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

What Will We Watch As Drones Evolve?

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NPR has an interesting new story entitled: What Will We Watch As Drones Evolve?

Every week it seems there are reports about U.S. drones — unmanned, remote-controlled aerial vehicles — tracking down suspected terrorists in remote, unreachable areas of Yemen, Somalia, Libya or Pakistan. Drone technology is becoming increasingly affordable and accessible, with new potential for everyday use in the United States — and new worries for national security.

Targeted Killing of U.S. Citizens and the Federal Protective Power

Al Awlaki targeted killing gsmcneal comMy essay The Federal Protective Power and Targeted Killing of U.S. Citizens is now available at CATO-Unbound.org. The essay is a response to Ryan Alford’s interesting historical piece entitled Sentence First, Verdict Afterwards a shorter version of his lengthier law review article The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens. His claim, roughly summarized, is that the history of the founding and the Constitution’s “forgotten clauses” amount to a due process guarantee which prohibits the president from targeting U.S. citizens who take up arms against the United States. In Alford’s view, any citizen who joins the fight with the nation’s enemies cannot be killed; rather he must be convicted by an Article III court on the testimony of two witnesses to his overt act of treason. In my response I argue that Alford’s arguments against targeted killing are thorough, yet unconvincing.

Here are some excerpts:

Under [Alford’s] view of the Constitution, al-Awlaki could be standing on the White House steps with an RPG, and under Alford’s reasoning his killing would be prohibited (absent the due process protections Alford believes are compelled by the Attainder and Treason Clauses). Surely the Constitution does not require this level of deference to citizenship and such stringent limitations on federal action. Either there are some circumstances under which the President may order a U.S. citizen killed—in which case much of Alford’s historical argument is incorrect—or al-Awlaki with an RPG cannot be killed, and U.S. presidents have been behaving unconstitutionally for centuries. My reading of the Constitution leads me to believe that there are circumstances when the president may order U.S. citizens to be killed. It may be akin to the facts in al-Awlaki, where one is actively making war against the United States, or it may be in lesser circumstances that threaten the instruments of federal power. * * * * Alford cites many historical sources for the idea that the Founders believed citizens should not be arbitrarily deprived of their lives without due process. That notion though, must also recognize that the Founders felt that a key role of government was to ensure that citizens were equally protected from external harms. Security of one’s person and property was a principle emanating from the doctrines of Hobbes and Locke, both of whom influenced the judgment of the Founders. Furthermore, as the Court noted in Neagle, the protective power is an “obligation, inferable from the Constitution, of the government to protect the rights of an American citizen against foreign aggression.” As we know from the al-Awlaki case, that foreign aggression may come in the form of an American citizen directing attacks against the entirety of the United States. When such attacks occur, it falls on the president to embody the “great object and duty of Government [which] is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving.” Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186)(C.C.S.D.N.Y. 1860).

My response essay was preceded by a response essay written by John Dehn and will be followed by a response essay written by Carlton Larson. The full colloquy can be found here.

Targeted Killing and the Rule of Law

CATO Unbound

CATO’s June 2011 issue of Unbound is entitled “Targeted Killing and the Rule of Law” An excerpt:

When can the executive lawfully kill?

The rule of law itself depends on getting the answer right. Clearly that answer can’t be “never,” because then even defensive wars would be impossible. And it can’t be “whenever,” because that would be the very antithesis of lawful government. As F. A. Hayek wrote, “if a law gave the government unlimited power to act as it pleased, all its actions would be legal, but it would certainly not be under the rule of law.”[1]

The answer must be “sometimes” — but which times are those? In wartime? In peacetime? Against aliens? What about citizens? What role do the courts play? And what about the legislature?

In answer to these questions, lead essayist Ryan Alford draws on the Anglo-American constitutional tradition, arguing that the killing of a citizen or subject without judicial authorization was so far opposed to our traditional legal safeguards that the American Founders didn’t even bother to prohibit it in the Constitution. And yet, he argues, the case of Anwar al-Awlaqi shows that our government now claims this power anyway.

