George Mason Law School: Kill-Lists and Accountability

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On November 14th at 12pm at George Mason 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. 

Kill-Lists and Accountability at Temple Law

TempleLogo

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. 

Kill-Lists and Accountability at Seattle University

SeattleULawLogo

On November 4th at 4pm at Seattle 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. 

Kill-Lists and Accountability at South Texas

NewImage

On October 17th at South Texas College 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. 


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.

Lawfare on my Targeting and Collateral Damage Article

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Ben Wittes, writing at Lawfare was kind enough to pen a write-up on my empirical paper The U.S. Practice of Collateral Damage Estimation and Mitigation.  I consider this a high honor.  Here is Ben’s take:

Whatever your view of the merits of targeted killing, this article, in my view at least, will enrich your understanding of the way targeting is done. It should be required reading for anyone participating in the many debates surrounding targeted killing. While it deals only with the military, not the CIA, and only with strikes that are reviewed in advance–and thus does not present a complete picture of U.S. targeting practices–it does give a rich sense of the methodological care and seriousness with which the military approaches the problem of collateral damage.

Check out the full post here.

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

 

 

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

 

 

Guiora on Targeted Killing: “Determining a Legitimate Target: The Dilemma of the Decision Maker”

targeted killing

Amos Guiora has posted a great new article to SSRN, entitled Determining a Legitimate Target: The Dilemma of the Decision Maker. Guiora has some experience in these matters as he previously served as a legal adviser in the IDF (full disclosure, we also worked together at the Institute for Global Security).  Here is the abstract:

Nation states are under attack by non-state actors; whether non-state actors present an existential threat to nation states is debatable, probably unlikely. Nevertheless, the threat to innocent human life that terrorism poses must not be underestimated. Because terrorist organizations have defined the innocent civilian population as legitimate targets, the state must develop and implement aggressive counter terrorism measures. That, in a nutshell, is the state of the world post 9-11. While reasonable minds may disagree as to the degree of threat that terrorism poses, there is little (never say never) disagreement that terrorism poses a (not necessarily the) threat to the nation state.

This reality has forced decision makers to address terrorism and terrorists literally ‘on the fly’. In retrospect, Tuesday morning September 11, 2001 not only caught world leaders by surprise, most were unprepared and untrained to respond in a sophisticated and strategic manner. In the US, as thoroughly documented elsewhere, the lack of preparation directly contributed to significant violations of human rights including torture, rendition, indefinite detention and unauthorized wiretapping. The executive branch in the US chose a path of granting itself unprecedented powers, with Congress and the Supreme Court largely acquiescing.

While historians will judge whether this combination made America safer, the wise words of Benjamin Franklin – “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety” – were largely ignored in the aftermath of 9/11. The ten year anniversary of 9/11 serves as a useful benchmark for looking back to gauge what measures have been implemented, to what degrees of effectiveness, and at what cost. The anniversary additionally serves as a useful benchmark for looking forward and addressing how to develop, articulate and implement changes to existing counterterrorism strategy. This article will not offer a broad retrospective of post 9/11 decisions; rather, the article will focus on the definition of legitimate target.

Discussion regarding the AMW manual is particularly relevant to the question of legitimate target. After all, air and missile warfare is directly related to the legitimate target dilemma. Any analysis of air and missile warfare must include discussion regarding defining a legitimate target and then, subsequently, determining when the individual defined as legitimate is, indeed, legitimate. In that context, the link between legitimate target and AMW is inexorable.

Two central questions with respect to operational counterterrorism are who can be targeted and for when is the identified legitimate target a legitimate target. Those two questions go to the heart both of self defense and the use of power. In a counterterrorism regime subject to the rule of law, use of power is neither unlimited nor unrestrained. Regimes subject neither to external or internal restraints may engage in maximum use of force; needless to say, operational results will be uncertain.

A comparative survey of operational counter terrorism is telling for it highlights how distinct approaches color the legitimate target discussion: The Russian experience in Chechnya presents a particularly stark example of maximum force with questionable results. Conversely, Spain’s experience in the aftermath of the Madrid train bombing reflects a different paradigm, one implementing minimum force and maximum restraint. Seven years after 204 Spaniards found their deaths at the hands of Islamic extremists, Spain – as these lines are written – has not experienced a second attack. China’s policy regarding Uyghur’s in Xinxiang Province is best captured in its name: “Strike Hard” campaigns; India, largely in the face of Pakistani supported and facilitated terrorism, has adopted a policy of restraint predicated, largely, on mutual assured deterrence. Colombia’s policy, in the face of twin threats posed by drug cartels and terrorists is aggressive, not dissimilar from China’s. Israel and the US have largely, but certainly not consistently, sought to implement person-specific counterterrorism policies. Policies implemented by the US and Israel include targeted killing/drone attacks, Operation Cast Lead, and detainment of thousands of individuals in Afghanistan and Iraq, often for what can best be described as little, if any, cause.

With the primary focus on who is a legitimate target and when is the target legitimate, the article will be organized as follows: Section I offers a ‘word of caution’ in an age of uncertainty; Section II discusses operational counter terrorism; Section III offers a survey of how the term legitimate target has historically been defined and applied in the battlefield; Section IV focuses on the non-state actor and international law; Section V discusses defining the legitimate target; Section VI focuses on the practical application of the legitimate target discussion from the commander’s perspective; the conclusion proposes a road map moving forward regarding both definition and application of legitimate target.

 

 

 

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.