The Rules - Engaging HVTs & OBL

[jmm99]

can still have the desired psychological impact ..."

As in using hijacked airliners as cruise missiles because you don't have cruise missiles.

What was the clear war crime (jus in bello) in using the hijacked airliner to strike the Pentagon ? Can you spell Barbara Olson ?

Regards

Mike

[motorfirebox]

What concerns me about al-Awlaki's death isn't the result, it's the process. I'm not convinced by what little evidence that has been presented against al-Awlaki being a legitimate target. The world is better off without him in it. What bothers me, rather, is that Obama was able to say "this guy needs killing", and it happened--just about that simple. I'm concerned by that concentration of power, and I'm concerned by the lack of oversight. That we know this happened at all is, basically, a favor on the part of the administration--they didn't have to tell anyone it happened, or that it was going to happen.

At least, that's my understanding. I'd be much relieved if someone showed me where I'm wrong.

carl, yeah, I'm mainly focused on domestic issues. Militarily... having been, if not Harry Potter, then maybe Ron Weasley, there's a lot a military force can do to protect itself, but there are also some sharp limits that an enemy could exploit. Ultimately, I think the hardest part for us is going to be detecting and dealing with the drones themselves. If the enemy controls the drone by remote, we can detect him, but if the drone doesn't send any signal back (which has drawbacks, obviously--it means they'd be flying blind, or guided by direct spotting), I think it could be difficult to locate before it has time to strike. On the other hand, I don't have a good idea of what kind of munitions could be carried by a low-tech drone; I suspect that the final result of AQ/Taliban trying to use drone tactics against our military would be, at best, a somewhat more precise form of mortar fire.

Oh, regarding our competence--our military is very competent, in signals as in other disciplines, but it does have to be said that sometimes we fall a bit short of the mark!

[jmm99]

on this:

from mfb
At least, that's my understanding. I'd be much relieved if someone showed me where I'm wrong.

You're scarcely alone in your sentiments; but you'll have to work your own way through (1) your inferences as to what the facts are (realizing that many facts are and probably will remain classified); and (2) which policy (and law, which is determined by policy) should be applied.

I've seen the substance of these two statements dozens of times since Fri. AM:

(1) "I'm not convinced by what little evidence that has been presented against al-Awlaki being a legitimate target." and (2) "The world is better off without him in it."

How can one say it's better that Awlaki is dead, if that someone can't find enough evidence for him being a legal target ?

I'd suggest that if Awlaki were not a "legitimate target" (a doubt I don't share), the world is far from being better off without him in it. One who believes that Awlaki was not a "legitimate target" had best join Mary Ellen O'Connell in concluding that his killing was "illegal, immoral and dangerous". And, in that view, it might be a "war crime" - does one allow "gray areas" or not ?

Your point about "process":

What concerns me about al-Awlaki's death isn't the result, it's the process. ... What bothers me, rather, is that Obama was able to say "this guy needs killing", and it happened--just about that simple.

also is something you will have to work through. On this issue, you have a lot of company among the high flying political and legal pundits of the Beltway.

I've avoided this "process" coverage because it really takes one down into the legal weeds. Briefly, Ackerman and Greenwald (who are good at political polemics and button pushing) headlined "Awlaki Killed Without Due Process". That caused a number of liberal, moderate and conservative commentators, as well as the Obama Administration, to kneejerk react and assert there has been "due process".

The "due process" stuff starts here, On Due Process and Targeting Citizens (Sat. 1 Oct), extending into today, The Kill or Capture List, with a bunch of posts in between.

I'm not going to give a legal lecture on "due process". We have "procedural due process" - the process required in our criminal and civil justice system, as well as in administrative and legislative proceedings. We also have "substantive due process", first notably applied by Justice Taney in the Dred Scott case to hold the Missouri Compromise unconstitutional under the 5th Amendment Due Process Clause because the statute prohibited slave owners from transporting slaves north of the dividing line. "Substantive due process" has nothing to do with procedures or legal processes; and it has been abused by liberals, moderates and conservatives since Taney.

Now, we may be getting a third kind of "due process" (based on secret panels, secret rules and secret determinations) - that sort of "process" being totally unknown under the "Laws of War", "Law of Armed Conflict" and International Humanitarian Law" governing killing the enemy.

Under those "war" rules, "due process" does not exist in the killing process. The essential issue is whether the target has been positively identified (PID), more likely than not, as a member of a defined hostile armed force. That determination without appeal rights might be made by a 19-year old PFC.

My crystal ball suggests that we are about to see an endless string of punditry over the presence or absence of "due process". My crystal ball also suggests that USAians will probably come out about 2/3 approve the killing, 1/6 disapprove and 1/6 undecided; and that the punditry will not make a whale of a lot of difference to the mainstream voter in 2012.

So, mfb, good fortune in navigating the weeds should you decide to do so.

Regards

Mike

[motorfirebox]

I stated that poorly. I think al-Awlaki was a legitimate target. I've seen evidence presented that he was not, but I don't find that evidence convincing.

Thanks for the blog link. Regarding the weeds, this sums up my concerns pretty succinctly:

All that said, it is worth noting that no such regime today exists, so President Obama faced the problem of Anwar Al-Aulaqi with no extant framework for the sort of thing Spencer is suggesting. There is no forum to which to take the evidence, no forum in which to present it, no forum in which that evidence can be considered against any known legal standard; indeed, there isn’t any known legal standard. The one to which Spencer is objecting is one I made up.

[M-A Lagrange]

Well, I believe we are here in front of several discussions:
1) The combatant definition. A recurrent question in the military operations against VNSA. For that, I would definitively call to look at the GC definition and the modern interpretation of a combatant by the ICRC. The need to wear a uniform is not a necessity. What is the key point is the existence of a chain of command and the active participation, in planning or conducting, military operations.

2) Targeted assassinations. There is a threat about this particular subject with a high level contribution from Mike on the legal boundaries in US for targeted assassination. Personally I do not have any opinion on that particular case. But what worries me is the increase of use of targeted assassination as war end. In the Great Lakes, under US inspiration, Ugandanda, Rwanda, Burundi and DRC have agreed to increase their use of targeted assassination against armed opponents. This is not a god news for Africa and goes against the principle of force as a tool of law enforcement. This just gives good justification for crazy states to do what ever they want (If the US can do it, so can we).

3) The problematic of engaging drones in a foreign territory and outside battle field. This is deeply liked to Jus ad Bellum.

