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Old 06-18-2010   #41
jmm99
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Default Paper on AP I

O'Razor,

PM mit address sent.

Regards

Mike
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Old 12-06-2010   #42
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Default Targeted Killings Work

An article on this theme appeared in the new E-journal Infinity Journal (weblink: http://www.infinityjournal.com/ ) and has been furthered by a commentary on Kings of War by David Betz:http://kingsofwar.org.uk/2010/12/ass...s-your-nation/

David Betz's opening:
Quote:
In their Infinity paper Wilf and Adam are refreshingly direct, ‘TK requires skill and a strict adherence to the fundamentals of “doing good strategy”, which is why the issue of “protecting the population”, even making friends with militants, which seems to have taken precedence over breaking the enemy’s will to fight, is so counter-productive to military operations in a number of theatres of war'…
Yes, the cited Wilf is our very own Wilf.
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Old 12-09-2010   #43
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Default Al-Auloqi (Awlaki) case dismissed

Most of Judge John Bates' 83 page opinion dealt with the question of whether Al-Auloqi's father (the actual plaintiff in the case) had "standing" to bring the action to enjoin Auloqi's targeted killing. The question of "standing" (and its absence in this case) has little application outside of the facts in this particular case.

However, Judge Bates did decide the "political question" issue (pp.65-80) adversely to Auloqi. The rationale of that decision goes beyond the Auloqi case and puts paid to judicial review of most questions dealing with enemy combatants - beyond basic habeas review of some detainees (at pp.78-80):

Quote:
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.
This result is not a surprise to me.

Lawfare has a number of entries commenting on the Auloqi decision:

Al Aulaqi – Judge Bates Grants Government’s Dismissal Motion, Tuesday, December 7, 2010, by Larkin Reynolds.

Initial Thought on Al Aulaqi and the Press, Tuesday, December 7, 2010, by Benjamin Wittes.

Outline of the Al-Aulaqi Opinion for Those in a Rush…, Tuesday, December 7, 2010, by Robert Chesney.

What ACLU and CCR Won in al-Aulaqi, Tuesday, December 7, 2010, by Jack Goldsmith.

Some Thoughts on Judge Bates’ Decision, Wednesday, December 8, 2010, by Benjamin Wittes.

Human Rights Watch, 7 Dec 2010 Letter to Pres. Obama.

John Bates is a Vietnam vet (1968-1971; one tour in country) - Wiki.

Regards

Mike

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Old 12-11-2010   #44
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Default Policies of targeted killings

I have to take issue with a collateral point asserted by Wilf in his "targeted killings" article in the Infinity Journal (linked by David above).

Wilf's assertion:

Quote:
p.13 pdf

For example, it can be shown that it is a mistake to refer to a “policy of targeted killings”, as policy refers to ultimate political objectives, not a particular tactic (e.g. killing).
That assertion is not borne out when one looks at state practice and the terminology used by policy types, where "targeted killings" (or forbidding them) are expressly considered a matter of national policy. Here are examples from Israel, Russia and the US.

As Israeli Policy - Evidence

First, look to the title of the 2005 Zussman article (one of Wilf's footnotes) - Targeted Killings: Evaluating the Effectiveness of a Counterterrorism Policy, by Asaf Zussman & Noam Zussman, Discussion Paper No. 2005.02, January 2005. The "policy" terminology is used more than a dozen times in the article's body.

And second, look to a more definitive source - the Israeli Supreme court, quoting the Israeli government - in the 2005 Targeted Killings Case:

