Blog, Law, Lawfare, National Security, targeted killing

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. 

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Blog, Law, Lawfare, National Security, targeted killing

Kill-Lists and Accountability at Temple Law

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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. 

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Blog, Law, targeted killing, Terrorism

Kill-Lists and Accountability at Seattle University

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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. 

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Blog, Law, National Security

Kill-Lists and Accountability at South Texas

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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. 


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Blog, Law, Terrorism

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.

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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, National Security, Terrorism

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.

 

 

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