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

  1. #281
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    Default The Short Legal Position

    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
    Last edited by jmm99; 02-11-2014 at 05:35 PM.

  2. #282
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    Default Jack Goldsmith on Possible New U.S. Citizen Strike

    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.
    Last edited by jmm99; 02-12-2014 at 12:28 AM.

  3. #283
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    Default The 'Merican in me

    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.
    ODB

    Exchange with an Iraqi soldier during FID:

    Why did you not clear your corner?

    Because we are on a base and it is secure.

  4. #284
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    Default A Bridge Too Far ?

    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
    Last edited by jmm99; 02-12-2014 at 05:57 AM.

  5. #285
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    Default

    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.
    ... "We need officers capable of following systematically the path of logical argument to its conclusion, with disciplined intellect, strong in character and nerve to execute what the intellect dictates"

    General Ludwig Beck (1880-1944);
    Speech at the Kriegsakademie, 1935

  6. #286
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    Quote Originally Posted by jmm99 View Post
    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.

  7. #287
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    Default In My Opnion......

    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.

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    Default Firn:

    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

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    Default Discussing ?

    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

  10. #290
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    @Jmm99: I'm certainly not attacking you or a strawmen of yours. It would be a rather foolish fight to pick and does not bring any good return. Indeed I have a high and healthy respect of legal tradition of the USA even if was not fully founded on the most obviously superior continental heritage.

    In general I tried to make rather forcefully the case that political considerations are often driving the legal ones. The relation does of course also work in the other direction, and both flows, if well-structured and sensible, are integral for the long term stability of modern democracy.

    I think there is a good case US agencies did indeed break US laws with some of it's intelligence gatherings of US citziens and that perceived political necessities and skewed incentives did result in legal opinions which reflected the political will. In this vast campaign the strong, the US government did indeed do what it could, and the weak, the US citizien, suffered what it had to.

    I will rest the rest for now and hope that the interesting discussion will go on.
    ... "We need officers capable of following systematically the path of logical argument to its conclusion, with disciplined intellect, strong in character and nerve to execute what the intellect dictates"

    General Ludwig Beck (1880-1944);
    Speech at the Kriegsakademie, 1935

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    Default Firn:

    OK.

    My view is that politics > policies always govern selection of laws, which usually exist when selected, if not in the final product then as outlines of the final product. That is particularly so in the international law area where the major theories have been kicking back and forth for the last century. However, it also applies where particular legal codification efforts have near-final drafts presented to the legislatures.

    E.g., the Model State Insurance Code and Uniform Commercial Code, both from the 1950s-1960s, where each one had a Michigan Law professor as its principal draftsman. The arguments before the legislatures had very little to do with how great the language of these laws was; but rather what were the policies underlying the laws that would make the legislative constituents happy and help the legislators' re-elections. Or, so I was told.

    The influence of academics on laws is probably greater in the European Code Law states than in the US, where academic legal works are far down the totem pole as precedents before the courts. Congress traditionally calls legal academics to testify, but their legal opinions are usually well known ahead of time and each of them is usually called by a legislator who has a compatible political view.

    Assessing Damage, Urging Action - Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights (2009; An initiative of the International Commission of Jurists), seems to me a good example of an academic work that appears to have had impact in Europe, but virtually none here (nor, do I believe that it should have been received positively here).

    To see the arguments by the "eminent jurists" (political and legal) against the US, go to Chapter Three - The legality and consequences of a “war on terror”:

    1. Introduction

    The previous chapter discussed the many parallels between current and past counter-terrorist efforts. The contemporary era of counter-terrorism does, however, differ from all past experiences in at least one way: that is, the legal characterization of this phase as a “war on terror”. If this characterisation were merely rhetorical – akin to the “war on drugs”, “war on crime”, “war on poverty” – there would be little point in the Panel devoting much attention to it.

    This is not however the case. The outgoing US administration uses the war analogy in its formal legal sense, and having proclaimed a “war” on terror, argues that international humanitarian law (the laws of war) be applied. The Panel takes the view that the “war paradigm” is misconceived, and has been applied in ways that have violated core principles of international humanitarian and human rights law.

    It is hoped that the incoming US administration will immediately, and publicly, renounce this characterisation. Whilst the outgoing US administration was understandably aggrieved at the horrendous attack of 9/11, it is possible to see, especially with hindsight, that many of its responses to the terrible tragedy were ill-advised. Accordingly, the Panel decided that it was important to set out its view as to why the conflation of acts of terrorism with acts of war was legally and conceptually flawed.

