Lawfare on my Targeting and Collateral Damage Article


Ben Wittes, writing at Lawfare was kind enough to pen a write-up on my empirical paper The U.S. Practice of Collateral Damage Estimation and Mitigation.  I consider this a high honor.  Here is Ben’s take:

Whatever your view of the merits of targeted killing, this article, in my view at least, will enrich your understanding of the way targeting is done. It should be required reading for anyone participating in the many debates surrounding targeted killing. While it deals only with the military, not the CIA, and only with strikes that are reviewed in advance–and thus does not present a complete picture of U.S. targeting practices–it does give a rich sense of the methodological care and seriousness with which the military approaches the problem of collateral damage.

Check out the full post here.

For more on this issue, see my article Kill-Lists and Accountability.



What the Future Holds: Balancing Law, Liberty and National Security

On Friday November 4, 2011 The Florida International Law Review will host their Fall 2011 Symposium.  The topic is What the Future Holds: Balancing Law, Liberty and National Security.  I will be participating in Panel III- Looking Back to Shape the Future: How Foreign Policy will Affect Law, Liberty and National Security.

Here is the symposium teaser:
The rise of transnational terrorism and evolving threats to the national security of the United States has forced remarkable changes in United States foreign and domestic policy. The United States’ various strategies and policies for coping with these threats are celebrated by some and rejected by others. This symposium will focus on the law as well as related policy, political, and societal implications of national security policy. How do we balance liberty and individual freedoms with national security in today’s America? Where do we go from here?

The full schedule appears after the break.


Bush v. Obama on Counterterrorism Policy

On Tuesday, October 4th I will be part of a panel at Mercer University School of Law.  The panel discussion will explore the differences between President Obama and President Bush’s national security policies, specifically as they relate to counterterrorism.  Some issues we will explore are:

  1. Commentary on how successful the current program has been in achieving its objectives
  2. Changes that might need to be implemented to make the terror policy more effective and/or efficient
  3. Specific weaknesses that make the program less effective than it might otherwise be
  4. The continued viability, legality, and future of holding terror suspects at Guantanamo Bay and even other “black sites” in some European nations
  5. How do we balance the needs to secure ourselves with the freedoms we enjoy as citizens.

The Constitutionality of Killing al-Awlaki

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.

Technology & Learning Faculty Conference: Increasing Student Engagement and Measuring Learning with Clickers


On September 14, 2011 Pepperdine University will be hosting its Inaugural Technology & Learning Faculty Conference.  I will be presenting on Increasing Student Engagement and Measuring Learning with Clickers.

Here is an excerpt from the program:

Professor of Law Gregory McNeal is no novice to teaching with technology. Professor McNeal, who teaches in a traditional lecture style, talks about using clickers to gain feedback from students and engage with them in the classroom. In this session you will experience what his students experience as he takes you through a lesson focused on the-beyond-a-reasonable-doubt standard in a homicide case. This interactive presentation will demonstrate how clicker technology facilitates learning and critical thinking, and allows for immediate assessment. If you are interested in using clickers in your classroom, you should consider attending this session.


My presentation will demonstrate the use of Turning Technologies clickers (pictured at right).

The full agenda appears below:





Terrorism & Counterterrorism Since the Attack

Today at Chapman University School of Law I will be presenting at an event entitled “9/11 Ten Year Anniversary: Terrorism & Counter-Terrorism Since the Attack.”  The event will begin at 11:45am in Room 142 and is sponsored by the Federalist Society.

From the promotional materials:

Gregory S. McNeal, legal scholar and specialist in terrorism and homeland security, will be discussing the decade since 9/11, reviewing U.S. policies as they have developed in response to and in anticipation of a dynamic and interconnected world rife with terrorist threats. We will also explore possible reasons why there have been no successful, major, sophisticated terror attacks on U.S. soil since 9/11

Targeted Killing of U.S. Citizens and the Federal Protective Power

Al Awlaki targeted killing gsmcneal comMy essay The Federal Protective Power and Targeted Killing of U.S. Citizens is now available at The essay is a response to Ryan Alford’s interesting historical piece entitled Sentence First, Verdict Afterwards a shorter version of his lengthier law review article The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens. His claim, roughly summarized, is that the history of the founding and the Constitution’s “forgotten clauses” amount to a due process guarantee which prohibits the president from targeting U.S. citizens who take up arms against the United States. In Alford’s view, any citizen who joins the fight with the nation’s enemies cannot be killed; rather he must be convicted by an Article III court on the testimony of two witnesses to his overt act of treason. In my response I argue that Alford’s arguments against targeted killing are thorough, yet unconvincing.

Here are some excerpts:

Under [Alford’s] view of the Constitution, al-Awlaki could be standing on the White House steps with an RPG, and under Alford’s reasoning his killing would be prohibited (absent the due process protections Alford believes are compelled by the Attainder and Treason Clauses). Surely the Constitution does not require this level of deference to citizenship and such stringent limitations on federal action. Either there are some circumstances under which the President may order a U.S. citizen killed—in which case much of Alford’s historical argument is incorrect—or al-Awlaki with an RPG cannot be killed, and U.S. presidents have been behaving unconstitutionally for centuries. 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. * * * * Alford cites many historical sources for the idea that the Founders believed citizens should not be arbitrarily deprived of their lives without due process. That notion though, must also recognize that the Founders felt that a key role of government was to ensure that citizens were equally protected from external harms. Security of one’s person and property was a principle emanating from the doctrines of Hobbes and Locke, both of whom influenced the judgment of the Founders. Furthermore, as the Court noted in Neagle, the protective power is an “obligation, inferable from the Constitution, of the government to protect the rights of an American citizen against foreign aggression.” As we know from the al-Awlaki case, that foreign aggression may come in the form of an American citizen directing attacks against the entirety of the United States. When such attacks occur, it falls on the president to embody the “great object and duty of Government [which] is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving.” Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186)(C.C.S.D.N.Y. 1860).

My response essay was preceded by a response essay written by John Dehn and will be followed by a response essay written by Carlton Larson. The full colloquy can be found here.

Report of the Global Commission on Drug Policy

The Global Commission on Drug Policy has released their report in which they declare the war on drugs (in America and around the world) a failure. In their words:

The global war on drugs has failed, with devastating consequences for individuals and societies around the world. Fifty years after the initiation of the UN Single Convention on Narcotic Drugs, and 40 years after President Nixon launched the US government’s war on drugs, fundamental reforms in national and global drug control policies are urgently needed.

Vast expenditures on criminalization and repressive measures directed at producers, traffickers and consumers of illegal drugs have clearly failed to effectively curtail supply or consumption. Apparent victories in eliminating one source or trafficking organization are negated almost instantly by the emergence of other sources and traffickers. Repressive efforts directed at consumers impede public health measures to reduce HIV/AIDS, overdose fatalities and other harmful consequences of drug use. Government expenditures on futile supply reduction strategies and incarceration displace more cost-effective and evidence-based investments indemand and harm reduction.

Read the full report here.