The Emerging Trends in Modern Warfare conference will consist of two panels discussing different changes that are happening in the ways the United States military operates. The first panel focuses on the practical operational considerations that are necessary when people from the military, law enforcement, and intelligence communities work together and how this convergence is actually working in the field. The second panel focuses on the Constitutional, International Humanitarian Law, and Law of Armed Conflict issues that arise when these components operate together overseas.
Sept. 21, 2012 from 9 a.m. to 3 p.m. Registration begins at 8:30 a.m.
Seminar rooms 4 and 5 (S-4 and S-5). University of the Pacific, McGeorge School of Law 3200 Fifth Ave. Sacramento, CA 95817 Map & Directions
- General Admission — $20
- MCLE Credit (Pacific McGeorge Alumni) — $25
- MCLE Credit (non-Alumni) — $40
- Students and Pacific McGeorge Faculty — Free
- Register & Pay
For more information, please call 916.739.7138 or send an email to firstname.lastname@example.org.
|8:30 to 9 a.m.
||Breakfast & Registration
|9:15 a.m. to 9:30 a.m.
|9:30 a.m. to 11:30 a.m
||Panel 1: The Operational Convergence Between the Military, the Intelligence Community, and Law Enforcement
- Herb Brown, Special Agent in Charge, Federal Bureau of Investigation
- Dana Dyson, Deputy Chief, CIA Office of General Counsel’s Operations Division
- James Schmidli, Deputy General Counsel for Operations, Defense Intelligence Agency
|11:30 a.m. to 12:30 p.m.
|12:45 p.m. to 2:45 p.m.
||Panel 2: Constitutional and International Legal Challenges Related to Modern Warfare Tactics, Technology, and Practices
- Professor John Sims, University of the Pacific, McGeorge School of Law
- Ms. Anne Quintin, International Committee of the Red Cross
- Professor Gregory McNeal, Pepperdine University School of Law
|2:45 p.m. to 3 p.m.
On Friday, April 6, 2012 I will be participating in a debate at The University of California, Davis School of Law. The topic is “America’s Reach: The Constitutionality of Targeted Killing.” The speech is sponsored by the ACLU and the Federalist Society. For more on this issue, see my article Kill-Lists and Accountability.
In light of the recent news that the CIA has killed al-Awlaki, I thought I’d flag my essay at CATO entitled “The Federal Protective Power and Targeted Killing of U.S. Citizens“
Here is an excerpt:
My reading of the Constitution leads me to believe that there are circumstances when the president may order U.S. citizens to be killed. It may be akin to the facts in al-Awlaki, where one is actively making war against the United States, or it may be in lesser circumstances that threaten the instruments of federal power. Let’s start with a settled example where a killing was authorized to protect the federal government. In Cunningham v. Neagle, 135 U.S. 1 (1890), the Court addressed the killing of a U.S. citizen by Neagle, a federal marshal who was dispatched to protect Justice Field from an anticipated assault. While on a railroad dining car, the assault occurred (as expected) and Neagle reacted by killing the assailant with two pistol shots; Neagle was subsequently arrested on homicide charges and held for trial. The question the Court addressed was whether Neagle, acting upon orders but not a statute, had authority to kill a man in defense of Justice Field. The Court found that Neagle was acting pursuant to lawful authority, because the President was entitled to authorize protection for a sitting Supreme Court Justice. Justice Miller wrote:
That there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of California; are questions too clear to need argument to prove them.
While the Court characterized the questions as “too clear to need argument to prove them” this was in fact the first time the Court ever articulated what was long thought to exist—a federal protective power. The Court went on to explain that the structure of the Constitution itself suggested there was an inherent executive power to protect federal officers in the discharge of their duties.
Neagle was reinforced five years later in In re Debs, 158 U.S. 564 (1895), a case involving the attorney general’s attempts to prohibit interference with interstate commerce. In Debs the Court noted that the president was acting on inherent powers embedded in the Constitution and existing statutes, both of which allowed him to act as the primary agent of the national government to “prevent any unlawful and forcible interference” with interstate commerce. The Court went on to state that the president could use “the entire strength of the nation” including “the army of the Nation, and all its militia” to protect interstate commerce. Moreover, the Court cited numerous English and state authorities for the proposition that “when the choice is between redress or prevention of injury by force and by peaceful process, the law is well pleased if the [Executive] will consent to waive his right to the use of force and await [the law’s] action,” (emphasis mine) but such waiver is not constitutionally required. The import of Neagle and Debs is perhaps best summarized by the dissent in the Steel Seizure case, “[t]he Executive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government.”