    The war paradigm has done immense damage in the last seven years to a previously shared international consensus on the legal framework underlying both human rights and humanitarian law. This consensus needs to be re-created and reasserted. Moreover, the use of the war paradigm has given a spurious justification to a range of serious human rights and humanitarian law violations, and remedies and reparation should follow.

    The following chapter will in turn examine: when and why the term “war on terror” came into common usage; the conflation of two legal regimes; why the war paradigm lacks a credible legal basis; and the adverse human rights consequences that have arisen in applying the war paradigm – both for the law and the persons affected.
    This report, among a number of other major American disconnects with Europe, convinced me that the gap between the US and Europe was and is wide and widening; and that we are wasting our time trying to smooth over the differences. The "eminent jurists" did such a good hand wringing job about "the horrendous attack of 9/11" and that "terrible tragedy". It's a pity that they could not understand that the American people saw 9/11 as an Act of War against the US, comparable to Pearl Harbor.

    A prosecutor in 2009, intent on prosecuting, could have drafted charges against many people in the prior administration. Fortunately, greater wisdom prevailed and this country was not ripped apart - as it surely would have been if those charges had been brought. Again, I saw many in Europe shouting that charges should be brought; and from that, I concluded that many Europeans actually wanted the result that those charges would have brought - demise of the US.

    Instead, with control of the White House, the Senate and the House, the Obama administration passed more of the Democratic program in 8 months than the Clinton administration did in 8 years. While I didn't agree politically with much of what was passed in those 8 months, the American citizens who voted for the Democrats in 2008 got what they voted for. It was a Thucydidean result, just as the prior elections were - the "strong" are the US citizens who win the election; the "weak" are the US citizens who lose the election. The next election may well change the "weak" into the "strong".

    Regards

    Mike

  12. #292
    Council Member ODB's Avatar
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    Default Furthering my education

    First, thank you to JMM for educating me on the laws and legal aspect of the debate as I am not well versed in the legalities. My stance on killing a foreign terrorist in a foreign country is multifaceted:

    1. What is the intelligence value gained by conducting a kill/capture operation versus intelligence lost by conducting a drone strike versus a clandestine/covert operation versus continuing to gather intelligence if left alone (this has to be debated extensively based upon potential of future lives lost)?

    2. What is the risk versus gain in conducting an operation versus a drone strike? Is the gain worth losing lives over?

    3. What are the political sensitivities to conducting an operation versus a drone strike versus other clandestine/covert means?

    4. What are the 2nd and 3rd order effects associated with the aforementioned operations?

    Post education regarding the drone strikes I have learned my viewpoint is more towards the policies and decisions associated with the drone strikes of US citizens not the legalities surrounding the drone strikes. I take issue when the decision is made to kill a US citizen in a foreign country with a drone strike. In turn, another decision is made to conduct an operation to capture a non US citizen (Nazih Abdul-Hamed Nabih al-Ruqai'I) in a foreign country (Libya) in order to bring the individual to the US for trial.

    Taking into account the political workings among countries as to what kind of operations are "authorized", this latest operation in Libya has Libya's Prime Minister Ali Zeidan calling al Libi's capture a "kidnapping" and demanding that U.S. authorities "provide an explanation" for the raid.

    I do not intend nor want this thread to be hijacked with what will follow, just want to express why I have the issue I do with the policies and/or decisions regarding drone strikes against US citizens. The willingness to risk American lives to capture a foreign terrorist to bring him to America in order to afford him the same legal rights in a court of law in America as an American citizen is not afforded to an alleged terrorist who is US citizen in a foreign county. (I understand the trial process remains in a messy debate, hence not wanting to hijack the thread.)
    ODB

    Exchange with an Iraqi soldier during FID:

    Why did you not clear your corner?

    Because we are on a base and it is secure.

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    Default Furthering education is a two way street; and

    folks like you, ODB, have furthered my education in ways you may or may not imagine. That's my backhanded way of saying, thank you.

    On to the task at hand; it may or may not surprise you, but what you say here:

    My stance on killing a foreign terrorist in a foreign country is multifaceted:

    1. What is the intelligence value gained by conducting a kill/capture operation versus intelligence lost by conducting a drone strike versus a clandestine/covert operation versus continuing to gather intelligence if left alone (this has to be debated extensively based upon potential of future lives lost)?