Quote:
HCJ 769/02: The Public Committee against Torture in Israel & Palestinian Society for the Protection of Human Rights and the Environment v. The Government of Israel, The Prime Minister of Israel, The Minister of Defense, The Israel Defense Forces, The Chief of the General Staff of the Israel Defense Forces & Shurat HaDin – Israel Law Center and 24 others; The Supreme Court Sitting as the High Court of Justice [December 11 2005]
......
2. In its war against terrorism, the State of Israel employs various means. As part of the security activity intended to confront the terrorist attacks, the State employs what it calls "the policy of targeted frustration" of terrorism. Under this policy, the security forces act in order to kill members of terrorist organizations involved in the planning, launching, or execution of terrorist attacks against Israel. During the second intifada, such preventative strikes have been performed across Judea, Samaria, and the Gaza Strip. According to the data relayed by petitioners, since the commencement of these acts, and up until the end of 2005, close to three hundred members of terrorist organizations have been killed by them. More than thirty targeted killing attempts have failed. Approximately one hundred and fifty civilians who were proximate to the location of the targeted persons have been killed during those acts. Hundreds of others have been wounded. The policy of targeted killings is the focus of this petition.
The body has over 40 references to that "policy".

As Russian Policy - Evidence

2007 Turbiville, Hunting Leadership Targets (JSOU).pdf (p.14-15 pdf):

Quote:
Shamil Basayev - the most notorious, effective, and hunted Chechen insurgent and terrorist leader in the Caucasus - died in a large roadside explosion in Igushetia, a 10 July 2006 event that Russia quickly claimed as a “special operations” success.[1] The last public communiqué that Basayev is known to have written appeared just the day before he died. It was issued to express his Caucasus jihadists’ gratitude to Iraqi mujahideen for their elimination of five “Russian diplomats” and “spies” ambushed in Baghdad on 3 June 2006. Basayev noted that the deaths were fitting revenge for the February 2004 assassination of former Chechen President, Zelimkhan Yandarbiyev, by Russian Foreign Security Service agents in Doha, Qatar. [2] A likely contributing factor was the Chechen earnest request to the Arab/Iraqi guerrillas for this action. Further illustration of common Chechen-Iraqi insurgent interests were Iraqi militant demands that Russia withdraw from Chechnya.[3]

Quote:
(footnotes 1-3 omitted)
One of the Russian diplomats in Iraq was killed on the spot, with the other four kidnapped and executed later that month by the Iraqi “Mujahideen Shura Council.” [4] The Shura Council, which videotaped the event, purports to be an umbrella organization for a number of guerrilla groups-for example, “Al Qaeda in the Land of the Two Rivers (Iraq).” At the time, Al Qaeda was led by Jordanian Abu Musab al-Zarqawi, the priority terrorist target of U.S. Special Operations Forces (SOF). Being Iraq’s most prominent and murderous insurgent, he was killed in a U.S. operation on 8 June, just days after the Russians were kidnapped.[5]

Quote:
(footnotes 4-5 omitted)
Russian President Vladimir Putin reacted with seeming decisiveness to the murder of the diplomats in Iraq.[6] He requested and received the authority - “unanimously, unconditionally, and limitlessly” - from the Russian Parliament to deploy military and security service/special operations personnel abroad to identify and hunt down terrorists who harmed Russian citizens and to attack their bases.[7] He specifically ordered the personnel “to find and eliminate the terrorists” responsible for the abduction and murders.[8] Not long thereafter on 20 July, Putin appeared on Russian television to personally decorate the unseen (by cameras) and unnamed Russian special operators credited with Basayev’s elimination.[9]

Quote:
6. Putin chose to publicly announce his intentions to seek out the militants involved - and call for help in identifying the murders - at a 28 June 2006 meeting with the Saudi Foreign Minister in Moscow. See Francesca Mereu and Simon Saradzhyan, “Putin.”

7. See three references:

a. “Russia to Fight Terror Worldwide,” 5 July 2006, available from http://kommersant.com/page.asp?id=687758 (accessed May 2007)

b. “Troops Abroad,” 8 July 2006, available from http://kommersant.com/page.asp?id=688676 (accessed May 2007)

c. Ivan Preobrazhenskiy: “President’s Military Right,” Politkom.ru, 8 July 2006, translated in CEP20060711035001.

8. Putin’s intentions were called “absolutely moral and legal from a logical point of view,” by the First Deputy Speaker of the State Duma, Oleg Morozov, and widely reported in the Russian media. For example, see ITAR-TASS, 4 July 2006, translated in CEP20060704950089.

