The Rules - Engaging HVTs & OBL

[jmm99]

The full text of AG Holder's speech at Northwestern Law is here, with Bobby Chesney's, Holder on Targeted Strikes: The Key Passages, with Commentary (both HT to Lawfare).

The larger portion of the speech (about 2/3rds) deals with the options of military detention, trial in Federal court and trial before military commission - see related threads, The Rules - Detaining HVTs and Others and Crimes, War Crimes and the War on Terror, for my two cents (which is similar in result to that reached by AG Holder).

The portion dealing with targeted strikes begins with AG Holder's exposition of the duty "... to defend the United States through the appropriate and lawful use of lethal force."

This principle has long been established under both U.S. and international law. In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.

Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want. International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

AG Holder's analysis follows an almost "pure" Laws of War approach (with which I agree), except for the unfortunate use of the terms "in self defense" and "an imminent threat of violent attack" (I don't agree).

Why so ? What follows is my logic.

If (as AG Holder posits) the rules of conventional warfare transfer to the unconventional warfare being waged by AQ (directly or via an associated force), then a combatant member of AQ (or that associated force) may be killed or captured at any time and at any place, even though that combatant member is not at that time presenting an "imminent threat of violent attack".

The ROE in that situation is based on status (the person's enemy combatant status), which extends the always in effect SROE based on defense of self and others in the face of the target's conduct (a hostile act or imminent hostile threat). AG Holder's subordinates have argued that status rule succcessfully in a number of DC District and Circuit habeas cases.

Why did the AG not take that approach ? I don't have ESP, but here is my brief analysis.

The concept of an "imminent threat of violent attack" is valid in situations of personal or unit self defense. The same concept is valid in situations of national self defense - as stated by the AG in the first paragraph quoted above: "The Constitution empowers the President to protect the nation from any imminent threat of violent attack." The devil is in what is meant by "imminent" in these self defense siuations - and what "standard of proof" is required of the defender.

My inference (sans ESP) is that the AG and the WH have not been and still are not really comfortable with applying in full the Laws of War in this situation of unconventional warfare.

I've emphasized AG Holder's apparent conflation of the Laws of War and Rule of Law because Bobby Chesney does not mention the point in his analysis - see roughly the first 40% of his commentary.

(cont. in part 2)