Jus Ad Bellum Law & Legal Definition: http://definitions.uslegal.com/j/jus-ad-bellum/
Jus ad bellum is a Latin phrase that means right to wage war. This indicates a criterion that is consulted before engaging in war. This phrase concerns whether a war is conducted justly or if whether the entering into war is justifiable. An international agreement limiting the justifiable reasons for a country to declare war against another is concerned with jus ad bellum. The principles central to jus ad bellum are right authority, right intention, reasonable hope, proportionality, and last resort.

(In basic english: the right to go at war)

In opposition/complement to the Jus in Bello

Jus in Bello Law & Legal Definition
Jus in bello is a Latin term which means “the law in waging war.” It is an aspect of the international law of war which addresses the practices forbidden to belligerents during a war. Jus in bello defines standards by which a country can conduct war and the actions during the war should be just and fair. It is a group of principles intended as guidelines for the just prosecution of war. Jus in bello includes two principles of discrimination and proportionality. Discrimination defines legitimate targets and proportionality defines how much force could be used.

(how you make/conduct war)

Two concept that were developed in accordance to Jus ad Rem, or droit des gens or Right of the people and are the core base of IHL as established by Grotius and then formalized through the Geneva Law (Geneva Conventions). Geneva Law being different from IHL as IHL includes also The Hague Law (Law of war) and disarmament and non proliferation conventions.

Jus Ad Rem Law & Legal Definition
Jus ad rem is a Latin term of the civil law, meaning "a right to a thing." It is a personal right to possession of property that usually arises from a contractual obligation (as a lease). Jus ad rem is a mere imperfect or inchoate right.
It is a right exercisable by one person over a particular article of property in virtue of a contract or obligation incurred by another person in respect to it and which is enforceable only against or through such other person. The right a man has in relation to a thing; it is not the right in the thing itself, but only against the person who has contracted to deliver it. Jus ad rem is descriptive of a right without possession. On the other hand jus in re is descriptive of a right accompanied by possession. It is thus distinguished from jus in re which is a complete and absolute dominion over a thing available against all persons.

But different from the Jus Gentium:

Jus Gentium Law & Legal Definition
Jus Gentium is the law of nations; international law; universal institution. It is a Roman concept. Jus Gentium can be defined as a system of legal discipline or legal order, consisting of certain legal doctrines and precepts that serve to govern and manage relationship between nations. The Romans used the term in a very wide sense. The law of nations governing the conflict between the laws of different nations is known as jus gentium privatum, or private international law. The law of nations which regulates those matters which nations have with each other is known as jus gentium publicum, or public international law.

Jus Gentium, is the base of the actual custom and practices regulating international relations between States.

I believe a short reminder of all those definitions and concept will ease the debates here.
To say it in latin () we are discussing here some how the impact of drones on Jus Gentium in accordance (or not) to USA jus ad bellum and other States Jus contra Bellum (the right to defend them selves).
But all of this does impact individuals Jus ad Rem, wether they are combattants or not, friends or foes.

[jmm99]

whacking the weeds

Generally, Marc and I are within the same policy (and legal) framework with respect to the "juices". That doesn't mean we agree; but we can have a conversation.

The term "jus" is best translated as "right" - a "law" may not be "right". E.g., Zhivago says, in chiding the minor Party functionary who relies on a Party edict, "That gives you the Power, not the Right."

The various "juices" (all JMM views) are in quote boxes solely for separation purposes.

Jus Gentium - This Latin phrase has been stretched into "international law"; but its origins lie in the Roman gens - first "clan"; and later into "a people, tribe, nation". We can blame the lawyer Cicero for coining the term gens humana ("human race").

My BLUF: What this stretching tends to loose sight of is that the "jus" must consist of a common framework with reciprocity - everyone in the "gens" accepts and applies the same rules and understands them in substantially the same way.

Jus ad Rem & Jus in Rem - A "right to a thing" and a "right in a thing" - in common law property, we have "title-ownership" vs "possession".

My BLUF: In the present context, Jus ad Rem = state sovereignty over territory; Jus in Rem = actual occupation over territory. The distinction between the two has implications in 1949 Common Article 2 analysis, and in Neutrality Law (which has aspects of both Jus ad Bellum and Jus in Bello).

Jus ad Bellum and Jus in Bello - A "right to [go to] war" and a "right in bello". One finds some very variant theories in those two zoos.

My BLUF: The "right to go to war" (why you went to "war"; engaged in an "armed conflict") must be kept separate from the "right in war" (how you conducts the "armed conflict" once you are in it). That is also the ICRC position. E.g., One may have a perfect right to go to war, but conducts the war (warfare) in such a way as to commit war crime after war crime. OTOH, one may have no right to go to war, but conduct warfare in total compliance with all "jus in bello" rules.

The ICRC and I do differ on what the specific rules and language "are, should be" in both Jus ad Bellum and Jus in Bello. However, we are still within a common framework, but not all accept the separation between Jus ad Bellum and Jus in Bello.

Some contend, for example, that, if one's Jus ad Bellum is tainted (not "right"), that someone becomes an outlaw; and all of its acts committed in the armed conflict are tainted (not "right") - so, "wanted, dead or alive". Others contend that if one's Jus ad Bellum is "crystal" (say, a clear self-defense case, esp. in an existential case), all of its acts in warfare (no matter how extreme) are justified by the initial case for self-defense.

BTW: If a "war, armed conflict" does not exist re: the particular situation, then neither party can rely on "war, armed conflict" rules. That is the primary assertion that Mary Ellen O'Connell relies on in many of the current situations for her findings of "illegal, immoral and dangerous".

So much for the "juices" - I'm working up the page to the first two paragraphs of MAL's post.

-------------------------------
"1. The combatant definition" There is a common framework in this:

A recurrent question in the military operations against VNSA. For that, I would definitively call to look at the GC definition and the modern interpretation of a combatant by the ICRC. The need to wear a uniform is not a necessity. What is the key point is the existence of a chain of command and the active participation, in planning or conducting, military operations.

but the devil is in the details. Obviously, the issue with Awlaki and anyone who is "part" of AQ (let's leave the Taliban on the shelf for the present) is whether that person can be defined as a "legitimate target" or not - and what "gray area" (if any) one allows for discretion.