9. The 20 July 2006 award ceremony was noted in various media, including Tatyana Aleksandrova and Mikhail Antonov, presenters, “Vesti,” Rossiya TV, 20 July 2006, translated in CEP20060720950276.
The bottom line here was the Russian government's expression of its "targeted killings" policy via the Duma's act and Putin's executive order.

As US Policy - Evidence

US express national policy forbids "assassination" (EO 12333), but there are exceptions summarized in this famous (to JAG types), MEMORANDUM ON EXECUTIVE ORDER 12333 AND ASSASSINATION, Colonel W. Hays Parks, USMCR (Ret.) (attached as pdf):

Quote:
In a Memorandum of Law originally dated November 2, 1989, W. Hays Parks, Special Assistant for Law of War Matters to The Judge Advocate General of the Army, examined national and international legal interpretations of assassination in order to provide guidance in revising a U.S. Army Law of War Manual. The memo is not a statement of policy, but rather a discussion of the definition of assassination and legal issues to consider in its application, including levels of conflict and the distinction between assassination in wartime and peacetime. It explores the meaning and possible application of assassination - which is prohibited as a matter of national policy by Executive Order 12333 - in conventional, counterinsurgency, and counter-terrorist operations. The memo concludes that the use of military force against legitimate targets that threaten U.S. citizens or national security as determined by the President does not constitute assassination and would therefore not be prohibited by Executive Order 12333 or by international law.

The memo was promulgated in 1989 and is reproduced here to enhance the discussion, still relevant 14 years later, about the legal implications of a policy of targeted killings.
Exceptions to EO 12333 require Presidential findings, etc. (a "policy statement" by any definition I know).

Note that deadly force, as used in the various contexts allowed under COL Parks' arguments, goes well beyond the US domestic law limits (for LEOs) established in Tennessee v. Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989).

A generalized reason for requiring express adoption of "targeted killings" as a national policy is that the military is not usually authorized constitutionally to act in these gray areas without express authority from the political branches. Even Putin found it necessary to pick up cover from the Duma.

Wilf, I can't see why a military type would reject an express national policy cover. As a civvy type, I would surely want an express EO as an exception to EO 12333 before sending out the drones to kill someone. Enlighten me.

Regards

Mike
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File Type: pdf 1989 Parks, Executive Order 12333 and Assassination.pdf (149.7 KB, 197 views)
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Old 12-11-2010   #45
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Originally Posted by jmm99 View Post
That assertion is not borne out when one looks at state practice and the terminology used by policy types, where "targeted killings" (or forbidding them) are expressly considered a matter of national policy. Here are examples from Israel, Russia and the US.
You have to differentiate between how the term is used and what it actually means. Ends, Ways and Means. Targeted killings are the Ways, not the Means, so clearly they are not Policy. A verb cannot be a policy. It has to be a condition. Killing is action. It sets forth the policy by a variety of tactics. The strategy has to be viable within tactics, not the Policy.

There may be a "policy of authorisation," but that does not make it a Policy. What they really mean is that they will allow its use in pursuit of the Political Goal = the Policy. That Israel, Russia and the US cannot write English well or use it correctly is part of the problem.

Also credit needs to give to Adam Stahl for this article, far more than me. His research on Israeli Targeted killings is world class.
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Old 12-11-2010   #46
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Originally Posted by William F. Owen View Post
Also credit needs to give to Adam Stahl for this article, far more than me. His research on Israeli Targeted killings is world class.
Yes, but America is very good at it when we decide to do it, read Killing Pablo. But like I have been saying Strategy IS Targeting!
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Old 12-11-2010   #47
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Default Hey Wilf,

I'll stick with the term "policy of targeted killing" - and line up with those English-deficient Israelis, Russians and USAians.

E.g., Steven R. David, “Fatal Choices: Israel’s Policy of Targeted Killing.” The Begin-Sadat Center for Strategic Studies: Mideast Security and Policy Studies No. 51 (September 2002): p.2:

Quote:
Targeted Killing: the intentional slaying of a specific individual or group of individuals undertaken with explicit governmental approval.
In any event, best wishes for your journal.

