National Security vs. International Law

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.

The Law of Cyber Warfare: Can The Current Legal Regime Hack It?

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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

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:

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Emerging Issues in International Humanitarian Law: Santa Clara Law

On Friday February 3 and Saturday February 4th the Santa Clara Law school will host a symposium on International Humanitarian Law.  I will be serving as a moderator for Panel 3.  The full schedule appears below, and more information about the symposium can be found here.

The 2012 Santa Clara Journal of International Law Symposium- Emerging Issues in International Humanitarian Law

Friday, February 3 and Saturday, February 4, 2012

HOSTED BY:
Santa Clara University School of Law
Santa Clara Journal of International Law
Center for Global Law & Policy

Symposium Schedule

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TELEFORUM- Collateral Damage in Combat Operations 3pm ET TODAY

 

 

   
Collateral Damage in
 
Combat Operations

A Teleforum Sponsored by the International & National Security Law Practice Group

 

Featuring Professor Gregory S. McNeal*
Pepperdine University School of Law
 

Tuesday, January 17, 2012

at 3:00 p.m. (EST)

888-752-3232

 

No registration is necessary.

 

To participate in this practice group Teleforum, please dial 888-752-3232 on Tuesday at 1:00 p.m. (EST) via telephone.
Professor Gregory McNeal will discuss how the U.S. military implements its International Humanitarian Law obligation to mitigate and prevent harm to civilians during combat operations. He will describe the process the U.S. military follows to estimate and mitigate the impact of conventional weapons on collateral persons and objects in most pre-planned military operations involving air-to-surface weapons and artillery. 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.

You can read Professor McNeal’s recent paper on this topic by clicking here.

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

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

Now 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.

Other contributors to the book Targeted Killing: Law and Morality in an Asymmetrical World (Oxford 2012) appear in the Table of Contents below.  For more on this issue, see my article Kill-Lists and Accountability.

INTRODUCTION Andrew Altman

PART I: THE CHANGING FACE OF WAR: TARGETING NON-COMBATANTS

  1. Rebutting the Civilian Presumption: Playing Whack-A-Mole Without a Mallet? Colonel Mark “Max” Maxwell
  2. Targeting Co-belligerents Jens David Ohlin
  3. Can Just War Theory Justify Targeted Killing? Three Possible Models Daniel Statman
  4. Justifying Targeted Killing With a Neutral Principle? Jeremy Waldron

PART II: NORMATIVE FOUNDATIONS: LAW-ENFORCEMENT OR WAR?

  1. Murder, Combat or Law Enforcement Jeff McMahan
  2. Targeted Killing as Preemptive Action Claire Finkelstein
  3. The Privilege of Belligerency and Formal Declarations of War Richard V. Meyer

PART III: TARGETED KILLING AND SELF-DEFENSE

  1. Going Medieval: Targeted Killing, Self-Defense, and the Jus ad Bellum Regime Craig Martin
  2. Imminence in Justified Targeted Killing Russell Christopher
  3. Defending Defensive Targeted Killings Phillip Montague

PART IV: EXERCISING JUDGMENT IN TARGETED KILLING DECISIONS

  1. The Importance of Criteria-Based Reasoning in Targeted Killing Decisions Amos N. Guiora
  2. Are Targeted Killings Unlawful? A Case Study in Empirical Claims without Empirical Evidence Gregory S. McNeal
  3. Operation Neptune Spear: Was Killing Bin Laden a Legitimate Military Objective? Kevin H. Govern
  4. Efficiency in Bello and ad Bellum: Making the Use of Force Too Easy? Kenneth Anderson

PART V: UTILITARIAN TRADE-OFFS AND DEONTOLOGICAL CONSTRAINTS

  1. Targeting in War and Peace: A Philosophical Analysis Fernando R. Tesón
  2. Targeted Killings and the Morality of Hard Choices Michael S. Moore
  3. Targeted Killing and the Strategic Use of Self-Defense Leo Katz

 

 

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.

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The bin Laden Aftermath: Why Obama Chose SEALs, Not Drones

foreignpolicy

I’m reposting (with permission) a piece that was just published by Foreign Policy magazine entitled The Bin Laden Aftermath: Why Obama Chose SEALs, Not Drones.

Why did the United States choose to launch a raid against al-Qaeda leader Osama bin Laden’s compound in Abbottabad, Pakistan, rather than bombing it?  It wasn’t because of a “law enforcement mindset.”  And it wasn’t compelled by human rights law.  Rather, it was the best option based on the military objectives, available intelligence, and the law of armed conflict.

On the one hand, practical considerations dictated this riskier kind of raid.  The United States needed to have a body to prove, once and for all, that the hard-to-kill Bin Laden was in fact dead.  The recent media fascination with whether the U.S. will release photos of his body lends credence to this concern.

A second issue prompting the raid was that the Obama administration was worried about collateral damage.  This problem is more serious than some may initially suspect.  Abbottabad is a heavily populated city, with nearly 1 million residents.  Moreover, numerous civilian residences and the Pakistani military academy were near bin Laden’s “drone-proof compound.” There’s little doubt that the risks to nearby residents certainly weighed on the minds of senior policymakers and President Obama.  The matter of collateral damage alone, though, may not have been enough to tip the scales away from a bombing operation.

Instead, the issue may have been the uncertainty over whether Bin Laden was even in the compound.  Nation-states are simply not permitted to  drop bombs in the hope they will kill the right person; they need to be reasonably certain they are attacking the right target.  That fact leads us to the legal concerns that may have necessitated a raid rather than a bombing operation.

The Requirement to Positively Identify a Target

Most contemporary discussions of collateral damage skip the threshold legal question likely posed by the Obama administration, namely whether bin Laden or some other lawful military target was actually inside the compound.  Unless that question could be answered to a reasonable degree of certainty, any bombing operation would have been unlawful, even with no or minimal collateral damage to surrounding persons and objects.

This reality flows from the principle of distinction, (or “positive identification” in U.S. military parlance) a fundamental tenet of the law of armed conflict.  Armed forces are required to “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”  Positive identification, according to U.S. policies, requires that commanders know with reasonable certainty that “a functionally and geospatially defined object of attack is a legitimate military target.”  In short, directing attacks against civilians (in this context, non-uniformed personnel) is not permitted, unless they are directly participating in hostilities.

 

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Conference: Is Targeted Killing Permissible?: Philosophical, Moral, and Legal Aspects Friday, April 15th and Saturday, April 16th, 2011

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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.

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