 have been killed; 3 as collateral deaths), are easy enough to find.

Thus, at Lawfare, The Lawfare Wiki Document Library - Targeted Killing, which leads to more linked documents than most readers probably want.

At SWC, we have besides this thread (more on the political aspects), the thread The Rules - Engaging HVTs & OBL (more on the rules of engagement, including US citizens; the discussion is less formalized than Lawfare).

Regards

Mike

PS: I note my ambiguity in my prior post in this pair of sentences:

Having said all that, there are many opponents of the AUMF in general; of direct actions and drone strikes in particular; and of using direct actions and drone strikes to kill American citizens in foreign countries, even when they are combatant members of an enemy force. The Obama administration itself has many such opponents; and the President himself seems "intellectually divided" in this and related areas.

The last sentence would be clearer written as: The Obama administration itself includes many such opponents; and the President himself seems "intellectually divided" in this and related areas.

[ODB]

JMM thank you for the welcome back, been spending more time away then home and although not posting have continued to sneak in some reading.

I have kept myself abreast of the targeting of US citizens since the Al-Awlaki strike in 2011. In all honesty, I remain torn on the issue as executed today, simply due to my personal beliefs as a US citizen. I understand the need to counter and eliminate targets, which threaten the nation and/or the nation's interests. I also understand the abuses of power throughout history and thus my dilemma regarding the current processes. Hopefully, some of the legal professionals here within the SWC can correct the errors in my ways.

I see the issue regarding the targeting of US citizens as a simple solution handled through the judicial system with a change in trials in absentia. As I understand the Fifth, Sixth and Fourteenth Amendments to The United States Constitution guarantee the right of a criminal defendant to be present at his own trial. In 1993, The Supreme Court ruled that a defendant cannot be tried in absentia if he is not present at the beginning of the trial. While the constitutionality of this legal practice is open to debate, trial in absentia is permitted under certain circumstances. The defendant has the right to waive his right to be present at his own trial and a defendant can be ejected from the courtroom for continuing to participate in disruptive behavior. A defendant can give his written consent for a trial involving a misdemeanor to continue in his absence.

Understanding the limitations concerning trials in absentia and the following causes for loss of US citizenship.

U.S. citizens are subject to loss of citizenship if they perform certain acts voluntarily and with the intention to relinquish U.S. citizenship. These acts include:

1. Obtaining naturalization in a foreign state;
2. Taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions;
3. Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state;
4. Accepting employment with a foreign government if (a) one has the nationality of that foreign state or (b) a declaration of allegiance is required in accepting the position;
5. Formally renouncing U.S. citizenship before a U.S. consular officer outside the United States;
6. Formally renouncing U.S. citizenship within the U.S. (but only "in time of war");
7. Conviction for an act of treason.

In my simplistic view of the issue, the simple solution is to allow the US citizen the ability to defend themselves in court. If the individual does not appear for the trial, hold the trial in absentia to determine if the individual should be stripped of their US citizenship. If the court finds sufficient evidence to remove the individual's citizenship status, then the individual can be lethally targeted. Who knows, maybe the behind closed doors justification resemble something akin to this thought process. This might just be this "Merican's way of justifying the targeting.

I cannot help but notice how terrorism has become the new McCarthyism, might have to start a thread on the resemblance when I have time to do my due research.

[jmm99]

ODB: What follows is my opinion.

1. Targeted killings (whether of US citizens or non-US citizens) can only be justified under the Laws of War (aka Law of Armed Conflict or International Humanitarian Law), to include the Laws of Neutrality as a subset of the Laws of War (which require a 'war" or "armed conflict"). If the civilian legal regimes (#2 below) are only applicable and the Laws of War are excluded, targeted killings are murder, pure and simple. NB: they cannot be "war crimes" or "war atrocities" if there is no "war" ("armed conflict"). The reason for juxtaposing "war" ("armed conflict") is that Hague uses "war" and Geneva "armed conflict".

2. If civilian law applies (which could be International Human Rights Law, or the constitutional and criminal laws of the foreign country, or US constitutional and criminal laws applied in the foreign country - which might be problematic for good reasons), those who pursue "terrorists" (aka transnational violent non-state actors) must act as law enforcement officers with limited rights to defend themselves and others. The "terr" can only be arrested and tried - perhaps only in the foreign country, unless extradition is allowed.

