Blog, Law, Terrorism

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

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Blog, Law, Lawfare, National Security, Policy, Terrorism

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

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Blog, Law, Terrorism

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.

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Blog, Law, Lawfare, National Security, Terrorism

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

 

 

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Pocket Litter, Intel and the Ground Operation

Beyond confirming that Bin Laden was actually the person killed in Abottabad, what is the significance of troops being on the ground to conduct the Bin Laden Operation?  Can their presence lead us to the new #1 in al Qaeda, Ayman al-Zawahiri?

In the coming days we will likely hear about the gathering of “pocket litter” and other exploitable intelligence and there will probably be some speculation about where that intelligence may lead us.  Given that the U.S. has surveilled the Bin Laden compound for a few months, we likely know quite a bit about the comings and goings of couriers and others who may lead us to Zawahiri.  Moreover, unless this operation was time sensitive (which it doesn’t sound like) we can expect that U.S. forces would not have conducted the operation without already planning for the next operation — the one leading to Zawahiri.  Of course, if we knew where Zawahiri was we would have conducted simultaneous operations.  The fact that we didn’t likely means that we were hoping to exploit intelligence to be found inside the Bin Laden compound.  The value of that intelligence gathered on the objective will determine whether Zawahiri’s days are best measured in weeks, months, or longer.

Cross Posted at OJ

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Blog, Law, National Security, Terrorism

Some Preliminary Thoughts on the Bin Laden Operation

I’m guest blogging over at Opinio Juris, below is a repost of something I wrote there:

First off, there is a lot of talk about this operation being a “human operation” involving special operations forces.  Some readers may assume that this meant there were no air assets involved (e.g. no Predators and no bombs dropped).  This is highly unlikely.  What probably occurred was that ground troops staged outside of wherever Bin Laden was housed, called in air strikes, then moved-in to exploit the objective.  This is not inconsistent with the idea that a firefight took place, it’s just a more likely and more complete description of how things probably played out.  This is especially likely given reports that Bin Laden was killed in a heavily fortified compound with 12-18 foot high walls with a significant security presence.  We will hear more about this in the coming days, but I’m guessing there was airpower in support of the ground operation.

Second, the fact that this took place in Abottabad, Pakistan tells us something about the credibility of the Pakistani government’s repeated claims that Bin Laden was not in Pakistan.

Third, Peter Bergen just said on CNN that killing Bin Laden is “The end of the war on terror.”  I’m skeptical of this claim and imagine that one year from now we will still be employing armed forces around the world in search of al Qaeda members.

I’ll have some more detailed thoughts once the speculation dies down.

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Blog, Expert Appearances, Law, Media, Policy, Terrorism

Targeted Assassinations: The Debate on U.S. Policy Regarding American Citizens Designated as Terrorists

 

On Thursday, November 18 at the University of California, Irvine School of Law, featuring Professor Gregory McNeal of the Pepperdine University School of Law and Ahilan Arulanantham, Director of the ACLU of Southern California’s National Security Project.  The debate will be moderated by Henry Weinstein, currently a Professor at UC Irvine and formerly the long-time legal reporter at the Los Angeles Times.  The debate is cosponsored by the law school’s Federalist Society and American Constitution Society chapters.

Targeted Killing and Assasinations Greg McNeal.jpg

 

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