The "modern interpretation of a combatant by the ICRC" (if, MAL, you speak of the ICRC docs re: "direct participation") is not something I can agree with. I also do not agree with the 1977 AP I and AP II as written; and many interpretations (by the ICRC and others) of "Customary International Humanitarian Law". In essence, they say trust us in our presentations - I don't trust and I must verify thrice.

-----------------------------
"2. Targeted assassinations."

MAL: Your use of the word "assassinations" may or may not be intentional.

Do you mean assassiner - "to assassinate, to murder" - which contains within itself the conclusion that the act is criminal.

OR

Are you satisfied with the neutral tuer - "to kill - as in "tue' par les Iroquois" (an epitaph placed after the death dates of more than a few Colonial Marines, killed in an irregular warfare where both sides killed with a kind of feral deadliness).

The term "assassiner" was reserved for George Washington in the admission he signed when he surrendered Fort Necessity to Louis Coulon - see link, Jacob Blosser, Getting Away with Murder: The Tragic Story of George Washington at Jumonville Glen (2001) (pdf). And the controversy over targeted killings has continued since.

Please clarify if your beliefs (I won't argue with them) require assassiner, or if tuer is presently satisfactory.

As to the practical, experiential reasons - the real problems confronting you in trying to clean up knucklehead-occupied cesspools:

But what worries me is the increase of use of targeted assassination as war end. In the Great Lakes, under US inspiration [JMM: texts ?], Uganda, Rwanda, Burundi and DRC have agreed [JMM: texts ?] to increase their use of targeted assassination against armed opponents. This is not a god news for Africa and goes against the principle of force as a tool of law enforcement. This just gives good justification for crazy states to do what ever they want (If the US can do it, so can we).

I'd suggest that whatever the precise facts, present rules (if enforced) would help in ending the problems. I won't even attempt to defend Mr Obama's-Ms Clinton's African policies. I do believe that further tightening the screws on the militaries of many Westphalian states (who generally do behave) will not do any good at making the knuckleheads of the world behave.

Regards

Mike

[Bill Moore]

http://www.nytimes.com/2011/10/09/wo...nted=1&_r=1&hp

Hopefully this paragraph will lessen concerns that we're pursuing a new doctrine, or that this decision was made lightly. I'm both a supporter of this kill and the Bill of Rights, but the system allows carefully considered deviations if "absolutely" necessary to protect our nation, and in this case one successful inspired attack (MAJ Hansan) and several failed, most notably the Detroit Christmas bomber compelled the Government to take action.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat

.

They countered the lame assassination argument, this was not an assassination.

Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

Did we illegally kill an American?

A federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.

Finally the argument submitted by Fuchs implying we were conducting rogue operations in another nation.

The memorandum examined whether it was relevant that Mr. Awlaki was in Yemen, far from Afghanistan. It concluded that Mr. Awlaki’s geographical distance from the so-called hot battlefield did not preclude him from the armed conflict; given his presumed circumstances, the United States still had a right to use force to defend itself against him.

As to whether it would violate Yemen’s sovereignty to fire a missile at someone on Yemeni soil, Yemen’s president secretly granted the United States that permission, as secret diplomatic cables obtained by WikiLeaks have revealed.

More at the site.

[jmm99]

Thank you for the link to Charlie Savage's NYT article, Secret U.S. Memo Made Legal Case to Kill a Citizen, which has been brewing for a few days as the folks at Lawfare, Anti-war and elsewhere (e.g., Greenwald and Ackerman) have been pounding the administration to actually release the memo (even if redacted to preserve classified data).

The memo was "principally drafted by David Barron and Martin Lederman" - both are known quantities who generally have not advocated broad, "inherent" Executive Branch powers: e.g., Barron, David & Martin S. Lederman. "The Commander in Chief at the Lowest Ebb: Framing the Problem, Doctrine, and Original Understanding," 121 Harvard Law Review 689 (2008) - part 1 and part 2:

(snip from pt 1)
This Article begins by explaining why the debate about the “lowest ebb” is now emerging as the primary constitutional war powers question, and by addressing the methodological missteps that have typically infected this debate. It then explores recent attempts to identify the preclusive prerogatives of the Commander in Chief and explains why the tests often deployed to cabin the scope of the presumed preclusive power are flawed. Finally, it reviews the relevant Supreme Court precedent, along with the constitutional text, the historical context in which the text was written, and the original understandings, and sets the stage for the post-Founding historical review contained in the next Article.

(snip from pt 2)
This historical review shows that the view embraced by most contemporary war powers scholars — namely, that our constitutional tradition has long established that the Commander in Chief enjoys some substantive powers that are preclusive of congressional control with respect to the command of forces and the conduct of campaigns — is unwarranted. In fact, Congress has been an active participant in setting the terms of battle and the conduct and composition of the armed forces and militia more generally, while the Executive (at least until recently) generally has accepted such legislative constraints as legitimate. Although history is not dispositive of the constitutional question, legislators and executive branch actors should not abandon two hundred years of historical practice too hastily, and should resist the new and troubling claim that the Executive is entitled to unfettered discretion in the conduct of war.

Suffice to say that this pair is not of the right.

The process set up in the now "unsecret memo" is very close to that of Gary Solis (again no rightist) with respect to Targeted Killing:

Georgetown Law Professor Gary Solis, in his 2010 book entitled The Law of Armed Conflict: International Humanitarian Law in War, defines it as:

the intentional killing of a specific civilian or unlawful combatant who cannot reasonably be apprehended, who is taking a direct part in hostilities, the targeting done at the direction of the state, in the context of an international or non-international armed conflict.[1]

Solis stresses that it is not considered a targeted killing unless:

1. An armed conflict is in progress (as otherwise it would be considered a homicide, and a domestic crime; it is the armed conflict that affords a combatant the right to kill an enemy);

2. The target must be a specific individual, who is targeted because of his activities in relation to the armed conflict (under the Third Geneva Convention the civilian loses his immunity from being targeted when he takes part in such activities, which would include for example delivering ammunition, or gathering military intelligence in enemy territory);

3. Though not in any law [JMM bolding], human rights concerns suggest that the person should be one who cannot be easily arrested;

4. A senior official must authorize the targeted killing, taking into consideration the difficult issue of collateral damage. A targeted killing could be authorized in the U.S. by the President (or his designee, or two-star generals and above in the combat zone), and in Israel by the Prime Minister (or his designee); and

5. The targeted individual is directly participating in hostilities, whether in a combat function or otherwise. The applicable ICRC interpretive guidance indicates that civilians who lead terrorist organizations, for example, by virtue of their position never literally pick up arms themselves, but by the same token they never lay them down, and are therefore legitimate targeted killing targets.[1] In accord, the Judge Advocate General of the Canadian Armed Forces, Kenneth Watkin says: "It is not just the fighters with weapons in their hands who pose a threat".[1] In such case, under Protocol 1 to the Geneva Conventions, even civilians, women, and children are not immune from attack.[1]

[1] Gary D. Solis (2010). The Law of Armed Conflict: International Humanitarian Law in War. Cambridge University Press. pp. 538–47. ISBN 0521870887.