3. Back to the Laws of War and the JCS Standing Rules of Engagement, which explicitly permit an armed force to be declared hostile by the President or his delegated representative; and, once that declaration is made, the combatant members of the hostile force can be killed because of their status - any time, any place, armed or unarmed, threatening or not. The 2001 AUMF is Congressional authorization to the same effect; but also allowing civilian law enforcement as an alternative path.

I rely on #1 and #3 to justify my conclusion that targeted killings are justified within the bounds of the "hunting licenses" granted. I see the problems coming not from the legal framework defining the parameters, but from the wisdom of the people who are running that process. A similar type of problem shows up even more clearly in NSA metadata collection - the "powers that are" accepted full bore the statutory "maximization process" (how much data you can initially collect), but ignored the statutory "minimization process" (how much data you can retain).

Your choice to employ only #2, the civilian law enforcement process, is really a political choice - hence, it can't be "right" or "wrong" based on legal opinions. It would be the only choice if there were no "war" ("armed conflict") going on.

I happen to believe a "war" ("armed conflict") is going on; and that, even if we choose #2 civilian law enforcement as the solution in a large percentage of situations, some situations will involve "war" ("armed conflict"). Thus, #1 and #3 will come into play.

A couple of notes: Loss of American citizenship is a red herring; and I believe trials in absentia are a terrible idea. However, there is little point in discussing those issues. If the Laws of War cannot fit into your equation, the gap between where you are and I am is simply too wide to bridge. The position of many (most, all ?) of our Euro allies is to reject the Laws of War and Targeted Killings; as do a number of Americans. So, you are far from being alone in what seems your position. The gap is not legal (everyone in the debate knows what the choices in laws are), it is political; just as the so-called "McCarthy Era" was political, very political.

Regards

Mike

[Firn]

I won't step into the legal realm itself but looking from the outside I just can't shake off the impression that the whole US law sphere regarding conflict has a lot in common with the old joke about the accountant. Asked what two plus two equals he answers, after closing the door, "What do you want it to equal?"

To correctly guess the outcome of the official internal US legal opinion regarding the torture, espionage and the killing of citiziens the famous dictum of the Melian dialogue seems to be often a better guide then the legal framework itself. In short "the strong do as they can and the weak suffer what they must" tends to be a pretty good heuristic.

So if a certain outcome has been seen as expedient for issues right at hand it was highly probable that the legal aspects were at the least strechted very much to meet the political intent and in other cases likely outright broken.

Now this is nothing new under the sun, perhaps apart from the fact just how far the US has gone trying to cover herself with the garb of law. Sadly, with a cloth as thinly streched and partly torn she* looks pretty naked...


*her intent fits generally better. The beauty of the mental picture of a partly naked US depends on her beauty, and although there is plenty of it some areas have rather little.

[JMA]

AP broke this story on Monday, when Lawfare's Jack Goldsmith filed a very short comment, U.S. Citizen Possibly Targeted for Drone Attack, with a short snip from the AP story:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Then what are they discussing?

Do it.

[slapout9]

The "Spirit" of the law was being intentionally violated bye the so called American citizen when he left the country. Flight to avoid prosecution by Law Enforcement on purpose....a form of legal sabotage and for this reason he has forfeited his rights of citizenship protection and is nothing but a roaming enemy that should be hunted down and shot by any means necessary.


As I have said before this is a very important concept, especially when dealing with international commando type terrorist. We need to follow the Spirit of the law and not be mesmerized by the "Letter" of the law.

[jmm99]

Is your message really intent on conflating "torture, espionage and the killing of citizens" into a legal opinion (singular):

... the official internal US legal opinion regarding the torture, espionage and the killing of citizens ...

and, by necessary implication, that a proponent of the "killing of citizens" (as I certainly am re: targeted killing) is also a proponent of "espionage" (of citizens ?; does "of citizens" also modify "espionage" and "torture") and a proponent of "torture" (of citizens ?) ?

If so, I'd suggest your message is simplistically attacking a strawman; and doesn't respond to anything I've written about either politics/policies or the legal structures that have developed from politics/policies. To make it very clear, politics/policies drive the resultant law - not the other way around.

