This is a presentation based on Professor McNeal’s paper, “Kill-Lists and Accountability” ( Available here: http://bit.ly/collateraldamage1 ).

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Interactive Course on International Humanitarian Law

January 11-13, 2012  Pepperdine University School of Law

 

I’m proud to announce that Anne Quintin of the ICRC and I will be hosting an interactive course on the law of armed conflict here at Pepperdine University School of Law.  This event is in partnership with the International Committee of the Red Cross and is a special workshop led by legal professionals from the International Committee of the Red Cross and the American Red Cross, military lawyers and law professors who specialize in IHL.

Course Description:

Interactive training using response-based technology to place participants in an operational context. The course will combine lectures and technology enabled exercises on International Humanitarian Law (IHL), or the Law of Armed Conflict (LOAC).

Open To:

Graduate students with a background in international law, legal practitioners, and NGO staff.

To Apply:

Please fill in the application form and send it back to anquintin@icrc.org. Deadline for application is December 15, 2012.

Draft Schedule:

Continue reading »

 

Today I appeared on Huffington Post Live on a panel discussing rules for the use of drones in targeted killings.  The panel information and video clip appear below.

In anticipation of the election, the Obama administration started working to codify drone policies. Why did they wait so long and what might the rules look like?  Originally aired on November 27, 2012

Hosted by:
GUESTS:

  • Josh Hersh (Washington, DC) HuffPost Foreign Policy Correspondent @joshuahersh
  • Hina Shamsi (New York, NY) Director of the National Security Project at the American Civil Liberties Union. @hinashamsi
  • Gregory S. McNeal (Malibu) Professor, Pepperdine University @gregorymcneal

 

I appeared on a panel sponsored by the International & National Security Law Practice Group of the Federalist society.  The panel was entitled “National Security vs. International Law?” and was held on Friday, November 16, 2012, during the 2012 National Lawyers Convention.

International: National Security vs. International Law?
3:30 p.m. – 5:00 p.m.
Grand Ballroom

  • Prof. Kenneth Anderson, American University Washington College of Law
  • Prof. Rosa Brooks, Georgetown University Law Center
  • Prof. Julian Ku, Professor of Law and Faculty Director of International Programs, Hofstra University School of Law
  • Prof. Gregory S. McNeal, Associate Professor of Law, Pepperdine University School of Law
  • Moderator: Prof. John O. McGinnis, Northwestern University School of Law

Ken Anderson had a write-up about the panel at Volokh and a video of the panel is embedded below.

GMU Law Logo

On November 14th at 12pm at George Mason University School of Law, I will be making a presentation entitled Kill-Lists and Accountability, based on my identically titled paper.  The abstract of the paper appears below:

This paper examines the U.S. practice of targeted killings. It proceeds in two parts, the first part is an empirical description of the process of targeted killings. Based on qualitative empirical research conducted pursuant to proven case study techniques, part one describes how kill-lists are created, what government actors approve the name of individuals to be added to kill lists, how targeted killings are executed, and how the U.S. implements its International Humanitarian Law obligation to mitigate and prevent harm to civilians.

Specifically, the paper explains in rich detail the process the U.S. follows to estimate and mitigate the impact of conventional weapons on collateral persons and objects in most targeted killings. Key Findings: In pre-planned operations the U.S. follows a rigorous collateral damage estimation process based on a progressively refined analysis of intelligence, weapon effects, and other information. When followed, this process dramatically reduces the amount of collateral damage in U.S. operations, and also ensures high levels of political accountability. However, due to the realities of combat operations, the process cannot always be followed; Data about the U.S. military’s collateral damage estimation process reveals that the system is intended to ensure that there will be a less than 10 percent probability of serious or lethal wounds to non-combatants; In actuality, less than 1% of pre-planned operations that followed the collateral damage estimation process resulted in collateral damage; When collateral damage has occurred, 70% of the time it was due to failed “positive identification” of a target. 22% of the time it was attributable to weapons malfunction, and a mere 8% of the time it was attributable to proportionality balancing – e.g. a conscious decision that anticipated military advantage outweighed collateral damage; According to public statements made by U.S. government officials the President of the United States or the Secretary of Defense must approve any pre-planned ISAF strike where 1 civilian casualty or greater is expected.

In the second part of the paper, I turn from the empirical to the normative. I describe the various mechanisms of accountability embedded in the targeted killing process. Specifically, I set forth an analytical framework which allows for the examination of legal, political, bureaucratic, and professional mechanisms of accountability. I then assess the strengths and weaknesses of these four accountability mechanisms as applied to U.S. targeted killings. The paper concludes by suggesting legal and policy reforms to address the shortcomings identified in the normative section. 

