High Value Target HVT / Political Assassination

[Odysseus]

Brothers, I just registered/joined this forum, as this topic's of great interest to me, and I stumbled onto it this evening. I see some are contemplating a paper on the topic. Check out the following Wikipedia site: http://en.wikipedia.org/wiki/Manhunt_(military) -- lots of source material on targeted killing/HVT ops/manhunting/F3EA gathered in one place, with links where available. Think you'll find the sources and references most useful in this discussion. Also recommend Bill Roggio's "The Long War Journal." Bill posts some pretty up-to-date info, and analysis of "overseas contingency operations" (to use the current vernacular) at http://www.longwarjournal.org/

Martyrdom... is the only way in which a man can become famous without ability. -- George Bernard Shaw

[jmm99]

From time to time, targeted killings (HVTs) have been discussed here and elsewhere. So far as current operations are concerned, the topic is an OpSec mantrap. I've looked at it generally from a legal standpoint. Basically, legality comes down to whether the Laws of War apply and the HVT can be considered a combatant of a power in an armed conflict (kill anytime, anyplace); or whether some form of Law Enforcement rules apply.

I somehow missed downloading the 2009 Crawford JSOU article which Ted posted a month ago - so thanks for the Wiki link reminder. Another decent JSOU article is 2007 Turbiville, JSOU Report 07-6 Hunting Leadership Targets, linked above a couple of years ago.

[OccamsRazor]

IISS wrote a considerably interesting article concerning targeted killing in Pakistan. They focused on how the Obama administration is maintaining the practice (there were 36 unmanned aerial vehicle attacks in 2008, and 20 in the first 8 months of 2009), and that the administration is using it as a significant element of their way forward - "Bureaucratically, the Obama administration has already set the table for adopting this strategy: for FY 2010, it has requested $79.7 million for Hellfire missiles and $489,4m for 34 Reapers, nearly doubling the 2009 number."

The most interesting part of the article, although it didn't frame it as such, is its application to just war theory and international humanitarian law.

"On this issue, the laws of armed conflict broadly apply, and they require that the use of military force be necessary, as a matter of self-defense, to eliminate a genuine threat and that it be reasonably proportionate to that threat."

As such, it is possible that targeted killing, coupled with the amount of civilian collateral damage that typically follows a strike, might be politically counter-productive, especially since Obama has heavily emphasized has he prefers law enforcement and due process as tools to combat radical Islam, vice military force. Reaching into Pakistani outlands for a strike is one thing, but if strikes reach deeper into the more developed areas of the country (where there is greater culture of safety and governmental protection, and also a higher risk of civilian casualties) there will be a Pakistani outrage of a directly greater proportion. Protests of the United States violating the sovereignty of another nuclear power would seem inevitable.

The flip side, I think, is that Article 4 of the Geneva Convention essentially says that using civilians as a shield (the prevalent reason for collateral damage resulting from targeted killing) cannot immunize legitimate military targets from attacks, which gives the administration some breathing room.

The conclusion of the article is the the Obama administration should take steps to legitimize (by providing transparent procedural oversight) the targeted killing process, as a pre-emptive move to preclude vast international disapproval (perhaps a Gitmo like situation).

Great discussion and information in this thread - I'm looking to write a paper in this area as well.

[jmm99]

You could write a book on this quagmire - targeted killiing of HVTs - because whatever doctrine is evolved cuts across so many areas. Also, so far as current operations are concerned, we would create an OpSec mantrap by delving into them on a public forum.

We could deal with them on a futuristic basis, using open-source examples and existing legal decisions as our cannon fodder for whatever doctrines might be devloped.

Like all applications (e.g., ROEs, RUFs, etc.) of the Laws of Armed Conflict, we have three inputs:

1. Political (including Diplomatic) Considerations.

2. Military Operational Considerations.

3. Legal Considerations (which as much as possible should be driven by the political and military considerations - IMO).

In the area of Transnational Violent Non-State Actors (TVNSAs), e.g., AQ, we have to deal with classification of those who may be hit by the targeted strike - in LOAC terms, definition, distinction, and the concomitant concepts of military need and proportionality. The basic classifications:

1. TVNSA combatants.

2. TVNSA non-combatants.

3. Civilians (not TVNSA).

All of this is merely a subtopic of the more general class of "irregular combatants", their supporting infrastructures and auxilliaries, and the poor ba$tards among whom the "irregulars" hide. Cf., Phoenix program in Vietnam.