Regards

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Old 12-11-2010   #48
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So let me break this down. Is "targeted killing"

a.) A policy = Political end state.
b.) A strategy = the use of force for political objectives.
c.) A tactic = means of fighting

Clearly, it's not a policy and it's not a tactic.
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- The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
- If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition
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Old 12-11-2010   #49
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Default Since you've excluded

"a" and "c" - by your fiat, we really have nothing to discuss or "break down", do we.

Hint: "killing" is a present participle, which can have meanings (pl.) as part of a noun phrase and as part of a verbal phrase.

Bonne Chance

Mike
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Old 12-12-2010   #50
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Default Uh, Wilf...

Quote:
Originally Posted by William F. Owen View Post
So let me break this down. Is "targeted killing"

a.) A policy = Political end state.
b.) A strategy = the use of force for political objectives.
c.) A tactic = means of fighting

Clearly, it's not a policy and it's not a tactic.
Seems to me it can be the policy of a nation to use or not to use targeted killing as you said -- that makes it a noun phrase (I made that up...).

It can be a strategy followed by a nation to achieve specific results or actions / counteractions that will possibly lead to certain results.

That it can be a tactic arrive at a strategic goal or simply to achieve tactical advantage.

So I don't see how you can discount a. and c.

We are indeed separated by a common language...
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Old 12-12-2010   #51
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Default Googling

the following three phrases:

"policy of targeted killing" - 74,900 hits

"strategy of targeted killing" - 45 hits

"tactic of targeted killing" - 68 hits

My personal two cents worth (for what it is worth) is that "targeted killing" (which ain't new) is a different enough form of warfare to have its own "grammer"; and that, moreover, it cuts across the DIME instruments of power (and whatever more letters you want to add) horizontally and runs vertically down from the highest national command authority to the guy or gal who pulls the trigger or pushes the button.

I don't exclude the use of the two lesser phrases (strategy and tactics). For example, the decision making targeting process does have its own features, as illustrated by Amos N. Guiora, License to Kill, 13 Jul 2009, Foreign Policy (another user of the term "policy": "Israel instituted its targeted killing policy in large part in response to Palestinian suicide-bombing attacks"):

Quote:
When asked by a particular commander to authorize a targeted killing, I would ask the following factual questions:
»Who is the source?
»How reliable is the source?
»How timely is the information?
»What is the relationship between the source and the potential target?
»How precise is the information? (I was once told, for example, "he is wearing a blue shirt and blue jeans," but it was nighttime and the commander had night-vision equipment)
»When was the last time the unit conducted a nighttime ambush?
»How confident was the commander in his unit's capabilities?
»Did the commander receive the intelligence directly from the intelligence community and had he discussed the issue with a case officer?
Not all of its cases have a "Committee X" (or Barak playing a brunette followed by a strawberry blond); Guiora's example was Gaza where the area commander made the decision in individual cases at that time.

Cheers

Mike

PS: Here is an update (mostly on Israeli and US practices - they are somewhat different) from earlier this year, Gabriella Blum and Philip Heymann,Law and Policy of Targeted Killing (Harvard National Security Journal; posted on Jun 27, 2010).

Last edited by jmm99; 12-12-2010 at 07:43 AM. Reason: add link
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Old 12-12-2010   #52
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Killing cannot be a "policy." It's like saying "bombing is a policy." Killing and or bombing are parts of a strategy. To be doable they have to be realisable in tactics.

IR uses a lot of and poorly informed language. It's not rigourous, and highly pseudo-academic.
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- The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
- If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition
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Old 12-12-2010   #53
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Hmm. Seems to me that targeted killing is a tactic. One that should be implemented within the bounds of some policy to achieve some end. If it is by a sniper against some tactical target on the battlefield, it is a tactical end. If it is by design to take out some senior or critical individual for a strategic effect, then it is strategic.

As a tactic, like counterterrorism or terrorism, it is not warfare per se, but rather may be employed in war or peace IAW a nation's policies.

Time, manner, place all contribute to any assessment of some specific killing if one is feeling compelled to place it in some specific bin.

