Law and Public Policy

Are Targeted Killings Unlawful? A Case Study in Empirical Claims Without Empirical Evidence

Targeted Killing.pngNow available on SSRN is my newest piece, Are Targeted Killings Unlawful?  A Case Study in Empirical Claims Without Empirical Evidence.  In the piece I argue that critics of the U.S. policy of targeted killing by unmanned aerial vehicles (UAVs or drones) generally lack credible information to justify their critiques. In fact, in many circumstances their claims are easily refuted, calling into question the reliability of their criticisms.  I highlight some of the most striking examples of inaccurate claims raised by critics of the U.S. policy of drone based targeted killing. Specifically, I offer a much needed corrective to clarify the public record or offer empirical nuance where targeted killing critics offer only unsubstantiated and conclusory statements of fact and law.

Section I discusses the decision protocol used by the U.S. military before launching a drone strike, a process that goes to extraordinary lengths to minimize civilian casualties. Although this decision protocol was once secret, recent litigation in federal court has resulted in the release of extensive information regarding U.S. targeting protocols. An analysis of this information indicates that the U.S. military engages in an unparalleled and rigorous procedure to minimize, if not eliminate entirely, civilian casualties. Although independent empirical evidence regarding civilian casualties is hard to come by, it is certainly the case that statistics proffered by some critics cannot be empirically verified; their skepticism of U.S. government statements is not backed up by anything more substantial than generic suspicion.

Section II addresses the critics’ unsubstantiated claims about the legal, diplomatic and strategic results of drone strikes. Although the counter observations I raise do not, by themselves, demonstrate that targeted killings are morally or legally justified, they do however suggest that some of the moral or legal objections to targeted killings are based on empirical claims that are either dubious, impossible to verify, or just plain false.  For more on this issue, see my article Kill-Lists and Accountability.

Other contributors to the book Targeted Killing: Law and Morality in an Asymmetrical World (Oxford 2012) appear in the Table of Contents below:

Continue reading

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Law and Public Policy

New Approaches to Reducing and Mitigating Harm to Civilians

I just posted to SSRN the abstract for my chapter New Approaches to Reducing and Mitigating Harm to Civilians which will appear in the Oxford University Press book, Shaping a Global Legal Framework for Counterinsurgency: New Directions in Asymmetric Warfare (William C. Banks ed., 2012).  The abstract appears below.

The wars in Iraq and Afghanistan highlighted the strategic importance of the U.S. commitment to civilian protection. Both wars were eventually fought as a counterinsurgency (COIN) and both revealed how protecting civilians is a central feature of COIN. This chapter examines the importance of civilian casualty mitigation in U.S. counterinsurgency operations, it describes the theoretical and practical lessons learned regarding civilian casualties and situates them in a broader strategic context. The chapter also describes the U.S. military’s newest doctrinal publication aimed specifically at preventing and mitigating harm to civilians.

The chapter concludes noting that protecting the population and winning hearts and minds are well known central planks in counterinsurgency theory. However, achieving these goals is oftentimes harder said than done, especially when the reality of modern operations is a transparent conflict environment in which enemy forces will seek to purposefully cause harm to civilians, and exploit such harm for their own ends. Based on America’s experiences in Iraq and Afghanistan, the U.S. military has created the world’s first manual directed at preventing and mitigating harm to civilians in combat. As the discussion in this chapter highlights, the manual is merely the first step in cataloging and sharing lessons learned.

Effective civilian casualty mitigation in counterinsurgencies and other operations will require sustained efforts on the part of the military to act in a way that may exceed the baseline requirements of the law of armed conflict. Ample evidence –ranging from restrictive rules of engagement to a consistent focus on “lessons learned”– suggests the U.S. military is already exceeding the requirements of the law of armed conflict. Such actions may not placate critics of U.S. operations, but it may go a long way toward laying the foundation for success in counterinsurgency operations.

For more about the CIVCAS Mitigation manual see Spencer Ackerman’s post Army Writes New Manaul on Preventing Civilian Deaths here.

