The Rules - Engaging HVTs & OBL

[jmm99]

go astray when they demand a law enforcement approach against these violent non-state actors. These VNSAs are waging unconventional warfare against the US. They sometimes do that directly (as in 9/11), but often through local "franchises" or "non-franchised insurgencies" (your enemy is my enemy, etc).

Their practice does differ from the unconventional warfare doctrine of "FM31-21" in that they do not (at present) have conventional forces which the irregular forces support and with which they seek a juncture. Thus, because these VNSAs are not a state, are not regular forces, and do not occupy defined geographic spaces, some folks (e.g., O'Connell and Worthington) have a very difficult time considering these VNSAs as being involved in an armed conflict.

In fact, they may see associated groups (such as the Taliban, which has some aspects of a "state", has somewhat organized forces and does occupy defined spaces) as the essential parties to an "armed conflict". The conflict to them is then limited geographically to territory contested by the associated group. I think that is focusing too much on the horse, and not on the jockey (AQ); but, in any event, law enforcement methodology is demanded with respect to the jockey (AQ).

Now, law enforcement is part of a larger system - the criminal justice system. That system includes as integral parts not only law enforcement officers, but also prosecutors and defenders - and courts (with or without juries) as the ultimate decision-makers of what is "legal" or "illegal". In the US at the Federal level, Article III is the constitutional basis.

If an "armed conflict" exists, the criminal justice system does not generally play a role. E.g., Articles I and II provide the basis for Executive and Congressional power over armed conflicts; and generally the Article III bodies have recognized their lack of power in that area.

Some have argued for sets of rules that would extend the law enforcement methodology beyond its normal scope - so as to allow targeted killing under limited circumstances. Personally I think that would be a disaster; and I would much prefer to see a clear line drawn between law enforcement ("Rule of Law") and armed conflict ("Laws of War").

Mike Hayden said it well a few weeks ago, in a debate I reported here, Resolved: It's Time to End the War on Terror - from the transcript, p.11:

Michael Hayden:

Let me give you -- thank you. Let me give you a slightly different description of that event. A heavily armed agent of the United States government was in a room with an unarmed man who was under indictment in the United States judicial system and was offering no significant resistance to the heavily armed agent of the United States government, and that heavily armed agent of the United States government killed him.

If you do not think we are at war, there are some very troubling definitions that you might want to attach to that act. That's the kind of authority we have perfectly lawful -- and no way am I suggesting anyone acted inappropriately. We acted perfectly lawfully because we are a nation at war and generally recognized as such.

You don't want to take those tools off the table while there are terrorists out there.

20:03:01

If you let this tool go, you will be less safe. Okay. If you look at the scope of our constitutional system, the law enforcement approach is designed, if you look at the constitution, the Bill of Rights and the American statutory law, the law enforcement approach is designed to make the government weak because we don't want the government arbitrarily taking away your liberties.

On the other hand, if you look at those sections of the Constitution that deal with armed conflict, they're designed to make the government strong so that it can protect you. You don't want to take that tool off the table. And quite perversely, if you take that tool off the table, you may actually threaten your own civil liberties.

Bear with me. There's a tight connection here. If the options of a nation at war are taken away from your tool kit, you must then rely on the options offered by law enforcement.

20:03:59

If you recall the events in -- on Christmas day a year or two ago, Detroit, Umar Farouk Abdulmutallab, the "Underwear Bomber" -- and he was Mirandized after about 50 minutes of interrogation, and I think everyone recognized that was probably a mistake. We should have interrogated him further.

We had the attorney general talking to the American Congress about legislation that would make Miranda more malleable so that we could interrogate these kinds of people longer in our law enforcement approach.

I don't want to make Miranda more malleable. Miranda defends me. Defends you. Defends your rights. And we're forced to contort the law enforcement approach when we attempt to make it answer and deal with questions it was never designed to deal with. This is one of those questions. Don't take that other tool, "We are a nation of war [sic ! at war]" off the table.

So, I agree with Hayden.

How effective would a law enforcement approach be against our own unconventional warriors if they were waging unconventional warfare against another state ? Posit that our conventional forces cannot be involved (so there is a rough equivalence to AQ's situation).

More later - maybe tonite.