Geographic location of the target also enters into the picture:

1. Target within the international boundaries of the Attacking Nation (some interesting questions if a TVNSA combatant is inside the US).

2. Target within territory occupied by the AN.

3. Target within nation where AN is present under SOFA, FID, SFA, etc..

4. Target within nation which consents (overtly or covertly) to AN attack.

5. Target within nation which does not consent to AN attack (issues re: combatants using "right of passage" through a neutral nation; e.g., Laos and Cambodia during Indochina II - 1959-1975).

Further important points are whether the AUMF (Authorization to Use Military Force) properly defines the TVNSA and its members; and whether there is a comprehensive legislative and executive branch schema defining and providing distinction between TVNSA combatants, TVNSA non-combatants and civilians.

Hey Bill Moore, if you happen to read this, would this be a good place to discuss more fully the "irregular combatant" in all the political, miilitary and legal aspects that should apply in the real world ?

Regards

Mike

[jmm99]

This article primarily addresses the Political (including Diplomatic) Considerations, with lesser emphasis on the Military Considerations. It does address Legal Considerations to some extent (pp.11-14 pdf).

Here are some excerpts - the first dealing with the "lawyerly consensus":

Lawyers by consensus regard transnational terrorism as a transgression falling uneasily between the cracks of traditional criminal law and the customary law of armed conflict, and targeted killing as a punitive remedy falling just as discomfitingly between the cracks of those two legal regimes as well as international humanitarian law. For basically pragmatic and prudential reasons, they are generally willing to accept that targeted killing is not tantamount to government-sanctioned political assassination, which has run counter to US policy since 1976 (In that year President Gerald Ford issued Executive Order 11905 barring assassination, after revelations of CIA attempts to assassinate several heads of state, notably Cuban leader Fidel Castro.[15]) They also concede the reality that full due process cannot always be afforded terrorists owing to the immediate threat some pose, and the operational impracticality of subjecting purportedly actionable intelligence to quasi-judicial review in very tight time frames.[16] But a level of indiscriminateness that claims civilian casualties at an order of magnitude higher than legitimate ones is not only dubious in ethical and humanitarian terms, but may also be politically counter-productive. On this issue, the laws of armed conflict broadly apply, and they require that the use of military force be necessary, as a matter of self-defence, to eliminate a genuine threat and that it be reasonably proportionate to that threat.

15 The prohibition has been skirted in a number of instances by means of military ‘leadership strikes’ targeting political leaders, such as the US bombing of Libya in 1986, which clearly targeted Libyan leader Muammar Gadhafi, and the opening salvos of the Iraq War in 2003, which were unabashedly intended to kill Iraqi President Saddam Hussein.

16 See, for example, Kenneth Anderson, ‘Targeted Killing in U.S. Counterterrorism Law and Strategy’, A Working Paper on Counterterrorism and American Statutory Law, a Joint Project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution, 11 May 2009, pp. 9-12; http://cryptome.org/kill-lawyers.pdf.

The last cited "kill-lawyers.pdf" (if literally true) would give a new, modern meaning to Shakespeare and targeted killings.

The fact is that there is no lawyerly consensus. The view represented by the Eminent Jurists Panel excludes the Laws of War from application to TVNSAs. The view of some in the US (e.g., some Fox News pundits) is that the Rule of Law has no place in this arena under any circumstances. Then we have Lawyer Stevenson (JD Boston University) who seeks to meld the Laws of War and Rule of Law in an acceptable fruit salad.

Then there is my view (which is not a datapoint of one) which looks at this arena as one in which concurrent jurisdictions apply in many cases. In short, the Laws of War and the Rule of Law may both apply to the same individual who is a TVNSA combatant. However, while that approach allows two options to be pursued, the courses of action differ depending on whether the military or civilian paths are followed. You can't mix the two systems without failure.