I agree that Points 1 and 2 are required.

Points 3, 4 & 5 are not required by any US law or treaty. That is admitted by Solis as to Point 3; Point 4 is based on no law or treaty known to me; and Point 5 is based on the ICRC "direct participation" interpretation not accepted by the US.

The added factors are for political effect - and to "accommodate" allies (EU-NATO) who support more restrictive rules than the US has hitherto followed.

My preference would be to follow the normal military targeting rules (essentially Points 1 and 2) with the added requirement that, if a US citizen is involved, he has expatriated himself. Examples: hundreds of US citizens in WWII, having returned to Germany before or during the war, were drafted or enlisted in a branch of that state's armed forces. That bunch included some Waffen SS EMs, NCOs and Os - and a number of expatriates were killed without legal fuss, muss or hand-wringing.

The cry for "due process" (as we know it in our constitutional law) is inconsistent with the normal lack of that kind of "due process" in the decision to kill an enemy combatant.

So, to accommodate domestic politics and doubting allies, we now have a summary of the "secret memo" - and also know that there was a "secret panel" which made "secret findings" and "secret determinations" - outside of the normal military targeting process. And, of course, these operations are a hybrid of Title 50 and Title 10, which further muddies the IHL waters.

I think this is just the opening round of a media barrage - which probably will end up being ignored by a majority of 2012 voters.

Lots of interesting weeds to muck about - and all of this "secret" stuff is either the invention of, or (where prior in part) acceptance of and expansion by, a liberal administration and the liberal lawyers advising it.

Regards

Mike

[Bill Moore]

Mike,

Thanks for the post. When addressing your comments on "secret" stuff, one really needs to first ask if this is really "secret" stuff if it is being discussed in the media? A covert operation means that the sponsor has plausible denial, if the sponsor talks about the operation in the media it is no longer covert, and you have to wonder if title 50 rules apply? The article I quoted from above also suggested that it is not a war crime if a CIA operative pulled the trigger because they're not in the military. That of course can lead to a slippery slope, and it gets to your comment about points one and two being required.

1. An armed conflict is in progress (as otherwise it would be considered a homicide, and a domestic crime; it is the armed conflict that affords a combatant the right to kill an enemy);

2. The target must be a specific individual, who is targeted because of his activities in relation to the armed conflict (under the Third Geneva Convention the civilian loses his immunity from being targeted when he takes part in such activities, which would include for example delivering ammunition, or gathering military intelligence in enemy territory);

What constitutes an armed conflict? We are openly in an armed conflict with Al Qaeda and their associates, but let's look at the problem set from a wider perspective.

If another terrorist organization (not even associated with extreme Islam) decided to target the U.S. (let's say a new left wing terrorist organization in Latin America) and we had good intelligence on them, and had low confidence the ability and will of the host nation they were residing in to arrest them,then could the CIA conduct a covert operation to conduct a preemptive strike? We're not in an armed conflict, but we have reliable intelligence they will conduct a terrorist attack against U.S. interests.

Would the military be able to do this under title 10?

I don't get overly excited about population centric COIN and nation building as it relates to CT. They generally have little effect, and we have the authorities to them, so we can keep experimenting until the cows come home, but the real issues that relate to defending the nation is the authority to take action to prevent an attack. What keeps me up at nights is the emergence of super empowered non-state actors who decide to target the U.S. and without a declared state of armed conflict we have our hands tied when it comes to pre-empting these threats.

Some will take this as advocating for a broad license to kill which isn't the case, but rather I'm advocating for a better legal process that allows us to defend our nation from these threats that is acceptable to our law makers and our people (morally acceptable) because it is in line with our constitution and values.

We both know if we allow an attack to happen and we knew it was coming, but we failed to act due to legal ambiguity then that will not be acceptable to anyone. It is easy to criticize the targeting of Awlaki because most Americans (and Europeans) didn't understand his significance. Of course, if he dispatched another Christmas bomber that was successful the people would rightfully hold the government responsible for taking preventative measures. It is possible now a days to have virtual blood on your hands.

[jmm99]

Bill Moore: I'll get to your concerns about preventing a TVNSA's attack in another post.

Here are some responses to the leaking of the now "non-secret memo":

At Lawfare:

Philip Bobbitt on Leaks and Legal Rationales (Bobbitt at Amazon):

I don’t know if this is a “middle way” but I would have preferred that the Administration take the position that an internal legal memo is privileged, and that maintaining that privilege is pretty important to the Executive Branch; that for that reason it was irresponsible of whoever leaked it to Savage. At the same time, there is an important constitutional point at issue here, and the president has a responsibility to tell us how he resolved this matter and what his constitutional reasons were. These might or might not track the memo, and ought in any case to be given in a different form, and released to the public.

This is related to what used to so irritate me about the Bush signing statements. I didn’t have a problem with the substance — that a president can refuse to enforce statutory language he deems unconstitutional — but rather with the fact that the statements were little more than boiler-plate repetitions of that general point. The president’s not explaining his position is rather like an appellate court saying to the parties to a dispute, “You win. You lose. Let’s have lunch.”

This point about presidential “doctrinal” argument is a crucial one, as we enter into that sphere of constitutional matters that are largely non-justiciable.

and, Ben Wittes on Ken Anderson and Ben's own comments on "advocacy by leakage":

I doubt very much that this is an entirely unauthorized rogue “leak” – in the sense that there are secrets here that the government very much wants to keep but that some individual decided on his or her own to disclose. I suspect, rather, that this is a situation in which the government – or some senior official therein – has decided to disclose the memo without disclosing it. This approach is fully consistent with the larger strategy of the administration on the subject of drones and targeting killing – to talk about the subject a great deal by way of claiming credit for big counterterrorism successes but to do so without talking about it at all officially. And it’s wrong. Either this program is a secret, in which case the government should stop talk to Charlie about it, or it’s not a secret, in which case it should figure out what is releasable in the memo and release it. There is no middle ground here – no legitimate middle ground, anyway – in which the right approach is coyness.