Regards

Mike

[jmm99]

Bill:

I happen to agree with you on this one (surprise ):

from Bill Moore
I personally felt the argument fell short when they argued that Yemen wasn't a battlefied, so therefore the mission was illegal. Whereever we kill terrorists is a battlefield, it isn't confined to a specific geographical region. It seems ludricous to believe that if a terrorist is conducting operations against the U.S. outside of a designated battlespace we can't kill him.

Michael Lewis, Drones and the Boundaries of the Battlefield (Sep 2011) (18 pages), reaches much the same conclusion:

Conclusion

The Air Missile Manual makes it clear that drones are legitimate weapons platforms whose use is effectively governed by current IHL applicable to aerial bombardment. Like other forms of aircraft they may be lawfully used to target enemy forces, whether specifically identifiable individuals or armed formations, if they comply with IHL’s requirements of proportionality, necessity and distinction.

Because drones are only able to operate effectively in permissive environments, the most significant legal challenges facing their development and employment have been based upon where they may be employed. Attempts to apply the strict geographical restrictions that govern the scope of IHL in internal non-international armed conflicts to all non-international armed conflicts, including transnational armed conflicts, threaten to significantly limit the usefulness of drones.

When IHL’s core principles are considered, it becomes clear that the application of strict geographical limitations on IHL’s scope in the context of transnational armed conflicts cannot be defended. The determination of whether the Tadic threshold for an armed conflict is met on the territory of a non-party to the conflict should have no bearing on whether IHL may be applied to the parties to the conflict. In other words, the fact that there is no local violence occurring in Yemen or Somalia should not be used to provide a sanctuary for non-state actors that are involved in an armed conflict with another state.

The answer for how the boundaries of the battlefield and the scope of IHL’s application can be properly determined is found in neutrality law. This is historically how geographical limitations have been imposed upon IHL’s scope in international armed conflicts. It was applied in the aftermath of the 9/11 attacks, with at least tacit international approval, to the situation involving the United States, al Qaeda and Afghanistan. Its application is checked by the consent of the sovereign states involved, making an escalating spiral of violence less, rather than more, likely. And perhaps most importantly, neutrality law’s application to transnational armed conflicts does not lead to the anomalous results that are produced when strict geographical limitations are applied to transnational armed conflicts in which IHL is read to favor its otherwise most disfavored groups.

The bottom line is that the "Laws of War" (IHL to the law profs) follow the participants, who do not fit into the neat little boxes set up for the regular forces of Westphalian states engaged in conventional warfare.

Some of the assertions made in the name of "IHL" are quite amazing. E.g., Lewis cites this (p.8):

Similarly, Mary Ellen O’Connell has claimed that the shooting down of Admiral Yamamoto’s plane over Bougainville by U.S. fighter aircraft during World War II would today be considered illegal because it occurred ―far from [the] battlefield.[40]

40. O‟Connell, The Choice of Law Against Terrorism, 4 Journal of Nat‟l Security Law & Policy 343, 361 (2010).

She actually did say something akin to that in the 2010 article cited by Lewis:

Dean Koh mentioned a case from World War II in which the U.S. set out to kill a named individual far from actual hostilities when it attacked the plane carrying Japanese General Yamamoto, a reputed planner of the Pearl Harbor attack.[93]

93. Koh, The Obama Administration and International Law, supra note 41.

There are several problems with this interpretation. First, Dean Koh did not refer to remote participation. Moreover, many persons killed and detained have had no connection with Afghanistan. Even respecting those who did, the Yamamoto case was not uncontroversial at the time;[94] today it would be in conflict with the basic treaties that form today‘s law on the use of force, namely the 1945 United Nations Charter and the 1949 Geneva Conventions. These treaties provide little or no right to use military force against individuals far from battlefields.

94. Diane Amann relates that at least one of the participants in that attack, U.S. Supreme Court Justice John Paul Stevens, today has doubts as to whether it was lawful. See Diane Marie Amann, John Paul Stevens, Human Rights Judge, 74 FORDHAM L. REV. 1569, 1582-83 (2006).

Not to degrade Justice Stevens' role as a Pearl Harbor traffic analyst (who saw the Yamamoto "shot down" message after the fact, see Bill Barnhart, John Paul Stevens and the U.S. Navy at War); but why try to present him as "one of the participants in that attack."

Talk about indirect "stolen valor"; factually inaccurate argumentation as to WWII; and with respect to the 1945 United Nations Charter and the 1949 Geneva Conventions, an off the wall legal analysis....

