Vanderbilt Law School Hosting Kill-Lists and Accountability Presentation

Nashville, TN Kill-Lists and Accountability to be presented on Wednesday October 10, 2012 at Vanderbilt University School of Law.

I will be presenting my paper Kill-Lists and Accountability, the abstract for 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.  For more on this issue, see my article Kill-Lists and Accountability.


The U.S. Practice of Collateral Damage Estimation and Mitigation

I’ve posted to SSRN ( 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:




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


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.