Read the whole thing here, and contributions from others here. For more on this issue, see my article Kill-Lists and Accountability.
The top military official involved in the raid that killed Osama bin Laden said Tuesday that the Obama administration has no clear plan for handling suspected terrorist leaders if they are caught alive outside a war zone.
Vice Adm. William H. McRaven told a Senate panel that contingency plans for detaining terrorism suspects are developed on an ad hoc basis and approved by the White House, but that there are no set rules. “That is always a difficult issue for us,” he testified. “No two cases seem to be alike.”
Over at Lawfare Bobby Chesney summarizes the testimony as follows:
Afghanistan is off the table in light of the host-state resistance to being the locus of long-term detention for extra-theater detainees such as al Qaeda’s senior leadership, but GTMO remains foreclosed as well. What then would happen if tomorrow we had actionable intelligence on Zawahiri’s location, found him somewhere in Pakistan, and managed to nab him through some daring JSOC/CIA TItle 50/10 snatch-and-run operation? Presumably it would be back to the USS Carl Vinson or some other such vessel for the short term. But for the long term?
Bobby then proposes two possible solutions, both of which he rightly concludes would face political opposition. The likely scenario for the future? We’ll probably continue to stay stuck in the status quo, denying that we need a detention solution (as Ben Wittes points out in Detention and Denial). The status quo will endure until in some future conflict or future detention scenario we realize we are out of options, then we will be scrambling to find a solution.
The University of Pennsylvania Institute for Law & Philosophy along with the Jean Beer Blumenfeld Center for Ethics of Georgia State are sponsoring: Is Targeted Killing Permissible? Philosophical, Moral and Legal Aspects on Friday, April 15th and Saturday, April 16th, 2011. Here is the conference description:
The Obama administration has authorized the CIA to target and kill Anwar al-Aulaqi, a radical Muslim cleric believed to have ties to al-Qaeda, on the ground that he helped to orchestrate attacks against the United States. The authorization raises the interesting question of who is a legitimate target of such military actions. In particular, it is arguably difficult to think of al-Aulaqi as a belligerent against the U.S., as he is himself an American citizen. Al-Aulaqi, however, is not the only person whose identification as a legitimate target raises moral and legal complications. The U.S. and other governments have been targeting and killing many others as part of both the fight against Islamic terrorists and the wars in Iraq and Afghanistan, and the widespread use of this technique raises important questions in just war theory. Notable as well is the fact that the U.S. has been targeting suspected militants with unmanned aerial drones, sophisticated military planes controlled remotely from distant lands.
The questions the conference will explore fall into four rough categories. First is a series of basic questions identifying the activity and its parameters: What is targeted killing in a military context and what is the theory under which such killings may be permissible? If targeted killing is ever permissible, what is the range of permissible targets? Should targets be restricted to belligerents only? Or are there individuals who, as civilians nevertheless make themselves into legitimate targets by threatening central interests of the United States? A second set of issues has to do with authority and responsibility: Who is permitted to carry out targeted killings? Do private contractors take on the mantle of military justification when they act on behalf of military officials? Is the justification for engaging in a targeted killing one person may have as an official defender of the country transferrable to a civilian assister? Most importantly, what is the responsibility of actors who carry out targeted killings that miss their mark? If moral and legal mistakes are made, do the resulting acts of assassination count as war crimes? A third set of issues has to do with the manner in which targeted killings are carried out: Is it morally relevant that remote-controlled machines are used to attack targets? If so, is preemptive killing nevertheless legitimate if performed by a droid? And if so, what is the permissible scope of preemptive killing conducted in this way? A fourth set of issues attempts to penetrate the theory of targeted killing by comparing it to other areas of the law: What is the relation between targeted killing and self-defense? Does societal self-defense follow parallel principles to personal self-defense? And finally, what is the status of targeted killing according to traditional just war theory and international law? These questions arise at the intersection of moral, political, and legal theory, just war theory, national security law, and international law, as well as criminal and constitutional law and theory.
Click “Read the full entry” below to see the participant list and suggested background reading.
Yemeni based Al Qaeda on the Arabian Peninsula is a greater threat to the United States than the main Al Qaeda group located in Pakistan.
According to a CIA report, summarized by The Washington Post the increasing threat posed by AQAP “has helped prompt senior Obama administration officials to call for an escalation of U.S. operations there – including a proposal to add armed CIA drones to a clandestine campaign of U.S. military strikes, the officials said.”