Simon-Stevenson (after some policy discussion) then point out some practical issues:

The legality of targeted killing remains hotly contested between the national governments with the standoff targeting capabilities and humanitarian lawyers who view it as an evasion of at least three legal regimes and a practice which, if endorsed by law, raises the incentive to use force rather than resort to law to a dangerous and uncivilised degree.[18] This debate will take time to resolve. But it seems safe to say now that, based on considerations of criminal law, international humanitarian law and the law of armed conflict, and from a moral as well as a legal standpoint, the only arguably acceptable substitute for due process in the context of targeted killing is a combination of accurate intelligence, assiduous target selection that prioritises minimising civilian casualties, and technically precise targeting. Review processes have been established for both assessing the accuracy of purportedly actionable intelligence and determining the feasibility of targeting a given terrorist with a minimal probability of harming innocent civilians.[19] But the details of the procedures used and the level of scrutiny applied remain essentially secret, and certainly closely held by the US military and the CIA.[20] Moreover, these procedures are reportedly routinely disregarded in the field, where mid-level operational commanders or CIA officers sometimes order drone strikes without higher approval.[21] Finally, fears about the integrity of targeted-killing operations have arisen from disclosures that disreputable private military contractors have been hired to deploy missiles on Predators.[22]

19 See, for example, Eben Kaplan, ‘Backgrounder: Targeted Killings’, Council on Foreign Relations, March 2006, http://www.cfr.org/publication/9627/.

20 See Hina Shamsi, ‘No Longer A Debate About Targeted Killings’, CBS News, 21 July 2009, http://www.cbsnews.com/stories//2009...n5176876.shtml.

21 See David Montero, ‘Use of Drones in Pakistan and Afghanistan: Deadly, but Legal?’, Christian Science Monitor, 12 August 2009, http://www.csmonitor.com/2009/0812/p99s01-duts.html; Rajiv Chandrasekaran, ‘Sole Informant Guided Decision on Afghan Strike’, Washington Post, 4 September 2009m p. A1.

22 See James Risen and Mark Mazzetti, ‘C.I.A. Said to Use Outsiders to Put Bombs on Drones’, New York Times, 20 August 2009.

Note that the authors have reached the conclusion that there is "only [one] arguably acceptable substitute for due process" - "due process" being a Rule of Law concept. The solution therefore is a collage "based on considerations of criminal law, international humanitarian law and the law of armed conflict."

That fruit salad becomes more apparent as we reach the conclusion of the "legal section":

Accordingly, some balance between procedural transparency and substantive secrecy ought to be achievable, and the administration should try to strike it. Greater accountability would tend to engender a more rigorous targeting-review policy and could, perforce, lead to fewer civilian casualties. American analyst Daniel Byman, looking at the Israeli experience, has outlined sensible procedures for assessing the operational validity of targeting particular individuals.[24] There is no obvious reason that a review process similar to the one he has described, involving sequential consideration up the military and civilian chain of command, then a legal review by a Justice Department official, and finally a judgment by a special court modelled on the statutorily created Foreign Intelligence Surveillance Act court, could not be systematically imposed across a wider range of target-selection criteria, including the likelihood of collateral damage.

The bolded text is sheer lunacy - it makes the micro-management of direct actions, which we have seen leading to failures, pale in comparison - "sequential consideration up the military and civilian chain of command, then a legal review by a Justice Department official, and finally a judgment by a special court."

From a legal standpoint, I would hope that a majority of SCOTUS would declare this unconstitutional cuz (1) the matters are assigned to the executive and legislative branches and outside the purview of Article III; (2) except for TVNSA combatants within the US (as defined in the Gitmo cases), the matters are beyond the territorial jurisdiction of Article III courts; and (3) the matters do not constitute a "case or controversy" and constitute advisory opinions. With some more thought, more arguments probably could be developed.

Now, from a military standpoint, could you military types tell me what is wrong with "sequential consideration up the military and civilian chain of command, then a legal review by a Justice Department official" ?

I don't like mixtures of apples and oranges, which the Simon-Stevenson article is (IMO - others may differ).

Regards

Mike

[OccamsRazor]

Great information, and a good analysis of the article.

A couple of notes:

1. I'm only about 5 pages through the 44 of the the "kill-lawyers.pdf", but so far I highly recommend it. It talks (so far) about the narrow confines in which targeted killings operate, and how the US can protect those borders (and perhaps expand them). I think that it somewhat takes the dual jurisdiction approach, at least thus far in the analysis, as it talks about staking out a legal theory both in and outside the realms of IHL. Specifically, there's an interesting section on the role of Congress, and making targeted killing the official international stance of the United States. This leads back into the IISS article.