The NYT (Brisbane) on Ken Anderson:

Kenneth Anderson, an American University law professor who told me he is a “centrist conservative” on national security issues, said he supports the use of drone technology for counterterrorism but cannot abide how the administration is handling the program publicly.

“One area in which I have been relentless in criticism of the Obama administration has been their refusal to say anything about it, and at the same time essentially conducting the foreign policy of the U.S. by leaked journalism,” he said. “I just don’t think that is acceptable.”

And, from Opinio Juris, by Ken Anderson (on the road again), Secret DOJ Memo on Awlaki Targeting, and NYT Public Editor on Policy-by-Leaks:

One thought, however. As Jack Goldsmith and Ben Wittes have argued at Lawfare, and I have argued here, although it is certainly helpful to have a summary in the press about the issues discussed in the secret memo and their resolution, the fact that it is merely leaked (quite apart from not making available the actual text) is a grave part of the problem here. If it can be shown to press people and written about at length, then it should be made available publicly, as official policy and part of the process of defending the policy. Leaks de-legitimize policy over the long run, and reforms to the accountability and oversight of “covert” actions that are not truly covert need to provide some mechanism for officially releasing information on their legal justifications. It’s good that this information is out there; it is bad that it was put out there through leaks.

And, a tongue in cheek comment (same page as Ken's post) directed at Glenn Greenwald:

Has Glenn Greenwald called Marty Lederman a war criminal yet? For complicity in providing legal cover to civilian drone operators engaged in belligerency. Poor Marty, the John Yoo of the left.

My BLUF: The Obama Administration in this matter (like "Fast and Furious" and Solyndra) will probably succeed in making itself look like a multi-handed (more than two) beast whose hands are not co-ordinated, where consistency is not a hallmark, and where competency is problematic.

The following to me is WTF Squared, US contacts NC family of al-Qaida propagandist (8 Oct 2011):

CHARLOTTE, N.C. -- The U.S. State Department has offered the government's condolences to a North Carolina family whose son became an al-Qaida propagandist and was killed in a drone attack in Yemen, The Charlotte Observer reported Saturday.

The call came Thursday, nearly a week after 25-year-old Samir Khan was killed along with cleric Anwar al-Awlaki, a leader of al-Qaida in the Arabian Peninsula, the newspaper reported. Both men were American citizens.

Khan wrote a radical blog while living in Charlotte, then left to join al-Qaida and produce its English-language online magazine. U.S. officials said al-Awlaki was the target of the drone attack and Khan was collateral damage.

A State Department official called Khan's father, Zafar, a day after the family released a statement condemning Khan's extra-judicial "assassination," family spokesman Jibril Hough said. The family's statement said they were "appalled by the indifference shown to us by our government." They said they wanted the government to explain why Khan was not afforded due process and to discuss collecting his remains.

State Department spokesman Harry Edwards confirmed the call to Khan's family but declined to offer details citing "privacy issues." ....

Perhaps, there is prior DoS precedent ??

I think I'll take a nap.

Regards

Mike

[Fuchs]

Foreign Policy: Obama's Death Panel by Bruce Ackerman

According to Reuters, American citizens like Awlaki aren't targeted directly by the president or politically responsible officials. The job is delegated to midlevel operatives in the White House's National Security Council (NSC), who then send their recommendations on to a panel of NSC "principals" comprising a shifting group of cabinet officers and intelligence chiefs, depending on the particular mission involved. We do not know how much information the "principals" receive or how much time they spend weighing the evidence. But such a transient body isn't a suitable forum for making life-and-death decisions about Americans. At the very least, the fate of fellow citizens should be determined by a seasoned group of decision-makers whose judgments are honed by deliberation over time.

NSC staffers + transient principals + passive president = death. No law or regulation sets out this formula, nor is there even a public record of the existence of the NSC panels.

[jmm99]

Bruce Ackerman (Wiki) is a law prof (Yale). Spencer Ackerman (Wiki) is a national security reporter (aka Attackerman). Both are pretty much saying the same thing - "Death Panel" ..."No Due Process".

The Obama Administration opened itself up to that charge by (1) relying on war powers and military law as the principal basis for Awlaki's killing; but (2) then foregoing the military targeting process in favor of an NSC panel.

I doubt that the Ackermans would have been satisfied with the military targeting process. For example, Bruce asserts (with the certitude of a Stirling prof):

Up to this point, I haven't challenged the administration's larger claim that, putting aside the decision to target Awlaki, it had the congressional authority to send drones over Yemen in the first place. But the legal basis for its wide-ranging use of drones is remarkably weak. Shortly after Sept. 11, 2001, Congress certainly authorized force against any terrorist group that "planned, authorized, committed, or aided" the 9/11 attacks. But Awlaki belonged to an organization, al Qaeda in the Arabian Peninsula, that didn't even exist at the time. [JMM: this can be disputed] Indeed, it's increasingly tough to say that Congress's 2001 resolution authorizes the United States' continuing activities in Afghanistan and Pakistan, given America's recent decimation of the original al Qaeda's fighting capacity.

Now, the 2001 AUMF does look in futuro:

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.

but Bruce would limit that to groups using the same names today as they did pre-9/11. Obviously, the Executive Branch does not agree; nor does a majority of the Legislative Branch. Nor do I; neither does Bobby Chesney, Is There a Significant Distinction Between “al Qaeda” and “al Qaeda in the Arabian Peninsula”? (3 Nov 2010).

Who has constitutional authority to decide jus ad bellum (going to war) and jus in bello (behaving in war) issues ?

With very limited exceptions, the courts do not. These matters are "constitutional matters that are largely non-justiciable" - i.e., "political questions" as found by the Federal judge who dismissed the al-Awlaki family's law suit to enjoin his targeting. See my post, Al-Auloqi (Awlaki) case dismissed, from Dec 2010 (a number of links).

For those not familiar with Judge Bates' opinion, here are the key paragraphs:

To be sure, this Court recognizes the somewhat unsettling nature of its conclusion -- that there are circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is "constitutionally committed to the political branches" and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the "particular question" posed by a specific case, see El-Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any "carve-out" for cases involving the constitutional rights of U.S. citizens. While it may be true that "the political question doctrine wanes" where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. Indeed, in one of the only two cases since Baker v. Carr in which the Supreme Court has dismissed a case on political question grounds, the plaintiffs were U.S. citizens alleging violations of their constitutional rights. See Gilligan v. Morgan, 413 U.S. 1, 3 (1973).