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Law and Public Policy

“Kill Capture”: A live chat with PBS’ Frontline

PBS Frontline Kill Capture Afghanistan.png

“Kill Capture”: A live chat with PBS’ Frontline:  Tonight, PBS Frontline is airing ‘Kill/Capture,’ a six-month investigation into the U.S. military’s program of targeted killings in Afghanistan. The military says these raids have taken some 12,000 insurgents off the battlefields of Afghanistan over the last year, and represent a crucial part of the U.S. strategy in the country. Afghan government officials, Afghan communities, and human rights groups, on the other hand, have objected to the raids on the grounds that they alienate the local population and are unduly harsh. The question is: will the kill/capture missions help end the war in Afghanistan?

(Via The AfPak Channel.)

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Law and Public Policy

The Significance of Bin Laden’s Killing

The killing of Osama Bin Laden is no doubt a significant victory in the conflict with al Qaeda (see Michael Lewis’ post here).  However, contrary to Peter Bergen’s assertion that “Killing bin Laden is the end of the war on terror. There is no one to replace him in Al Qaeda. Bin Laden was the guy who fought against the Soviet Union and the United States. No one in the network is like that..” I’m not convinced.

But don’t take my word for it, the jihadist’s are not convinced either, just consider what they are saying in the jihadist forums:

  • “We were not fighting for Osama. We were fighting for Allah. The Jihad will continue even if the Amir [leader] is Shaheed [martyred]!!”
  • “Those who fought for shaykh usaamah, know that shaykh usaamah has passed away, but those who fought for Allaah, know that Allaah is alive and will never die”.

  • “a million new bin Ladens will be born! And the flag of jihad will be raised! Inshallah”.

The President declared in his speech that killing Bin Laden was his top priority upon taking office, this differs a bit from his statements on January 15, 2009, when he noted that killing Bin Laden wasn’t essential, rather keeping al Qaeda on the run was the key to strategic success.  The linked story admittedly notes the importance placed on capturing or killing Bin Laden, but it’s set in a broader strategic context that required placing pressure on the entire al Qaeda network.  That network, despite the killing of Bin Laden, still exists.

As Jason Burke noted in a 2004 piece for Foreign Policy entitled Think Again: Al Qaeda (firewalled):

“Capturing or Killing Bin Laden Will Deal a Severe Blow to Al Qaeda”

Wrong. Even for militants with identifiable ties to bin Laden, the death of the “sheik” will make little difference in their ability to recruit people. U.S. Secretary of Defense Donald Rumsfeld recently acknowledged as much when he questioned in an internal Pentagon memo whether it was possible to kill militants faster than radical clerics and religious schools could create them. In practical terms, bin Laden now has only a very limited ability to commission acts of terror, and his involvement is restricted to the broad strategic direction of largely autonomous cells and groups. Most intelligence analysts now consider him largely peripheral.

This turn of events should surprise no one. Islamic militancy predates bin Laden’s activities. He was barely involved in the Islamic violence of the early 1990s in Algeria, Egypt, Bosnia, and Kashmir. His links to the 1993 World Trade Center attack were tangential. There were no al Qaeda training camps during the early 1990s, although camps run by other groups churned out thousands of highly trained fanatics. Even when bin Laden was based in Afghanistan in the late 1990s, it was often Islamic groups and individuals who sought him out for help in finding resources for preconceived attacks, not vice versa. These days, Islamic groups can go to other individuals, such as Jordanian activist Abu Musab al-Zarqawi, who set up his al Tauhid group in competition with bin Laden (rather than, as is frequently claimed, in alliance with him) to obtain funds, expertise, or other logistical assistance.

Bin Laden still plays a significant role in the movement as a propagandist who effectively exploits modern mass communications. It is likely that the United States will eventually apprehend bin Laden and that this demonstration of U.S. power will demoralize many militants. However, much depends on the manner in which he is captured or killed. If, like deposed Iraqi President Saddam Hussein, he surrenders without a fight, which is very unlikely, many followers will be deeply disillusioned. If he achieves martyrdom in a way that his cohorts can spin as heroic, he will be an inspiration for generations to come. Either way, bin Laden’s removal from the scene will not stop Islamic militancy.

That Islamic militancy importantly includes other al Qaeda off-shoots such as al Qaeda on the Arabian Peninsula.  In February 2011, Michael Leiter, National Counterterrorism Center Director said in testimony before the U.S. House Homeland Security Committee “I actually consider Al Qaeda in the Arabian Peninsula, with Al-Awlaki as a leader within that organization, is probably the most significant risk to the U.S. homeland.”