2. While the proposed review process (especially the role of the special court) largely eviscerates the efficacy of targeted killing (not to mention that the characteristics and limited window of targeted killing distinguish it significantly from FISA), I thought that the article made a good point about making a public case for targeted killing from the US international pulpit. Again, perhaps the review system doesn't need such onerous oversight for the appearance of legitimacy, but I think it would help if the government (namely Obama) got up there and set out the rationale for targeted killing - the need, practicality, strategic necessity, legality, and morality.

3. Your constitutional arguments are well-based. I've taken Con Law, and I'm familiar with the case or controversy requirement. With that being said, why isn't the FISA court unconstitutional on the same grounds (3)? It's certainly not adversarial, and I think it fits the textbook definition of an advisory opinion. (2) FISA jurisdiction (domestic) is fine, but (1) is unclear in respect to the FISA court. Off topic, but confusing to me none the less! Perhaps it just hasn't been challenged?

[jmm99]

Looking at the FISA Wiki and FAQs, I notice only that its constitutionality has been upheld:

19. Is FISA really constitutional?

Lower courts have found FISA constitutional. See e.g., United States v. Duggan, 743 F.2d 59(2d Cir. 1984); United States v. Belfield, 692 F.2d 141 (D.C.Cir 1982); United States v. Nicholson, 955 F.Supp. 588 (E.D. Va. 1997).

In United States v. U.S. District Court, the Supreme Court used a two-part Fourth Amendment reasonableness test. It is doubtful whether the FISA review process satisfies the Court's first measure of the reasonableness of warrantless surveillance -- whether the citizens' interest in privacy and free expression are better served by a warrant requirement.

The second element—whether a judicially imposed law enforcement warrant requirement would "unduly frustrate the efforts of Government to protect itself"—may be more easily met in the foreign intelligence setting. But Title III has for more than 30 years required more stringent procedures for criminal investigatory wiretaps.

but haven't looked at the cases for what grounds of unconstitutionality were raised. The grounds stated in the last two quoted paragraphs deal with Fourth Amendment, not Article III, issues.

I suppose the argument could be (and it is something of a bootstrap) that issuance of warrants (a non-adversarial proceeding in itself) by Federal judges and magistrates is a judicial function going back into pre-Constituitional common law. A warrant does not necessarily develop into a criminal case; and if it does, that case is not necessarily before the judge or court that issued the warrant.

A FISA warrant may or may not lead to a criminal charge, which if brought would be before a regular Federal District court (clearly a "case or controversy" at that point). That's the best I can think of off the top of my pointy head.

A "targeted killing" court would have no historical precedent. In fact, the historical precedent (death sentence) requires a full-blown adversarial proceeding.

That is an interesting point to consider: why can we kill enemy combatants without judicial proceedings ? The answer is that traditionally enemy combatants come under the Laws of War, which allow that (subject to limitations, etc.; but imposed by the Laws of War). Concepts imposed by the Rule of Law (whether domestic or international), due process, search & seizure, coerced confessions, fruit of the poisonous tree, etc., do not apply to the Laws of War in full measure, if at all.

Envision a situation where a group of AQ irregular combatants invade the local school in your US town. One option is law enforcement rules (Rule of Law - more restrictive, but maybe a better way to go to get the kiddies out alive). Another is military engagement rules (Laws of War), which could be less restrictive, but might not be the best choice in a hostage situation. My own choice would be to go with the Laws of War, but adopt law enforcement tactics. Just because you have a hunting license, you don't have to kill everything in the forest.

OK, the hostage situation comes out fairly well (not too many kiddies killed); some bad guys down and out; some surrender. What to do with them ? I'd say there are two paths (not necessarily exclusive). The default path should be detainment as irregular combatants for the duration of the conflict - they are security risks (under the Laws of War). An optional path would be domestic criminal prosecutions (Rule of Law) - cf., Noriega.

At home tonite, I'll have to download the "kill-lawyers" article (love "kill-lawyers") and read it more thoroughly. BTW, the Simon-Stevenson article is well-written and researched; but I couldn't buy their "solution".