    2. What is the risk versus gain in conducting an operation versus a drone strike? Is the gain worth losing lives over?

    3. What are the political sensitivities to conducting an operation versus a drone strike versus other clandestine/covert means?

    4. What are the 2nd and 3rd order effects associated with the aforementioned operations?
    are also my concerns with, what I'd term, the "wisdom" of the operations (direct actions) or drone strikes.

    In formulating my legal position (as opposed to my "wisdom" position) on these and any other military operations (to include T10-T50 joint operations), I have intentionally built in as much leeway as possible into the rules of engagement. My purpose there is a simple one: to keep legal harassment off of our people who are sent (by me and by every other US citizen) to bad places, and then into worse situations. So, my legal framework always has, as its primary purpose, the protection of our people who are sent into harm's way.

    I realize that granting a broad hunting license can be used badly in the wrong hands. From my analysis of the past, the wrong hands have usually been with civilian leadership or with military types that don't have to execute the missions. The solution is to get rid of those "dereliction of duty" types, and not restrict the rules of engagement.

    I do understand your two points based on the absurdity and hypocrisy of capturing a non-US citizen for purposes of trying him here (with all the rights given US citizens), especially given the vagueries of those trials -

    Failed Somali pirate prosecution fuels terror trial fears

    The failed prosecution of an alleged Somali pirate — and the fact that that failure could leave him living freely, and permanently, inside U.S. borders — is highlighting anew the risks of trying terror suspects in American courts.

    Just a few weeks ago, Ali Mohamed Ali was facing the possibility of a mandatory life sentence in a 2008 shipjacking off the coast of Yemen — an incident much like the one dramatized in the film “Captain Phillips.” Now, the Somali native is in immigration detention in Virginia and seeking permanent asylum in the United States.

    Ali, who was accused of piracy for acting as a translator and negotiator for a crew of pirates, was partially acquitted by a jury in November after a trial in Washington. Prosecutors initially vowed a retrial but decided last month to drop the rest of the case against him.
    ...
    In 2009, Obama ordered Ahmed Ghailani — a suspected plotter in the deadly attacks on U.S. embassies in Africa in 1998 — flown from Guantánamo Bay to New York to stand trial in federal court. In November 2010, a jury there convicted him on a single charge of conspiracy to destroy U.S. property and buildings, while acquitting him of the 284 other charges he faced. He ultimately received a life sentence. ...
    and, on the other hand, deciding on a targeted killing of a US citizen in the same country (some speculate that Libya is also the geographic target in the present case).

    But, the reason for the USG right hand doing one thing, and the USG left hand another, is that the two hands are not connected to the same brain.

    Here's the way I'd look at the two "Yemen" cases - positing that a US citizen and a non-US citizen are involved in an "AQ" group as combatants. We have a host of Gitmo habeas cases, some up to SCOTUS, that define "enemy combatants". Is that enough to order "shoot" ? It is, if one looks solely at my legal position (the broad hunting license); but, I never said that the scope of inquiry should end there. We have to travel from what is legally permissible to what is practically wise as the targeted killing process winds to a decision - shoot or don't shoot.

    There we get into your "wisdom" factors:

    1. What is the intelligence value gained by conducting a kill/capture operation versus intelligence lost by conducting a drone strike versus a clandestine/covert operation versus continuing to gather intelligence if left alone (this has to be debated extensively based upon potential of future lives lost)?

    2. What is the risk versus gain in conducting an operation versus a drone strike? Is the gain worth losing lives over?

    3. What are the political sensitivities to conducting an operation versus a drone strike versus other clandestine/covert means?

    4. What are the 2nd and 3rd order effects associated with the aforementioned operations?

    Those factors would have to be assessed for each case. Reasonable people could disagree on the final decision, without either of them being a war criminal; although one of them might be a stupid SOB for the result reached.

    I wouldn't distinguish as such between the US citizen and the non-US citizen in this process (although I'd probably be harsher with the US citizen as a turncoat vs the non-US citizen who is not).

    IF all of the facts are same with these two fellows (i.e., all your questions are answered the same for both), why should the US citizen get a reprieve from being targeted for killing, while the non-US citizen does not ? I'm not asking for legal reasoning, just common sense. Two answers seem coherent to me: (1) Both should be subject to the targeted killing process (though either or both may be reprieved by individual factors during that process); or (2) Neither should be subject to the targeted killing process.