I’m hopeful that Bin Laden’s death spells the demise of al Qaeda, but hope alone won’t change the reality of a global movement dedicated to attacking America.  Others may see the same thing, but will attribute it to a “military-industrial complex” that makes money off of wars.  Whatever your root cause explanation, this conflict is probably not ending anytime soon.

Cross-posted at OJ

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Law and Public Policy

Pocket Litter, Intel and the Ground Operation

Beyond confirming that Bin Laden was actually the person killed in Abottabad, what is the significance of troops being on the ground to conduct the Bin Laden Operation?  Can their presence lead us to the new #1 in al Qaeda, Ayman al-Zawahiri?

In the coming days we will likely hear about the gathering of “pocket litter” and other exploitable intelligence and there will probably be some speculation about where that intelligence may lead us.  Given that the U.S. has surveilled the Bin Laden compound for a few months, we likely know quite a bit about the comings and goings of couriers and others who may lead us to Zawahiri.  Moreover, unless this operation was time sensitive (which it doesn’t sound like) we can expect that U.S. forces would not have conducted the operation without already planning for the next operation — the one leading to Zawahiri.  Of course, if we knew where Zawahiri was we would have conducted simultaneous operations.  The fact that we didn’t likely means that we were hoping to exploit intelligence to be found inside the Bin Laden compound.  The value of that intelligence gathered on the objective will determine whether Zawahiri’s days are best measured in weeks, months, or longer.

Cross Posted at OJ

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Law and Public Policy

Chesney on The NY Times Editorial Page and Its Potentially Misleading Account of the Detention Status Quo

Over at Lawfare, Bobby Chesney writes:

In an editorial that ran on Monday, the Times took up the laudable task of defending the administration’s plans to substantially enhance the procedural safeguards associated with the annual review board process for GTMO detainees.  All to the good if you ask me.  Inexplicably, however, the editorial seeks to bolster the case for the proposed changes by giving an utterly misleading impression of the legal status quo at GTMO.  It’s really quite bizarre, though not unprecedented.

The problem is that the editorial seems at pains to depict GTMO and detention policy as things stood circa spring 2004 or earlier.  The detainees are in a ‘legal limbo,’ the editors claim, giving the uninformed reader little reason to suspect the following:

– that detainees have had the right to seek habeas relief in federal court since 2008 (though as I note below the editors do offer an obscure reference in that direction late in the editorial)

– that many detainees have actually prevailed in the habeas process

– that from 2005 to 2008, detainees had a right to judicial review in the D.C. Circuit Court of Appeals (though the process was much less robust than habeas has turned out to be, and though only the Uighurs ever got anywhere under that system as other detainees concentrated on pursuing the right to file habeas petitions)

– and, last but not least, that an annual ‘administrative review board’ system for reconsideration of the need for continued detention already has been operating since 2005, and thus that the issue at hand is whether to substantially enhance the procedures associated with that review rather than invent the idea of annual re-screening from scratch (in fairness, the editors do offer an indirect reference to the existing system mid-way through the editorial).

Judge for yourself by reading the whole thing, and asking what an uninformed reader might assume about the status quo…

(Read the full post at Lawfare.)

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Law and Public Policy

Law Enforcement or Intelligence? Divergent Organizational Goals in US Counterterrorism

GregMcNealICSR

I will be in London today, appearing at the International Center for the Study of Radicalisation at Kings College.  My talk is entitled “Law Enforcement or Intelligence? Divergent Organizational Goals in U.S. Counterterrorism.”

The talk will describe the organizational structure of the U.S. Department of Justice National Security Division, the organization’s relationship with the U.S. Attorney’s Offices and their relationship with FBI field offices.  The talk is interdisciplinary in nature, drawing on studies in organizational theory, public administration, public policy and law.  After describing the organizational structure and relationships I will shift my attention to the normative, analyzing the risks and benefits associated with the U.S. approach.

ICSR is a unique partnership which brings together four great academic institutions: King’s College London; the University of Pennsylvania; the Interdisciplinary Center Herzliya (Israel); and the Jordan Institute of Diplomacy.  The aim and mission of ICSR is to educate the public in relation to diplomacy and strategy, public administration and policy, security and counter-terrorism and international conflict resolution.

ICSR maintains a great blog “FREErad!cals” here.

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