Law and Public Policy

Drone Rules and Targeted Killing: Huffington Post Live Segment

Today I appeared on Huffington Post Live on a panel discussing rules for the use of drones in targeted killings.  The panel information and video clip appear below.

In anticipation of the election, the Obama administration started working to codify drone policies. Why did they wait so long and what might the rules look like?  Originally aired on November 27, 2012

Hosted by:
GUESTS:

  • Josh Hersh (Washington, DC) HuffPost Foreign Policy Correspondent @joshuahersh
  • Hina Shamsi (New York, NY) Director of the National Security Project at the American Civil Liberties Union. @hinashamsi
  • Gregory S. McNeal (Malibu) Professor, Pepperdine University @gregorymcneal

 

http://embed.live.huffingtonpost.com/HPLEmbedPlayer/?segmentId=50b3bde302a76052b7000051

Standard
Law and Public Policy

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.

Standard
Law and Public Policy

Army Publishes New Manual on Preventing Harm to Civilians

Over at Forbes I have a new piece about the Army’s new manual for preventing and mitigating harm to civilians in combat.  Here is an excerpt:

Today, the United States Army published what I believe is the first military manual aimed solely at preventing and mitigating harm to civilians in combat.  The manual, entitled Army Tactics, Techniques, and Procedures 3-37.31, Civilian Casualty Mitigation (CIVCAS Manual for short) is the result of a year long project led by Colonel (Ret.) Dwight Raymond of the Army’s Peacekeeping and Stability Operations Institute.  The project received strong support from General Martin Dempsey, Chairman of the Joint Chiefs of Staff.

The CIVCAS Manual moves beyond a strict law of armed conflict mindset, to an approach that integrates civilian casualty mitigation principles across the spectrum of routine and pre-deployment training, doctrine and education.  The manual is intended to provide the doctrinal guidance and direction necessary for Army units to minimize harm to civilians, and when such harm occurs, to provide guidance about how to manage the consequences of that harm. While the manual is intended for use by the Army, it was drafted with input from other branches of the armed forces, members of foreign armed forces and civilian experts from NGOs and the legal academy (full disclosure: I provided some input on an early draft of the manual and hosted some of the manual’s authors at my law school).

The manual builds on lessons learned from the military’s experience in all contemporary conflicts, especially those in Afghanistan and Iraq, and draws on lessons detailed in the Joint CIVCAS Study.  The CIVCAS Manual is intended in part to remedy some of the serious deficiencies noted in the Joint CIVCAS Study, which examined the causes of civilian harm and recommended techniques to prevent civilian casualties during combat.  That inquiry was a research effort combining external academic rigor with professional military expertise to create the first comprehensive assessment of civilian protection.  Writing the Foreword to the Joint CIVCAS Study, then General David H. Petraeus noted that avoiding civilian casualties “is a central operational challenge in Afghanistan and Iraq and it will be a challenge in any future conflict as well.”  One of the key recommendations of the Joint CIVCAS Study was that the military must develop a handbook for civilian casualty response, the CIVCAS Manual aims to fill that doctrinal gap.

I’ve uploaded a copy of the manual here: CIVCAS Manual

Standard
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.

Standard
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.

Standard
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

Standard
Law and Public Policy

Short Summary of Collateral Damage/Targeting Piece Now Posted at Lawfare

Over at Lawfare I’ve posted a short summary of my collateral damage piece.  You can access the summary here.

To give you a feel for the flavor of the blog post, here is my concluding paragraph:

“Taken together, the CDM process provides predictions about likely effects, and the ROE specifies the decision authority necessary to authorize certain strikes.  The process, as I explain it in the paper, is far more detailed and accountable than that which has been described by most commentators. I should caution that this blog post differs a bit from the article.  I’m making the point here that most critics have largely ignored the levels of accountability and procedural care I describe in the paper, I don’t make that claim in the article mostly because I’m limiting it to an empirical description of the process.  I do think it’s important to highlight that many commentators have not fairly described the military’s process despite the fact that most of the documents I rely upon were available on the internet, were released to the ACLU in the al Aulaqi litigation, or were published by WikiLeaks (although synthesizing them and supplementing them with interviews was a big challenge).  In some respects the military can be faulted for not adequately explaining their very defensible procedures to the public.  In any case, irrespective of your opinion about the merits of targeted killing, I’m hopeful my paper provides the foundation necessary for scholars and commentators to build upon, and I hope it serves as a helpful corrective to the descriptions of state practice currently circulating in public commentary.”

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

Standard