This assertion:

... it was highly probable that the legal aspects were at the least stretched very much to meet the political intent and in other cases likely outright broken ...

would have to be proved with specific examples - which your message obviously does not do.

As a counter-example, I'd cite John Yoo's memos (both international and domestic). His memos on "enhanced interrogation" are but one area addressed by his Unitary Executive theory, which was fully developed and totally coherent long before he wrote memos to the White House after 9/11. I've mentioned John Yoo in some 24 posts - the last re: the only US citizen (Awlaki) to be targeted and killed, (Here's a "Pair of Aces" for you ....; Yoo being one and Andy Worthington the other; I was being a bit sarcastic) [Yoo's link in my post still works after 3 years; Andy's doesn't because it's been archived here].

It so happened that the politics of the Bush administration leaned to development of something akin to a "unitary executive" theory - i.e., a very strong president with unitary powers (free of congressional constraints) across a wide range of international and domestic concerns. That developing political theory (eventually driving policies) was espoused most strongly by V.P. Cheney and David Addington of his office. Since John Yoo's legal theories were already well developed, it was a simple matter to bring them in as "the laws" for those policies.

Obviously, there is no singular "the law" - unless one believes in and preaches the message of the One Omnipresent God of Laws in the Sky. My perception is that the "Omnipresence in the Sky" is far less an American thing than it is a European thing. It does allow Europeans a certain pomposity in lecturing Americans on what "the law" is, and how the Americans are breaking it.

So, nothing was "stretched" or "broken" in the Yoo cases, unless it be the politics that led to the policies, that drove adoption of an existing body of legal theory. But, politics is indeed Thucydidean - "the strong do as they can and the weak suffer what they must." In politics, you either win ("the strong") or lose ("the weak"); thereby avoiding the tedious arguments based on opinions (some coherent; some not) which swirl in circles until they flush down the drain - because a win-lose process does not exist to resolve them.

Moving back to my conversation with ODB, I see at least four different political situations that generate yes, no and "duh" answers, as exemplified in the Gallup and Fox News polls of March 2013 (the Fox poll was by two independent pollsters and was not of Fox viewers - the Gallup & Fox methodologies were the same; but, Gallup came after Rand Paul's filibuster on drones, which I believe changed the politics in Rand's favor):

Do you approve or disapprove of the United States using unmanned aircraft called drones ...

To kill a suspected terrorist in a foreign country?

Yes - 74 Fox; 65 Gal
No - 22 Fox; 28 Gal
Duh - 4 Fox; 8 Gal

To kill a suspected terrorist in a foreign country if the suspect is a U.S. citizen?

Yes - 60 Fox; 41 Gal
No - 36 Fox; 52 Gal
Duh - 5 Fox; 7 Gal

To kill a suspected foreign terrorist on U.S. soil?

Yes - 56 Fox; 25 Gal
No - 40 Fox; 66 Gal
Duh - 4 Fox; 9 Gal

To kill a suspected terrorist who is a U.S. citizen on U.S. soil?

Yes - 45 Fox; 13 Gal
No - 50 Fox; 79 Gal
Duh - 5 Fox; 7 Gal

It would not be a problem to find, for each of these 12 political viewpoints (including the "Duhs"), already written legal theories which would carry out the politics and policies polled.

On the political issue that divides ODB and me ("To kill a suspected terrorist in a foreign country if the suspect is a U.S. citizen?"), the year-ago polls are tight; and I'd say too close to call absent a real vote.

I don't know where ODB stands on the first issue ("To kill a suspected terrorist in a foreign country?"; i.e., if not a US citizen). I'm an obvious "Yes".

There may well be newer polls on these "political questions" - which is exactly what the courts have called them.

Regards

Mike

[jmm99]

Then what are they discussing?

Not being a fly on that wall, I dunno.

I'd suspect that some of the Obama appointees, besides wringing their hands, are advancing the same political arguments (reinforced by more current legal theories already in print) that the "international community" advanced in the 1970s for not attacking "terrs" in Zambia and Mozambique.

I'd suspect another group is making the political argument that allowing sanctuaries will cost us the "war" - to which, the first group will say "what war".

Finally, a third group will be looking at the poll numbers (e.g., Gallup and Fox); and saying "Duh".

Regards

Mike