I would recommend that the U.S. adopt a policy of targeted killings of specific individuals that they have publicly "tried" in absentia and found guilty of a capital offense. This would build my standing target list, then, like in all targeting, I would establish clear criteria for on call targets, or targets of opportunity that meet the criteria, but time urgency demands immediate engagemnt.

In conjunction with this I would drop the entire "war" label from our actions to defeat terrorism and also drop the current legal tool of naming organizations in total as "terrorist." Wars, of course, are messy and create tremendous strategic risk for major nations. As to the terrorist labeling of organizations, it simply ties our hands in how we deal with these groups, preventing many more reasonable approaches to bring them in from the cold and incorporate into effective solutions.
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Old 12-12-2010   #54
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Hmm. Seems to me that targeted killing is a tactic.
There are a whole range of tactics to perform targeted killing, but you asked exactly the same question that Adam and I started with.
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- The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
- If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition
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Old 12-13-2010   #55
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IR uses a lot of and poorly informed language. It's not rigourous, and highly pseudo-academic.
I'm not so sure I agree--typically IR folks use terms that are understood quite clearly by other IR folks, and where there are multiple meanings ("balance of power" for example) they're discussed and dissected at length.

The Merriam-Webster dictionary definition of "policy" is:

a : a definite course or method of action selected from among alternatives and in light of given conditions to guide and determine present and future decisions
b : a high-level overall plan embracing the general goals and acceptable procedures especially of a governmental body

The term "policy" can thus subsume goals ("our policy is a two state solution to the Israeli-Palestinian conflict"), strategy ("our policy has been to promote direct talks"), or well-established or habitual official actions ("our policy is not to allow searches of diplomatic vehicles at checkpoints"). Most IR folks (and most policy folks) would understand it as potentially meaning all those things.

A "political end state" sounds more like a goal, or possibly an interest.
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Old 12-13-2010   #56
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I'm not so sure I agree--typically IR folks use terms that are understood quite clearly by other IR folks, and where there are multiple meanings ("balance of power" for example) they're discussed and dissected at length.
OK, good points. Let me re-phrase. IR discussions on strategy are general very poor, because folks have not held to the correct use of language.
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- The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
- If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
Sir Gerald Templer, foreword to the "Conduct of Anti-Terrorist Operations in Malaya," 1958 Edition
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Old 01-08-2011   #57
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Default Targeted killings: what are the alternatives?

nearly missed this comment piece on the KoW blog:http://kingsofwar.org.uk/2011/01/raf...-alternatives/

A curious link at the end, raising a point I'd not considered before - court judgements by the 'X' Supreme Court. The comments are a reasonable read too.
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Old 03-17-2012   #58
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Default Licence to Kill: When governments choose to assassinate

An article to accompany a BBC radio programme this evening, by Gordon Corera, which opens with:
Quote:
Can state-sponsored assassination work as a strategy? And can it ever be justified? Governments don't admit to it, but Iranian nuclear scientists know it happens - and it's not easy to distinguish assassination from the US policy of "targeted killing".
Link:http://www.bbc.co.uk/news/magazine-17353379

It is a "broad brush", historical article and I'll link the radio podcast another time.
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Old 03-17-2012   #59
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Default UK view of BIJ

What is the UK view of the Bureau of Investigative Journalism (BIJ) ?

Its projects re: drones, etc. are here, Covert Drone War. It will take one some time to work through the material. E.g., The Bureau's major database and linked search engines of all known CIA drone strikes in Pakistan.

Regards

Mike
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Old 03-18-2012   #60
davidbfpo
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Default The BIJ

Mike,

You asked:
Quote:
What is the UK view of the Bureau of Investigative Journalism (BIJ) ?
I have looked at the website before and to a non-media person it appears to be well funded, with a private trust's donation, based at a London university, with a mix of student and professional journalists - the later from mainstream outlets. Their aim appears to be to provide stories to the media. The subject matter varies and rarely - thankfully - appears to be PR-led.

London is awash with establishments where journalists and others mix, just like Washington DC.
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