Regards

Mike

PS: Had to add this from the Anderson article (quick skim) cuz I like it when someone agrees with me (p.42, note 61):

61 For a tiny sample, see notes to Amos N. Guiora, Targeted Killing as Active Self Defense, 36 CASE W. RES. J. INT’L L. 319 (2004). I have not in this chapter devoted attention to Israel, although it has a far more developed jurisprudence around targeted killing than the United States. The reason is that the nature of the long-term conflict, the fact that the conflict takes place in a confined geographic space, the special role of the Israeli Supreme Court in Israeli society and other factors make me believe that the Israeli experience is actually less instructive for the United States than one might otherwise have thought. It seems to me quite inappropriate in the U.S. context to discuss judicial review of targeting killing, for example.

[OccamsRazor]

That is an interesting point to consider: why can we kill enemy combatants without judicial proceedings ? The answer is that traditionally enemy combatants come under the Laws of War, which allow that (subject to limitations, etc.; but imposed by the Laws of War). Concepts imposed by the Rule of Law (whether domestic or international), due process, search & seizure, coerced confessions, fruit of the poisonous tree, etc., do not apply to the Laws of War in full measure, if at all.

This issue rears its head in other manners as well. Clearly, sometimes it's not as easy as simply just "choosing" what rule of law to operate under. Enemy combatants at Gitmo is the perfect example. If under the penumbra of the LOW, we find ourselves in a very different situation than we are now.

Interestingly, it's likely that some percentage of those individuals at Gitmo could have been outright killed (armed combatant, etc) under the LOW without any type of trial (suitable for capital punishment), but now have the privilege of a habeas hearing in the DC District Court under the ROL. Recently, the predominant conflict has revolved around the CSRT enemy combatant standard vs. the domestic habeas standard, but it is often forgotten that for many of the individuals, no standard whatsoever was required for immediate death (never mind imprisonment) in the initial confrontation.

Kind of makes the Erie Doctrine seem juvenile.

[davidbfpo]

Glad to see an IISS article gets a mention here (I am a member too) and the article awaits my attention back home - thanks for the reminder to read it.

Added elsewhere: Have a look at Professor John Radsan's writings on this theme, I listened to him applying these issues to the use of drones a few months ago. Bio: http://www.wmitchell.edu/academics/faculty/radsan.asp and this abstract: http://papers.ssrn.com/sol3/papers.c...t_id=1349357##

John Radsan has an interesting past, notably being a lawyer at the CIA, so IMHO adds to the value and insight provided.

Killing HVT or allegations of this occurred several times during the Northern Ireland 'Troubles', a taster is provided by: http://en.wikipedia.org/wiki/Shoot-t...rthern_Ireland or just search on John Stalker, an English senior police officer who tried to investigate one allegation and his career ended. The allegations are still "alive" (no pun intended) as indicated by BBC reports.

[Bill Moore]

Mike,

Interesting posts, which unfortunately give me this nightmarish vision of a bunch of a lawyers sitting around a very nice wooden table in a room with a high ceiling, large windows with a nice view and an overall classically designed room that gives an air of sosphistication, debating the legal issues concerning our transnational irregular foes. Of course at the same time in ghettos, deserts, mountains and jungles around the world our military, lawmen and covert operatives are out in the field risking their lives to prevent another attack on America with one or both hands tied behind their backs by the lawyers that do not recognize the reality of the threat today.

We obviously have findings that allow us to conduct targeted killings as demonstrated numerous times in Pakistan and elsewhere (Somalia for one example). I think targeted killings should be pursued more aggressively, but more covertly and surgical when possible. The weapon of choice shouldn't automatically be a UAV with a hellfire missile in most cases due to the fact that innocent civilians are killed, and in most cases it is not acceptable morally or politically. Yet this is one of many examples where desire (a surgical kill) bumps up against reality. Intelligence on many targets is fleeting, you have to act fast (no time for long philosophical discussions), so one way you can get there quickly in hostile territory is to fly a UAV over, get a lock in on your targeted site and launch. Frequently effective, but one can only hope there is adult leadership in the kill chain of command. Preferably an operator with ground experience that understands what death is, what it looks like and the repercussions, versus an air force officer who hasn't ever been closer to a battlefied than being 10,000 feet above it, and his/her metric for success is simply dropping a bomb on the right spot without considering the effects on people or the overall operation.

We inutatively know that we can't allow wingnuts to have a safehaven, especially one we created with our own laws. In the end the government must remain legitimate to its people, and if they don't take all necessary measures to protect their people they'll be removed. Governments are obligated to conduct targeted killings. Of course the left leaning media will oppose these attacks, and pundits will discuss for hours on radio and T.V. how these activities undermine our society by giving government too much power, but the tone conversation would change very quickly if that kid was successful in destroying our commerial airline on Christmas and slaughtering over 200 civilians from many countries. Why didn't the government prevent it?