KNewImageill-Lists and Accountability, a public lecture at Penn State’s Dickinson School of Law.  November 12, 2012 7 p.m.   

In targeted killings, who creates the “kill list?”  Who approves the names on the list? How is the targeted killing executed? Who is responsible for ensuring that the strike complies with international humanitarian law obligations? When killings are conducted in secret, how can we hold government accountable? National security scholar Gregory McNeal will present “Kill-lists and Accountability” at Penn State Law and the School of International Affairs.

The public is welcome to this event, which will begin at 7 p.m. in Lewis Katz Hall in Carlisle, PA. Registration is requested.

“As the shift from conventional combat to cyber attacks and targeted killings (often through unmanned drone strikes) accelerates, questions arise as to the applicability of the legal standards governing armed conflict developed in earlier times,” said Professor Amy Gaudion, who is organizing the event. “Professor McNeal’s work attempts to answer these questions, and offers recommendations for how the laws of war should apply when the tools in the combat arsenal change.” Professor McNeal’s presentation is based in part on recent field research he conducted into the U.S. practice of targeted killings, and specifically the creation and execution of “kill-lists”. His research concludes that less than 1% of preplanned operations conducted by the military result in collateral damage, but this only tells part of the story as reports indicate the CIA is also involved in the controversial practice.    

This program is co-sponsored by the American Constitution Society, Federalist Society, International Law Society, Military Law Caucus and Penn State Journal of Law & International Affairs, an interdisciplinary journal jointly published by Penn State Law and the Penn State School of International Affairs.
 
This event will be held in the Apfelbaum Family Courtroom and Auditorium in Lewis Katz Hall in Carlisle, PA, and simulcast to the Apfelbaum Courtroom, Lewis Katz Building, University Park, PA, and webcast live.  For more on this issue, see my article Kill-Lists and Accountability.

WCL logo

THE LAW OF CYBER WARFARE: CAN THE CURRENT LEGAL REGIME HACK IT?  

Presented by the American University International Law Review and National Security Law Brief

November 8, 2012 10:30 am – 2:30 pm American University Washington College of Law

Although cross-border attacks on computers and information systems do not involve a physical invasion of sovereign space, incursions such as the Stuxnet virus increasingly seem to serve a similar purpose. The symposium will examine whether cross-border cyberattacks qualify as acts of war under international law, whether the difficulties of distinguishing civilian and military targets require a special legal regime to govern cyber warfare, and how legislation that has been passed or is currently being considered by the U.S. Congress will affect the international context of such attacks. Are the current legal conventions sufficient to regulate this new kind of warfare? If not, then how should international law account for changing technological capacities? How effective are domestic legislative efforts in addressing the burgeoning foreign threats critical infrastructure institutions in the United States face?

10:00 am  Registration

10:30 am  When is a Virus a War Crime? Targetability and Collateral Damage Under the Law of Armed Conflict:

As cyber attacks have become an increasingly integral tactic for military strategists, they have raised questions for the international legal regime on the conduct of war. Cyber warfare is particularly challenging because cyber attacks designed to disrupt, deny, or degrade enemy military capabilities may simultaneously damage civilian computer systems. Does the law of armed conflict provide sufficient guidance for establishing targetability? Can the destruction of power grids and other critical infrastructure be counted as collateral damage or could they be considered war crimes? Is international humanitarian law capable of governing rapidly developing technology? If not, can it be amended, or is a new legal regime needed?

Speakers

Paul Rosenzweig, Professorial Lecturer in Law, George Washington University

Charles L. Barry, Senior Research Fellow, Center for Technology and National Security Policy, National Defense University

John C. Dehn, Senior Fellow, Rule of Law Center, West Point

Gregory S. McNeal, Associate Professor of Law, Pepperdine University

Moderator: Professor Daniel Schneider, American University School of International Service; Director, Center on Non-traditional Threats and Corruption (CONTAC)

1:15 pm Is Domestic Legislation Sufficient Tool to Battle Foreign Attacks? An Analysis of the Efficacy of Domestic Cyber Security Legislation

In an increasingly interconnected world, critical infrastructure in the United States faces foreign cyber threats at an increasing rate, emphasizing possible vulnerabilities in current security systems. Foreign attacks are particularly concerning because accessibility to critical infrastructure systems puts both the United States government and the civilian population at great risk. Is legislation like the Cyber Intelligence Sharing Protection Act or the cyber security bills being considered by the U.S. Congress effective in targeting the risk of foreign attack on critical infrastructure institutions, such as power grids, gas pipelines, and the banking sector, which are prime targets for cyber attacks? If not, should more regulatory efforts be considered or are companies in the business of managing critical infrastructure capable of maintaining their own standards that are effective in combating foreign attacks?