In Gilligan, students at Kent State University brought suit in the wake of the "Kent State massacre," seeking declaratory and injunctive relief that would prohibit the Ohio Governor from "prematurely ordering National Guard troops to duty in civil disorders" and "restrain leaders of the National Guard from future violation of the students' constitutional rights." Id. According to the Court, the plaintiffs were, in essence, asking for "initial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard." Id. at 6. Dismissing the plaintiffs' claims as presenting non-justiciable political questions, the Court noted that "[i]t would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches." Id. at 10. As the Court explained, the Judiciary lacks the "competence" to take "complex subtle, and professional decisions as to the composition, training, equipping, and control of a military force," and "[t]he ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability." Id.

So, too, does the Constitution place responsibility for the military decisions at issue in this case "in the hands of those who are best positioned and most politically accountable for making them." Hamdi, 542 U.S. at 531; see also Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918) (explaining that "[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative - 'the political' - departments of the government, and the propriety of what may be done in the exercise of this power is not subject to judicial inquiry or decision"). "Judges, deficient in military knowledge . . . and sitting thousands of miles away from the field of action, cannot reasonably or appropriately determine" if a specific military operation is necessary or wise. DaCosta, 471 F.2d at 1155. Whether the alleged "terrorist activities" of an individual so threaten the national security of the United States as to warrant that military action be taken against that individual is a "political judgment[]. . . [which] belong[s] in the domain of political power not subject to judicial intrusion or inquiry." El-Shifa, 607 F.3d at 843 (internal quotation marks and citations omitted).

Contrary to plaintiff's assertion, in holding that the political question doctrine bars plaintiff's claims, this Court does not hold that the Executive possesses "unreviewable authority to order the assassination of any American whom he labels an enemy of the state." See Mot. Hr'g Tr. 118:1-2. Rather, the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an "operational" member of AQAP, see Clapper Decl. ¶ 15, presents such a threat to national security that the United States may authorize the use of lethal force against him. This Court readily acknowledges that it is a "drastic measure" for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a "terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009," id. ¶ 13. But as the D.C. Circuit explained in Schneider, a determination as to whether "drastic measures should be taen in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking." 412 F.3d at 197. Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff's claims, the Court finds that the political question doctrine bars judicial resolution of this case.

Thus, the questions are not "legal" issues in the usual sense (matters to be decided by the courts), but "policy" issues to be determined by the Executive and Legislative Branches. That is not "new law".

So, unless I can swing some votes in Congress and/or change policy in the WH, my opinions on Awlaki aren't likely to have any effect. Maybe one or both of the Ackermans will have better luck.

I wonder what percentage of voters in the US know the key judicial issue (justiciability) re: the Awlaki matter was decided 9 months ago ?

Regards

Mike

[jmm99]

The memo described in Charlie Savage's article came out of DoJ's Office of Legal Counsel, "completed around June 2010."

The later position of the USG (let's say a "refined" version of the OLC memo) was far from secret - a public filing of the USG's Opposition to the Awlaki law suit (signed off by Tony West, Assistant Attorney General, Civil Division).

The key USG public background facts (pp.10-13 pdf):

Anwar al-Aulaqi is a dual U.S.-Yemeni citizen who is believed to be currently in Yemen. See Plaintiff’s Complaint ¶¶ 17, 26. As noted above, the United States Intelligence Community has publicly disclosed some information concerning Anwar al-Aulaqi, see Public DNI Clapper Decl. ¶¶ 13-15, including that:

* Anwar al-Aulaqi is a leader of AQAP, a Yemen-based terrorist group that has claimed responsibility for numerous terrorist acts against Saudi, Korean, Yemeni, and U.S. targets since January 2009. Id. ¶ 13.

* Anwar al-Aulaqi has pledged an oath of loyalty to AQAP emir, Nasir al-Wahishi, and is playing a key role in setting the strategic direction for AQAP. Id. ¶ 14.

* Anwar al-Aulaqi has also recruited individuals to join AQAP, facilitated training at camps in Yemen in support of acts of terrorism, and helped focus AQAP’s attention on planning attacks on U.S. interests. Id. ¶ 14.

* Since late 2009, Anwar al-Aulaqi has taken on an increasingly operational role in the group, including preparing Umar Farouk Abdulmutallab, who received instructions from Anwar Al–Aulaqi to detonate an explosive device aboard a U.S. airplane over U.S. airspace and thereafter attempted to do so aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009, for his operation. Id. ¶ 15.

Based in part on this information, on July 16, 2010, the U.S. Department of the Treasury issued an order designating Anwar al-Aulaqi a “Specially Designated Global Terrorist” (SDGT) for, inter alia, “acting for or on behalf of al-Qaeda in the Arabian Peninsula (AQAP) . . . and for providing financial, material or technological support for, or other services to or in support of, acts of terrorism[.]” Designation of ANWAR AL–AULAQI Pursuant to Executive Order 13224 and the Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594, 75 Fed. Reg. 43233, 43234 (July 23, 2010).[1] On July 20, 2010, four days after the Treasury Department designated Anwar al-Aulaqi a Global Terrorist, the United Nations’ Al-Qaeda and Taliban Sanctions Committee added him to its Consolidated List of individuals and entities associated with al-Qaeda, Osama bin Laden or the Taliban.[2] This listing was based on Anwar al-Aulaqi’s:

“participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of”, “recruiting for”, and “otherwise supporting acts or activities of ” Al-Qaeda (QE.4.01) and Al-Qaeda in the Arabian Peninsula (QE.A.129.10).

See Press Release, United Nations, QI.A.283.10 ANWAR NASSER ABDULLA AL-AULAQI (July 20, 2010).[3] The United Nations based its listing of Anwar al-Aulaqi on findings that are ... [page break for footnotes below]

1. This designation was issued pursuant to the President’s authority under the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-06. After the terrorist attacks of September 11, 2001, the President issued Executive Order No. 13224 (“E.O. 13224”), 66 Fed. Reg. 49,079 (2001), effective September 24, 2001, declaring a national emergency with respect to the “grave acts of terrorism . . . and the continuing and immediate threat of further attacks on United States nationals or the United States.” See E.O. 13224, Preamble. The Secretary of State previously designated AQAP as a Foreign Terrorist Organization on January 19, 2010, pursuant to her powers under the Antiterrorism and Effective Death Penalty Act, 8 U.S.C. § 1189.
(See http://www.state.gov/r/pa/prs/ps/2010/01/135364.htm).