[Bill Moore]

OccamsRazor welcome to the SWJ Council, I think you'll enjoy many of the interesting discussions here. I especially enjoy frustrating lawyers

[jmm99]

This question follows from this:

from OR
Interestingly, it's likely that some percentage of those individuals at Gitmo could have been outright killed (armed combatant, etc) under the LOW without any type of trial (suitable for capital punishment), but now have the privilege of a habeas hearing in the DC District Court under the ROL. Recently, the predominant conflict has revolved around the CSRT enemy combatant standard vs. the domestic habeas standard, but it is often forgotten that for many of the individuals, no standard whatsoever was required for immediate death (never mind imprisonment) in the initial confrontation.

Factually, the Hamdan case is an example - two bad guys KIA; two captured (one being Hamdan, the driver of the second vehicle).

Prior to the Hamdan trial, Keith Allred (CAPT, USN) filed two opinions which bear on the ultimate question posed - why are habeas proceedings required at all ? Judge Allred's opinions of 17 & 19 Dec 2007 are reported and linked at Hamdan, UBL's driver. In July 2008, the detainee's attorney appeared before Judge Robertson of the DC Circuit to stay Hamdan's MCA trial. Judge Robertson denied the stay; and no appeal was taken (Hamdan & al-Marri Updates).

Here are key facts found by Judge Allred in his 19 Dec 2007 opinion:

Hamdan capture.jpg

To this, add the findings that Hamdan was a sworn member of AQ, and UBL's driver and bodyguard.

Based primarily on the roadblock incident, Judge Allred found that, by a preponderence of the evidence, Hamdan was an "alien unlawful enemy combatant" under the MCA and was not a "lawful combatant" under either the MCA or GC III (GPW). One might ask why Judge Allred found it necessary to hold a merits hearing in Dec 2007 well before trial; to take proofs essentially the same as have been taken in Gitmo habeas cases; and decide the "combatant" issues using essentially the same standard of proof used in the Gitmo habeas cases. The answer lies in Judge Allred's 17 Dec 2007 opinion, allowing an "Article 5 (GPW) Status Hearing".

The GCs (accepted by the US) provide for hearings before "competent tribunals" in several instances:

1. GC III (Prisoners of War):

Art 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

2a. GC IV (Civilians - Internment)

Art. 42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.
.....
Art. 43. Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.
.....
Art. 78. If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.

Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power.

2b. GC IV (Civilians - Sentences)

Art. 71. No sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial.

Accused persons who are prosecuted by the Occupying Power shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them, and shall be brought to trial as rapidly as possible. ....

3. Common Article 3 (all GCs)

Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
...
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

In Hamdan, the detainee claimed EPW status under GC III - and hence was entitled to an Article 5 hearing.

In all of the Gitmo habeas cases so far decided, the detainees have claimed civilian status (not a combatant) with rights to hearings under GC IV, 41, 42 & 78 (some other GC IV provisions also may play) to determine that status and whether they are security risks.

The USG, on the other hand, has claimed that the Gitmo detainees are held under Common Article 3, which SCOTUS has held applicable to combatants of non-state actors not meeting the requirements of EPWs under GC III. CA 3 does not itself require a detainment hearing (it only requires a hearing before a sentencing or execution). But, a detainee can obtain a GC III, Art. 5 hearing, or a GC IV, Art. 41-78 hearing, by claiming EPW or civilian status.

In Hamdan, the USG claimed that the CSRT determinations met the GC III, Art. 5 standard. Judge Allred disagreed (pp. 1-4 of 17 Dec 2007 opinion), finding that Congress intended that the CSRT make an Article 5 determination; but that the DoD instructions did not task the CSRTs to make that determination. The bottom line was:

Hamdan capture 02.jpg

The CSRT instructions also did not task the CSRTs with making GC IV, Art. 41-78 determinations either. So, the CSRTs were deficient for those detainees claiming civilian status as well.

In short, because the CSRTs did not apply the applicable Laws of War, the detainees could claim that their status had not been properly determined. So, the DC judges had to do what the CSRTs were not tasked to do. That is the short of the story of why the Rule of Law (habeas) was used to apply the Laws of War (GC III and IV required determinations).