Speakers

Michelle Richardson, Legislative Counsel, American Civil Liberties Union, Washington Legislative Office

Jamil Jaffer, Senior Counsel, House Permanent Select Committee on Intelligence

Catherine Lotrionte, Director, Institute for International Law, Science and Global Security

Moderator: Professor Melanie Teplinsky, American University Washington College of Law

TempleLogo

On November 7th at 12pm at Temple University School of Law, I will be making a presentation entitled Kill-Lists and Accountability, based on my identically titled paper.  The abstract of the paper appears below:

This paper examines the U.S. practice of targeted killings. It proceeds in two parts, the first part is an empirical description of the process of targeted killings. Based on qualitative empirical research conducted pursuant to proven case study techniques, part one describes how kill-lists are created, what government actors approve the name of individuals to be added to kill lists, how targeted killings are executed, and how the U.S. implements its International Humanitarian Law obligation to mitigate and prevent harm to civilians.

Specifically, the paper explains in rich detail the process the U.S. follows to estimate and mitigate the impact of conventional weapons on collateral persons and objects in most targeted killings. Key Findings: In pre-planned operations the U.S. follows a rigorous collateral damage estimation process based on a progressively refined analysis of intelligence, weapon effects, and other information. When followed, this process dramatically reduces the amount of collateral damage in U.S. operations, and also ensures high levels of political accountability. However, due to the realities of combat operations, the process cannot always be followed; Data about the U.S. military’s collateral damage estimation process reveals that the system is intended to ensure that there will be a less than 10 percent probability of serious or lethal wounds to non-combatants; In actuality, less than 1% of pre-planned operations that followed the collateral damage estimation process resulted in collateral damage; When collateral damage has occurred, 70% of the time it was due to failed “positive identification” of a target. 22% of the time it was attributable to weapons malfunction, and a mere 8% of the time it was attributable to proportionality balancing – e.g. a conscious decision that anticipated military advantage outweighed collateral damage; According to public statements made by U.S. government officials the President of the United States or the Secretary of Defense must approve any pre-planned ISAF strike where 1 civilian casualty or greater is expected.

In the second part of the paper, I turn from the empirical to the normative. I describe the various mechanisms of accountability embedded in the targeted killing process. Specifically, I set forth an analytical framework which allows for the examination of legal, political, bureaucratic, and professional mechanisms of accountability. I then assess the strengths and weaknesses of these four accountability mechanisms as applied to U.S. targeted killings. The paper concludes by suggesting legal and policy reforms to address the shortcomings identified in the normative section. 

In an act of sheer idiocy, Mayor Michael Bloomberg decided that the New York City Marathon should still be held, despite the fact that the city is struggling to recover from “Superstorm Sandy.” We’re talking about a city where children are dumpster diving for food, but somehow Mayor Bloomberg thinks an event where out of town runners trot through the city while they are handed free bananas, energy bars and water is a good idea?

A marathon, while Staten Island Borough President James Molinaro is pleading for help from the Red Cross and other volunteer organizations. Where are the volunteers? Well, they are descending on New York City for a race that has been described in ordinary times as a “grueling feat of logistics.” It’s an event that requires dozens of medical volunteers to tend to runners and hundreds of police to close roads and direct traffic.

Aren’t these the exact people we want focused on the victims of Sandy?

How can this sporting event possibly be the right thing for the people of New York?

READ THE FULL PIECE AT FORBES

UWLogo

On Thursday November 1st, at 12 noon I will be making a presentation entitled Drones on the Homefront: Privacy at Risk?  This presentation is based on my paper Drones and Privacy Governance, a short abstract of that paper appears below. 

Unmanned systems (drones) and other technological innovations raise serious questions about modern conceptions of privacy. This paper examines the constitutional doctrine related to aerial surveillance and technology, and finds that current doctrine is unlikely to prevent the use of unmanned systems. The paper next addresses calls to create a statutory requirement that will subject the use of unmanned systems to the warrant requirement. These calls are rejected because they fail to protect privacy, while unnecessarily hampering legitimate law enforcement efforts. To best protect privacy, the paper suggests various mechanisms of democratically centered privacy governance, and a regulatory regime to govern the use of unmanned systems. The paper’s appendix includes a model bill appropriate for adoption by cities, states, and the federal government. The bill outlines the various privacy governance measures discussed in the body of the paper.