2. On October 15, 1999, the United Nations Security Council established the Al-Qaeda and Taliban Sanctions Committee (“the Committee”). See U.N. Res. 1267 (Oct. 15, 1999)
(available at http://daccess-ods.un.org/TMP/7965262.53223419.html). The Committee previously added al-Qaeda to the Consolidated List on October 6, 2001, and AQAP on January 19, 2010.

3. Available at http://www.un.org/sc/committees/1267/NSQIA28310E.shtml.

substantially identical to those made by the U.S. Department of the Treasury. See id. In connection with the U.N. action, Ambassador Daniel Benjamin, the Department of State’s Coordinator for Counterterrorism explained:

Today’s designation of Anwar al-Aulaqi is in direct response to the operational role he plays in AQAP, and most importantly because of the integral part he played in planning AQAP’s attempted destruction of Northwest Airlines flight 253 over the United States. Anwar al-Aulaqi and AQAP actively engage in terrorist plotting with the intent to harm U.S. citizens. The UN’s listing of al-Aulaqi highlights the threat al-Aulaqi poses to the international community.

See Press Release, U.S. Department of State, Listing of Al-Qaeda in the Arabian Peninsula (AQAP) (July 20, 2010) (available at http://www.state.gov/r/pa/prs/ps/2010/07/144929.htm).[4]

The Director of the National Counterterrorism Center echoed these sentiments recently, testifying before Congress that “[d]ual US-Yemeni citizen and Islamic extremist ideologue Anwar al-Aulaqi played a significant role in the attempted [Christmas 2009] airliner attack . . . Aulaqi’s familiarity with the West and role in AQAP remain key concerns for us.” See September 22, 2010 Statement by Michael Leiter to the Senate Homeland Security and Governmental Affairs Committee, Exhibit 3 at pg. 5.

Furthermore, as noted above, the Executive Branch has determined that AQAP is an organized armed group that is either part of al-Qaeda or, alternatively, is an organized associated force, or cobelligerent, of al-Qaeda that has directed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court has recognized (see Hamdan, 548 U.S. at 628-31). Accordingly, although it would not be appropriate to make a comprehensive statement as to the circumstances in which he might ... [page break for footnote below]

4. The OFAC and UN designations pertain solely to action taken to block assets and impose economic sanctions, and the information relied upon for the designations is set forth solely as publicly available background information.

lawfully do so, it is sufficient to note that, consistent with the AUMF, and other applicable law, including the inherent right to self-defense, the President is authorized to use necessary and appropriate force against AQAP operational leaders, in compliance with applicable domestic and international legal requirements, including the laws of war.

The legal points in support of the jurisdiction of the Executive and Congress - the "political question" and "non-justiciability" issues - are 17 pages, attached as 2010 (snip) Awlaki - USG Opposition.pdf

Regards

Mike

[jmm99]

from Bill Moore

What constitutes an armed conflict? We are openly in an armed conflict with Al Qaeda and their associates, but let's look at the problem set from a wider perspective.

If another terrorist organization (not even associated with extreme Islam) decided to target the U.S. (let's say a new left wing terrorist organization in Latin America) and we had good intelligence on them, and had low confidence the ability and will of the host nation they were residing in to arrest them, then could the CIA conduct a covert operation to conduct a preemptive strike? We're not in an armed conflict, but we have reliable intelligence they will conduct a terrorist attack against U.S. interests.

Would the military be able to do this under title 10?

The discussion in the two posts above establish that these questions are "political questions" and are "non-justiable". The Executive and Legislative Branches have near "exclusive jurisdiction". Thus, these questions are not "legal" issues in the usual sense - to be submitted to and decided by the courts. Instead, they are best looked at as "policy" issues.

Based on experience (200+ years of Presidents and Congresses), the Executive Branch will take the initiative, determining answers to the key policy issues and sending them on to Congress formally or informally.

Some issues in the policy question matrix:

1. Whether an attack by the TVNSA group is "immediate", "imminent" or "in preparation" ?

2. How is the attack going to unfold and what is the estimated impact of the attack ?

3. What is the value of the intelligence ("more likely than not" or "clear & convincing"; probably not a "beyond a reasonable doubt" test) ?

4. Whether our armed response is best handled under Title 10, Title 50, Titles 10-50 or Titles 50-10 ?

5. Whether to engage in an armed conflict with the TVNSA group (law enforcement tools are not necessarily excluded) ?

It's up to Congress to accept, modify or reject. If Congress abdicates (essentially the result in our Libyan "not war"), the President's decision stands and is constitutionally correct.

Are you concerned, Bill, with a President whose knees might wobble; or with a President who might use his knees to raise the bad guy's testicles a bit ?

I think you might need to clarify the problem situation a bit for me to really get your concerns.

Regards

Mike

[jmm99]

Tony West, Assistant Attorney General, Civil Division, who won the Awlaki case for the USG, was (1) while in private practice, attorney for John Walker Lindh; and (2) a friend of Pres. Obama:

West, who is a part of a power family in California, has known Obama since 2004, and he was a top fundraiser for Obama during the 2008 presidential campaign. He was finance co-chair of Obama’s California campaign, where the then-senator raised a record total of $65 million.

One can't make this stuff up.

Regards

Mike

[Bill Moore]

Are you concerned, Bill, with a President whose knees might wobble; or with a President who might use his knees to raise the bad guy's testicles a bit ?

Actually I'm concerned about both. As you pointed out this is more of a policy than a legal issue. What we all hope for is good judgement and no rule book will enable that.

[M-A Lagrange]

Hello Bill and Mike,

Thanks for all the doc. I have some comments on Bill link.

But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.

Ok, let me play the devil advocate here. If GC recognizes the active participation of civilian in military actions for the enemy, it also does for the “friends”.
On that particular point I feel a little frustrated. A CIA agent is not different from a non uniform wearing combatant from the enemy. Being part of a civilian administration conducting military operations does not exclude him from the GC.
That said, US have a law excluding their soldiers from being judged by any other jurisdiction than US. This does not change the fact that a civilian can be accused of war crimes, only the court.

Secondly, I found interesting the argumentation to justify that such action does not go against Jus ad Gentium.