Regards

Mike

[jmm99]

Hi Bill,

Indeed, I also find this nightmarish:

from Bill
... a bunch of a lawyers sitting around a very nice wooden table in a room with a high ceiling, large windows with a nice view and an overall classically designed room that gives an air of sosphistication, debating the legal issues concerning our transnational irregular foes. Of course at the same time in ghettos, deserts, mountains and jungles around the world our military, lawmen and covert operatives are out in the field risking their lives to prevent another attack on America with one or both hands tied behind their backs by the lawyers that do not recognize the reality of the threat today.

but then I got to thinking about the reality which too often looks like this (changing your wording a bit):

... a bunch of a politicians sitting around a very nice wooden table in a room with a high ceiling, large windows with a nice view and an overall classically designed room that gives an air of sosphistication, debating the legal and political issues, including the impact on the upcoming election, concerning our transnational irregular foes. Of course at the same time in ghettos, deserts, mountains and jungles around the world our military, lawmen and covert operatives are out in the field risking their lives to prevent another attack on America with one or both hands tied behind their backs by the politicians that do not recognize the reality of the threat today.

and many of the politicians are also lawyers - a partial answer to your last question ("Why didn't the government prevent it?").

There are rational solutions that could be adopted by the executive and legislative branches that would fully accord with the US Laws of War, including the GCs that we accept, re: irregular combatants, targeted killings, detainees and the whole ball of wax - and will result in (1) hands not tied behind backs; and (2) the courts not being involved in the process.

Curious: without going into specifics (OpSec), have staff military lawyers been useful or not in targeting and other special operations ?

Regards - like to write more but it's too late (after 0200 here).

Mike

[OccamsRazor]

Mike - as usual, a great analysis. A couple of things to add on:

1. Just for clarification, Boumediene v. Bush has changed the game. It held, in short, that the writ of habeas corpus extends to (1) those in held at Guantanamo Bay, and (2) a CSRT was not an adequate substitute for a true habeas hearing (even though it was modeled after Sandra Day O'Connor's suggestion in her plurality concurrence in Hamdi v. Rumsfeld). They justified the extension by stating that Guantanamo, while outside the borders of the physical sovereignty of the United States, was still under the Constitution's penumbra due to de facto jurisdiction.

2. It should be noted, and this is a topic of interest to me as I currently have an article under review on this topic, that the habeas hearing these alleged enemy combatants have a right to is not the one that a U.S. civilian would get. It is far less. For example, hearsay (which makes up a majority of the government's case against the detainee) is admissible, even though it is usually prevented from entering as evidence in a typical habeas hearing (with many exceptions, of course). Secondly, the burden of proof is that "a preponderance of the evidence" must show that the detainee is an enemy combatant. In a regular court, the punishment of imprisonment would demand "beyond a reasonable doubt" (much higher than a "preponderance"). These changes were made to attempt to facilitate the use of intelligence (perfectly satisfactory for a LOW determination of guilt, but problematic when applied to ROL).

3. Why are there these differences? Because the Supreme Court said that there could be, essentially.

Felker, Swain, and Hayman stand for the proposition that the Suspension Clause does not resist innovation in the field of habeas corpus. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ.

As such, there is, ostensibly, room for the District Court to be flexible in its creation of the procedures and format of the habeas hearings, which hopefully allow for a reasonable deliberation. It's my argument, despite the changes in #2, that they have failed considerably, leaving the government in a lose-lose situation when prosecuting detainees. Considering the shelf life of this topic (it changes pretty rapidly), I'm considering giving up on trying to get the article published in international security journals (the process takes forever), and submitting it to SWJ, but I'm still undecided.

Bill - I'm glad to be joining the club. I come from a family of warfighters, and, while I can't claim to understand the way of life and sacrifice, I feel that I at least know what I don't know, and don't presume anything otherwise.

davidbfpo - Good to see another IISS member. Have you ever gone to any of the conferences?

[davidbfpo]

Hat tip to Abu M: What is the value of high value targeting? A presentation by a veteran intelligence analyst Matt Frankel, on leave from his service in the intelligence community..., gave a compelling presentation on high value targeting (HVT) campaigns and their utility. His findings are; see the link:
http://www.cnas.org/blogs/abumuqawam....html#comments

Mr Frankel will be publishing more, plus slides, another time.