To discuss with him this month, we’ve lined up a panel of legal and historical experts: John C. Dehn of the U.S. Military Academy at West Point, Gregory McNeal of Pepperdine University, and Carlton Larson of the University of California at Davis. Each will offer a commentary on Alford’s essay, followed by a discussion among the four on this timely and important subject.

Here is the sequence of events:

Lead Essay

Sentence First, Verdict Afterwards by Ryan Alford.

In one sense, “targeted killing” is what war is all about. But can the executive branch rightfully declare a U.S. citizen the target of an assassination order? Lead essayist Ryan Alford argues that the “presidential death warrant” is repugnant to the rule of law—so much so that the Founders didn’t even think it necessary to make an explicit statement about the practice. At the time of the Revolution, English kings hadn’t enjoyed such a power for centuries, and it was thought to be the very antithesis of the rule of law. A power of this magnitude cannot be simply inferred from the Constitution’s silence, particularly when legal practice in the Anglo-American world tells so strongly against it.

Response Essays

The Conversation

  • Conversation to follow June 13.

Related at CATO

Targeted Killing Conference at University of Pennsylvania

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I’m very excited about my upcoming participation in a conference at The University of Pennsylvania Law School.  The conference is entitled “Using Targeted Killing to Fight the War on Terror: Philosophical, Moral and Legal Challenges.”  Here is the intro from the conference web page:

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.

My piece is entitled “Collateral Damage and the Administrative Process of Targeted Killing.”  Here is the abstract:

During any targeted killing operation, military commanders are required by the Laws of War to minimize collateral damage.  The minimization of collateral damage takes place through mitigation techniques that balance mission requirements and the threat to friendly forces against expected collateral damage.  In legal scholarship this is frequently described as a binary balancing process, however in practice the process of estimating collateral damage and mitigating the likelihood of collateral damage is a complex multi step process grounded in scientific evidence derived from research, experiments, history, and battlefield intelligence.

My aim is to fully explain for the first time in scholarly literature the process of collateral damage estimation as practiced by the U.S. military in targeted killing operations.  My data is drawn from publicly available documents, principally those filed by the government in the Al Aulaqi litigation.  By explaining this process I anticipate this paper can provide scholars with a basis for analyzing whether the U.S. military’s administrative processes and accountability techniques adequately adhere to the principles established in the Laws of War.  After describing the administrative process followed by U.S. forces I offer some preliminary thoughts on the implications of these processes.

 

The conference organizers have put together a great line-up of participants, the schedule is listed after the jump:

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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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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.

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What Does al-Awlaki Think About Killing Innocents?

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If you are wondering what al-Awlaki and al Qaeda think of killing innocent people, you need only read him in his own words.  Flashpoint partners has published a transcript of al-Awlaki’s most recent speech, it’s available here.  I’ve included some excerpts below:

On killing innocent civilians-

O’ Allah forbid that we advocate the spill of Muslims blood! O’ Allah forbid that we call for collusion and igniting wars! O’ Allah forbid that we call for killing innocent people! This is the talk of the Americans and their cooperatives and their media.  We call to defend the life and resources of the Ummah. We call to defend our rights. We call to establish the religion of Allah, which Allah created us only for that purpose.

On whether to seek permission for conducting attacks against Americans, al-Awlaki tells his followers one is not necessary.  This may become an enabling speech for homegrown terrorists.  The theme in his comments is also consistent with the message in al Qaeda’s recent issue of Inspire:

The second case: do not consult anyone in killing the Americans. Fighting Satan does not require a jurisprudence. It does not require consulting. It does not need a prayer for the cause. They are the party of Satan, and fighting them is a matter of time. With them we reached: either us or you. We are two opposites that cannot be gathered; they want something that cannot be established except by removing us. It is a fateful battle. It is the battle between Moses and Pharaoh. It is the battle between truth and falsehood.