And, a material misrepresentation (whether innocent or intentional ?) of Stevens' position. We have that as stated by Thomas Lee to Jeffrey Toobin, After Stevens (2010):

In April, 1943, a coded message came across Stevens’s desk—“one eagle and two sparrows, or something like that,” he said. Stevens knew the transmission meant that an operation based on intelligence from his station had been a success. American aviators had tracked and shot down the airplane of Admiral Isoroku Yamamoto, who was the architect of the Japanese attack on Pearl Harbor and the leader of Axis forces in Midway.

Stevens was a twenty-three-year-old lieutenant, and the mission, essentially a targeted assassination, troubled him. “Even at the time, it seemed to me kind of strange that you had a mission that was intended to kill a particular individual,” he told me. “And it was an individual who was a friend of some of the Navy officers.” (Before the war, Yamamoto had trained with the U.S. Navy and studied at Harvard.)

Ultimately, Stevens concluded that the operation, which was approved by President Roosevelt, was justified, but the moral complexity of such a killing, even in wartime, stayed with him. “It is a little different than your statistics about so many thousands of highway deaths—that doesn’t mean all that much,” he said. “But if somebody you know is killed, you have an entirely different reaction.” The morality of military action became a lifelong preoccupation.

The need to fact check every assertion by the "IHL Intelligensia" makes for a very time-consuming process - especially when they make those assertions with apparent complete certainty.

Regards

Mike

[jmm99]

Rajib Karim's emails with Al-Awlaki were disclosed in Karim's UK criminal case:

:: January 25, 2010 From al-Awlaki to Karim: ''... depending on what your role is and the amount of information you can get your hands on, you might be able to provide us with critical and urgent information and may be able to play a crucial role for the ummah...

''I was pleased when your brother conveyed from you salaams to myself and was excited by hearing your profession. I pray that Allah may grant us a breakthrough through you. As a starter, can you please answer these questions in as much elaboration as possible: can you please specify your role in the airline industry, how much access do you have to airports, what information do you have on the limitations and cracks in present airport security systems, what procedures would travellers from the newly listed countries have to go through, what procedures would a person on a watch list have to go through?''

:: January 29, 2010 From Karim to the ''prof'', alleged to be al-Awlaki: ''It has been three years that I have been living here away from the company of good brothers and spending a good part of my day working with the kuffar. I was also keeping a low profile by hiding my real religious viewpoints, trimming my beard and not getting too involved in the local Muslim community or any Islamic activities. But leading a life like that was really killing me inside, that's why I desperately wanted to make hijrah as I was not seeing any opportunities to do anything in this land...

''I have knowledge about the key people in BA starting from the top management and the key people in BA IT department. I also have knowledge about key IT hardware locations, which if targeted can bring huge disruption to flights and cause BA a major financial loss ... but this would be at the risk of exposing myself as I will have to do that with my own login ID...

''I personally know two brothers, one who works in baggage handling at Heathrow and another who works in airport security. Both are good practising brothers and sympathise towards the cause of the mujahideen and do not slander them. They are of the type who would help with money and moral support but I am not sure if they are at the stage to sacrifice with their lives.''

:: February 13, 2010 From al-Awlaki to Karim: ''Our highest priority is the US. Anything there, even if on a smaller scale compared to what we may do in the UK, would be our choice. So the question is: with the people you have, is it possible to get a package or a person with a package on board a flight heading to the US? If that is not possible, then what ideas do you have that could be set up for the uk?''

:: February 15, 2010 From Karim to his brother, Tehzeeb: ''If it's not a good idea to visit you guys, then I intend to visit BD or USA. If I visit USA, I can check out what their security process is like.''

From Karim to al-Awlaki: ''I have started working on the bros I mentioned on the last letter without mentioning you directly. Alhamdulillah the bros responded better than I expected...

''Like you say, I also agree that US is a better target than UK, but I do not know much about US. I can work with the bros to find out the possibilities of shipping a package to a US-bound plane.''

HT to Thomas Joscelyn, Awlaki's emails to terror plotter show operational role (LWJ, March 2, 2011), who provides more background and discussion.

Draw your own conclusions as to whether Al-Awlaki was simply a cleric exercising his First Amendment rights.

Regards

Mike