[Sylvan]

But at a different time.
After the fact is the wrong time for them to get involved.
Develop guidance that is simple, flexible and legally justifiable. Issue that to DoD and then get out of the way. The key point being that the guidance is based upon Commander's discretion. The amount of force used will indicate the rank required.

the targeting of HVTs is a key component of what we are doing, but I think that it is too much of a focus for the SPECOPS community. We have guardsmen doing FID and SF (some, not all) sitting on a large FOB waiting to do a basic infantry raid.
We all talk about the huge success killing Al Zarqawi but that really didn't change the over all scope of Iraq. (Despite the DFC awarded to the pilot who dropped the bomb)
Bombing civilians co-located, night time door kicking raids, and Hellfires in the middle of Pakistan carry a lot of STRATCOM/IO risks that most of what we call "HVTs" don't warrant in my opinion.
But, that isn't my decision. It isn't DoD's decision. It is rightfully the President and his lawyers to develop the guidance BEFORE the fact. After that guidance is in place, commander's are held accountable to that guidance.
But the second guessing after the fact and incessant law-fair is failing our troops and our security.

[Odysseus]

Great conversation/posts. Good points all around.

Don't know if you saw, but State Department legal advisor Harold Koh formally announced US legal position on targeted killings. A good recap is at http://insidejustice.com/law/index.p..._drone_war_law

Pulled the summary below from the Wikipedia manhunt site:

America Formally Announces Policy

On March 26, 2010, in a speech before the American Society of International Law, Department of State Legal Advisor Harold Koh formally announced the United States' legal interpretation of international law with respect to targeted killing. Koh first stated that "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war." He further explained that the United States is in "an armed conflict with al Qaeda, the Taliban, and the associated forces" and thus has the lawful right to use force "consistent with its inherent right to self-defense" under international law[45] in response to the 9/11 attacks. Under domestic law, he stated that targeted killings are authorized by the 2001 Authorization for Use of Military Force (AUMF). Although he contended that these international and domestic legal grounds "continue to this day," he also provided additional justification for current U.S. actions based on continued attacks and intent by al Qaeda. He concluded that the existence of this "ongoing armed conflict" grants legal authority to the United States to protect its citizens through the use of force, including lethal force, as a matter of self-defense. Koh then addressed specific legal reasoning and standards considered by the United States "when defending itself against high-level leaders planning the attacks." He reiterated the widely accepted conceptualization of an "organized terrorist enemy" as one that does not have conventional forces. Instead, such an enemy plans and executes its attacks while hiding among civilian populations, he said. As such, "that behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians." Koh identified three elements related to situational considerations that the United States uses when determining whether a specific targeted drone killing at a particular location will occur:

* Imminence of the threat
* Sovereignty of other States involved
* Willingness and ability of those States to suppress the threat the target poses

Koh stated that the "rules" of targeting operations used by the United States are consistent with principles under the laws of war. He cited two well-known principles that govern the State's use of force during an armed conflict: distinction and proportionality. These principles are designed to protect civilians once armed conflict has begun. They are recognized under customary international law as part of Jus in Bello (conduct during war).

* Distinction: Requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack.
* Proportionality: Prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

Koh said that the United States adheres to these standards and that the United States takes great care in the "planning and execution to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum

Thought this might interest you. There's some more debate/discourse on the issue at the original "Inside Justice" site, FYI.

[jmm99]

A timely response from the Obama Administration, with a link back to this thread.

Cheers

Mike

[jmm99]

Judging from tonite's MSNBC Countdown, the following, Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill (Wash Post), will generate much adverse comment from those opposed to use of armed conflict rules vs "terrorists".

From the WP article:

By Greg Miller
Washington Post Staff Writer
Wednesday, April 7, 2010; A08

A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military's Joint Special Operations Command and has survived at least one strike carried out by Yemeni forces with U.S. assistance against a gathering of suspected al-Qaeda operatives.

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations. ... (more in article).....

This ties in nicely with Harold Koh's remarks. However, if the Obama Administration follows previous decisions, someone will soon announce some other change which will be viewed by different folks as being "soft" on "terrorists".

Regards

Mike

[OccamsRazor]

Mike -

I just finished a paper for my Law of War class that essentially looks at the different interpretations of AP I from Just War Theory perspective.

It might make good material to start a fire with if you want to take a look. Let me know.

Bill