Law and Public Policy

Vanderbilt Law School Hosting Kill-Lists and Accountability Presentation

Nashville, TN Kill-Lists and Accountability to be presented on Wednesday October 10, 2012 at Vanderbilt University School of Law.

I will be presenting my paper Kill-Lists and Accountability, the abstract for 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.  For more on this issue, see my article Kill-Lists and Accountability.

 

Standard
Law and Public Policy

The U.S. Practice of Collateral Damage Estimation and Mitigation

I’ve posted to SSRN (http://bit.ly/collateraldamage1) the abstract for my piece entitled The U.S. Practice of Collateral Damage Estimation and Mitigation.  Here are the details:

This paper explains how the U.S. military estimates and mitigates the impact of conventional weapons on collateral persons and objects in most military operations involving air-to-surface weapons and artillery. It is the descriptive part of a larger work discussing the normative implications of U.S. targeting practices.

In recent years, an entire body of academic literature and policy commentary has been based on an incomplete understanding of how the U.S. conducts military operations. The literature is incomplete because U.S. practices are shrouded in secrecy and largely inaccessible. As a result commentators have lacked a descriptive foundation to analyze and critique U.S. operations. Their writings have focused on easily describable issues such as whether a target was a lawful military objective, and then typically shift attention to the question of proportionality balancing and collateral damage.

These commentators skip an important aspect of actual practice – the scientifically grounded mitigation steps followed by U.S. armed forces. Those mitigation steps are designed to ensure a less than 10% probability of collateral damage resulting from any pre-planned operation. This paper’s description differs from the general and incomplete approach currently found in scholarship and more accurately describes the reality of modern operations. In those operations U.S. armed forces follow rigorous steps prior to engaging in any proportionality balancing.

This paper is intentionally descriptive and explanatory; it makes a contribution to theory by providing a qualitative empirical account (based on public documents and field interviews) that explains for the first time in scholarly literature the process of collateral damage estimation and mitigation as practiced by the U.S. military. While this paper will be especially useful for those seeking to understand how collateral damage is estimated in targeted killing operations, the paper’s relevance is not limited to the context of targeted killings.

Key Findings:

 

 

Continue reading

Standard
Law and Public Policy

Zarein Ahmedzay Pleads Guilty to Terror Violations in Connection with Al-Qaeda New York Subway Plot

The Justice Department announced Zarein Ahmedzay, a U.S. citizen and resident of Queens, N.Y., pleaded guilty today in the Eastern District of New York to terrorism violations stemming from, among other activities, his role in an al-Qaeda plot to conduct coordinated suicide bombings on New York’s subway system in September 2009.

At a hearing this afternoon before Chief U.S. Magistrate Judge Steven M. Gold, Ahmedzay, 25, pleaded guilty to the following violations: conspiracy to use a weapon of mass of destruction (explosive bombs) against persons or property in the United States; conspiracy to commit murder in a foreign country; and providing material support to a foreign terrorist organization, namely al-Qaeda. Ahmedzay faces a sentence of up to life in prison.

Ahmedzay was first indicted on Jan. 8, 2010, in the Eastern District of New York on charges of making false statements to the FBI about his travels to Pakistan and Afghanistan. On Feb. 25, 2010, he was charged in a superseding indictment in the Eastern District of New York with conspiracy to use weapons of mass destruction; conspiracy to commit murder in a foreign country; providing material support to al-Qaeda; receiving military-type training from al-Qaeda; and making false statements.

‘The facts disclosed today add chilling details to what we know was a deadly plot hatched by al-Qaeda leaders overseas to kill scores of Americans in the New York City subway system in September 2009,’ said Attorney General Eric Holder. ‘This plot, as well as others we have encountered, makes clear we face a continued threat from al-Qaeda and its affiliates overseas. With three guilty pleas already and the investigation continuing, this prosecution underscores the importance of using every tool we have available to both disrupt plots against our nation and hold suspected terrorists accountable.’ Continue reading

Standard