As to whether it would violate Yemen’s sovereignty to fire a missile at someone on Yemeni soil, Yemen’s president secretly granted the United States that permission, as secret diplomatic cables obtained by WikiLeaks have revealed.

Basically, the US are doing it by the book (seeking sovereign foreign government agreement) despite having the technology to do it without permission. The remaining question is in deed the boundaries of the battle field, as I am not convinced by that statement:

The memorandum examined whether it was relevant that Mr. Awlaki was in Yemen, far from Afghanistan. It concluded that Mr. Awlaki’s geographical distance from the so-called hot battlefield did not preclude him from the armed conflict; given his presumed circumstances, the United States still had a right to use force to defend itself against him.

As said previously, my only concern is that targetted killings becomes a norm and then are used as "jurice prudence" by less accountable states supported and trained by US.

Finaly, as said in the article, there are occasions US are capable to set commando operations to “arrest” a HVT as Ben Laden. Now, my cynical political paranoid mind is telling me that we are entering in the cost consideration area rather in the risk evaluation area. And laws are used just to justify those budget cuts.

[Fuchs]

@Jmm99:

I reat between teh lines that Ackerman was concerned about
* is this working as intended?
and
* can we be satisfied with how it's working?
and came to the conclusion no/no.

It's not merely a legal thing (courts in wartime and legal counsels of an administration aren't even close to perfect anyway), but a thing of organising how the state/government is being run.

To accept that the chief of the executive branch delegates the power to kill dissidents to some mid-level bureaucrats is not an idea that comforts him.


It's in tradition of the expansion/assuming of executive powers that was very visible during Nixon and GWB administrations, even during the Clinton administration, and that does not seem to be a popular tradition.
In other words; it's the road to authoritarian governance.

[Bill Moore]

Posted by Fuchs,

To accept that the chief of the executive branch delegates the power to kill dissidents to some mid-level bureaucrats is not an idea that comforts him.

On this point (not the outcome) I tend to agree with you, and concur we need a better system. I think a reasonable legal process would have came to the same conclusion, but that may not always be the case. Where those who are debating this kill from a civil rights perspective are challenged is the logic of killing this particular individual is hard to argue. On the other hand, the process does need to be looked at.

It's in tradition of the expansion/assuming of executive powers that was very visible during Nixon and GWB administrations, even during the Clinton administration, and that does not seem to be a popular tradition.
In other words; it's the road to authoritarian governance.

A review of our history will probably verify that it was our left leaning administrations that were more prone to use covert operations than our right leaning administrations. Those that leaned towards the right (with Nixon being an exception) generally have much more respect for the Constitution.

Another reason executive power is expanding in my opinion is that the world has and is changing in ways that allows an adversary to conduct an attack on us with little to no warning, which means we need a rapid response and the person best positioned to make those decisions is the President. OIF didn't require a rapid response, and it was debated in Congress, it was legal by our standards. Our involvement in Libya as I understand it is questionable because it didn't go through that process. Maybe the President felt compelled to act quickly based on the humanitarian situation, but the scope of the mission expanded and before it did it could have been debated and voted on in Congress. Looking at notional cases, a nation or non-state actor launches a missile at the U.S., we suffer a major terrorist attack and another one is pending, North Korea invades South Korea, etc., all of these will require rapid "initial" responses, and the President has these powers. Rightfully so in my book.

[jmm99]

1. The Executive and Legislative Branches have jurisdiction over Jus ad Bellum (going to war - the text gives Congress the edge here, if it elects to exercise its rights) and Jus in Bello (behaving in war - the text give the President the edge here as Commander in Chief).

2. The Judicial Branch doesn't generally have jurisdiction in these military matters - except where that Branch is "still open for business". Ex Parte Milligan and Ex Parte Quirin.

3. Executive Branch power is at its weakest (allowing judicial intervention) in the domestic arena, esp. where Congress has not endorsed the Executive's actions. Steel Seizure Cases.

4. The Constitution does not deal explicitly with foreign interventions. My BLUF: the more "interventionistic" an administration is, the more it tends to a greater degree of "authoritarianism" (which can be inchoate - the powers are not exercised).

5. The Chief Executive cannot (not enough time to) get involved in the details of every Executive Branch action. So, the planning and decision-making process has to be delegated. The Constitution does not explicitly detail the delegation process.

My BLUF: Since we went to a military policy (and rules) to kill Awlaki, then the military targeting process should have been used. Since Awlaki was a mid-level functionary, what's wrong with mid-level functionaries deciding to pull the trigger ?

As far as I am concerned, when the CIA functions as a military arm, it should be considered military (a stroke of the "Executive Pen") - no matter who takes the lead in Titles 10-50 or Titles 50-10 operations.

----------------------------------------------
Why can't the AQ boys come under GC III -PWs ?

My BLUF: Because their group has not availed itself of the 1949 Common Article 2 (para 3) option to accept and apply the 1949 GCs. In most places where the US conducts warfare (even if not of an international character), 1949 GC IV will apply to true civilians via 1949 Common Article 2 (para 2):

1949 CA2, para 3:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

1949 CA2, para 2:

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance

The Commentary to 1949 CA2, para 2:

This new provision is particularly pertinent for the protection of civilian persons under the Fourth Convention, but its inclusion is none the less appropriate in regard to prisoners of war, since, even in the absence of resistance, the Occupying Power might be tempted to intern all or part of the armed forces of the adversary in the interests of its future security. For that reason it was necessary to ensure that such internees would be treated as prisoners of war throughout their detention.

and a JMM Comment to the rule and commentary:

Paragraph 2 clearly applied to Afghanistan in 2001 (which never lost its status as a High Contracting Party, even under the US view that it had no recognized government). Who were the Occupying Powers ? The Taliban and Northern Alliance fit that definition. The US did not since it did not attempt to occupy the country in any formal legal sense (Iraq was a different matter, with US military and then civilian provisional governance). However, since the US was and is a High Signatory Party, it is arguable that it had an obligation under GC IV toward civilians in the areas where it had actual control. The Occupying Powers (Taliban and Northern Alliance) had the same GC obligations toward civilians, which neither observed very well.

The AQ, in addition to not meeting 1949 CA 2, para 3, did not meet the tests of 1949 GC III - PWs (Art. 4 et seq). None of the Gitmo detainees (except Hamdan) even claimed 1949 GC III PW status. All claimed 1949 GC IV status as privileged civilians (some successfully, some not).

Regards

Mike