    What am I missing about a reprieve for the American, but not for the Yemani, who are in exactly the same boat ?

    Regards

    Mike
    Last edited by jmm99; 02-14-2014 at 07:34 AM.

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    Default Worth a read...

    PhD thesis from the University of Arizona by Ian Shaw, "The Spatial Politics of Drone Warfare".

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    Default Who is the American ... ?

    the U.S. may be targeting overseas (HT to Lawfare's Ben Wittes for the NYT link); NYT, U.S. Militant, Hidden, Spurs Drone Debate (by MARK MAZZETTI and ERIC SCHMITT, FEB. 28, 2014):

    WASHINGTON — He is known as Abdullah al-Shami, an Arabic name meaning Abdullah the Syrian. But his nom de guerre masks a reality: He was born in the United States, and the United States is now deciding whether to kill him.

    Mr. Shami, a militant who American officials say is living in the barren mountains of northwestern Pakistan, is at the center of a debate inside the government over whether President Obama should once again take the extraordinary step of authorizing the killing of an American citizen overseas.

    It is a debate that encapsulates some of the thorniest questions raised by the targeted killing program that Mr. Obama has embraced as president: under what circumstances the government may kill American citizens without a trial, whether the battered leadership of Al Qaeda in Pakistan still poses an imminent threat to Americans, and whether the C.I.A. or the Pentagon ought to be the dominant agency running America’s secret wars.

    Interviews with American officials and outside terrorism experts sketch only the most impressionistic portraits of Mr. Shami.

    Born in the United States, possibly in Texas, he moved with his family to the Middle East when he was a toddler. ... (more in the article)
    This "toddler-citizen" brings me back to my basic, non-legalistic question: why should this "American citizen" (by technicality) get a pass, whereas his Pakistani brother in arms (both growing up in same village and culture, and following the same AQ path) gets a hit ?

    IMO: Either both are targetable, or neither are targetable.

    Regards

    Mike

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    Default UK Drones

    The British House of Commons Select Committee on Defence published on the 25th March 2014, a report on drones, sorry they refer to 'Remote Control: Remotely Piloted Air Systems - current and future UK use'. I have not read it.

    Link:http://www.publications.parliament.u.../772/77202.htm

    Professor Paul Rogers has a very short commentary, to say the least he is not impressed:
    A key role of a parliamentary committee is to hold an executive and its ministries up to independent scrutiny on behalf of parliament. In relation to armed-drones (or to use the correct language, “remotely piloted air systems”) in Afghanistan, the defence committee has a long way to go.
    Link:http://www.opendemocracy.net/paul-rogers/drone-evasion?

    The only comment by a reader is succinct too:
    So Paul, what SHOULD the UK have done? Should we have replaced drone coverage with thousands of soldiers?
    davidbfpo

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    Default

    David here is the key finding:

    Conclusions

    21. We consider that it is of vital importance that a clear distinction be drawn between the actions of UK Armed Forces operating remotely piloted air systems in Afghanistan and those of other States elsewhere. On the basis of the evidence we have received we are satisfied that UK remotely piloted air system operations comply fully with international law.

    Quote Originally Posted by davidbfpo View Post
    The British House of Commons Select Committee on Defence published on the 25th March 2014, a report on drones, sorry they refer to 'Remote Control: Remotely Piloted Air Systems - current and future UK use'. I have not read it.

    Link:http://www.publications.parliament.u.../772/77202.htm

    Professor Paul Rogers has a very short commentary, to say the least he is not impressed:

    Link:http://www.opendemocracy.net/paul-rogers/drone-evasion?

    The only comment by a reader is succinct too:

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    Default Landpower Update: Strategies – Drones, Visionaries, and Political Development

    Landpower Update: Strategies – Drones, Visionaries, and Political Development

    Entry Excerpt:



    --------
    Read the full post and make any comments at the SWJ Blog.
    This forum is a feed only and is closed to user comments.

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    Default The Drone War in Yemen

    The Drone War in Yemen

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    Default Not US-UK drones, Turkey's

    Hat tip to WoTR. A rare commentary on a regional user of drones, with Chines, German and Israeli help:http://warontherocks.com/2014/05/the...urkeys-drones/
    davidbfpo

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