Law and Public Policy

Kill-Lists and Accountability at Temple Law

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On November 7th at 12pm at Temple University School of Law, I will be making a presentation entitled Kill-Lists and Accountability, based on my identically titled paper.  The abstract of 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. 

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Law and Public Policy

America’s Reach: The Constitutionality of Targeted Killing

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.

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Law and Public Policy

Does the NDAA Permit the Detention of U.S. Citizens?

On Tuesday, April 3, 2012 I will be participating in a debate at The University of Houston Law Center.  I’ve posted details from the flyer below.

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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

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:

 

 

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Law and Public Policy

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

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“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

Harold Koh- U.S. Government Position on Legality of Drones, UAV’s, and Targeted Killings

At the recent American Society of International Law meeting, State Department Legal Advisor Harold Koh delivered a public speech addressing the U.S. position on the use of lethal force against suspected terrorists.

Predator Drone (Air Force Photo)

Predator Drone (Air Force Photo)

In particular he addressed the use of Unmanned Aerial Vehicles (UAV’s such as Predator and Reaper drones), and addressed the question of whether their use amounts to assassination.  This is a lengthy post, so click to continue reading below.

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