Law and Public Policy

The Law of Cyber Warfare: Can The Current Legal Regime Hack It?

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THE LAW OF CYBER WARFARE: CAN THE CURRENT LEGAL REGIME HACK IT?  

Presented by the American University International Law Review and National Security Law Brief

November 8, 2012 10:30 am – 2:30 pm American University Washington College of Law

Although cross-border attacks on computers and information systems do not involve a physical invasion of sovereign space, incursions such as the Stuxnet virus increasingly seem to serve a similar purpose. The symposium will examine whether cross-border cyberattacks qualify as acts of war under international law, whether the difficulties of distinguishing civilian and military targets require a special legal regime to govern cyber warfare, and how legislation that has been passed or is currently being considered by the U.S. Congress will affect the international context of such attacks. Are the current legal conventions sufficient to regulate this new kind of warfare? If not, then how should international law account for changing technological capacities? How effective are domestic legislative efforts in addressing the burgeoning foreign threats critical infrastructure institutions in the United States face?

10:00 am  Registration

10:30 am  When is a Virus a War Crime? Targetability and Collateral Damage Under the Law of Armed Conflict:

As cyber attacks have become an increasingly integral tactic for military strategists, they have raised questions for the international legal regime on the conduct of war. Cyber warfare is particularly challenging because cyber attacks designed to disrupt, deny, or degrade enemy military capabilities may simultaneously damage civilian computer systems. Does the law of armed conflict provide sufficient guidance for establishing targetability? Can the destruction of power grids and other critical infrastructure be counted as collateral damage or could they be considered war crimes? Is international humanitarian law capable of governing rapidly developing technology? If not, can it be amended, or is a new legal regime needed?

Speakers

Paul Rosenzweig, Professorial Lecturer in Law, George Washington University

Charles L. Barry, Senior Research Fellow, Center for Technology and National Security Policy, National Defense University

John C. Dehn, Senior Fellow, Rule of Law Center, West Point

Gregory S. McNeal, Associate Professor of Law, Pepperdine University

Moderator: Professor Daniel Schneider, American University School of International Service; Director, Center on Non-traditional Threats and Corruption (CONTAC)

1:15 pm Is Domestic Legislation Sufficient Tool to Battle Foreign Attacks? An Analysis of the Efficacy of Domestic Cyber Security Legislation

In an increasingly interconnected world, critical infrastructure in the United States faces foreign cyber threats at an increasing rate, emphasizing possible vulnerabilities in current security systems. Foreign attacks are particularly concerning because accessibility to critical infrastructure systems puts both the United States government and the civilian population at great risk. Is legislation like the Cyber Intelligence Sharing Protection Act or the cyber security bills being considered by the U.S. Congress effective in targeting the risk of foreign attack on critical infrastructure institutions, such as power grids, gas pipelines, and the banking sector, which are prime targets for cyber attacks? If not, should more regulatory efforts be considered or are companies in the business of managing critical infrastructure capable of maintaining their own standards that are effective in combating foreign attacks?

Speakers

Michelle Richardson, Legislative Counsel, American Civil Liberties Union, Washington Legislative Office

Jamil Jaffer, Senior Counsel, House Permanent Select Committee on Intelligence

Catherine Lotrionte, Director, Institute for International Law, Science and Global Security

Moderator: Professor Melanie Teplinsky, American University Washington College of Law

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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

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Law and Public Policy

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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Law and Public Policy

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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Law and Public Policy

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.

 

 

 

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Law and Public Policy

Direct Action Against Alleged Terrorists

The January/February issue of the American Bar Association’s National Security Law Report, a publication of the Standing Committee on Law and National Security is now available on-line. 

In this issue we feature three contributions which address the important topic of direct action against alleged terrorists and the legal framework which should govern in those circumstances. 

First, David Luban (Georgetown University Law Center) and Amos N. Guiora (University of Utah, S.J. Quinney College of Law) debate the legal framework applicable during the recent conflict in Gaza. Professor Luban asks “Was the Gaza Campaign Legal?” while Professor Guiora suggests a new legal framework which he terms “Proportionality ‘Re-Configured’.” 

Also, Sarah Miller (Harvard Law School), winner of The ABA Standing Committee on Law and National Security’s 2008 Student Writing Competition, pens an essay entitled “Covert Action and the War on Terror: Reconciling Secrecy and Public Legitimacy” in which she examines the current legal framework governing covert action and makes the case for transparent guidelines. 

Check it out here.  If you’re interested in proposing your own article or debate for an upcoming issue, please contact me here

If you would like to receive: a FREE hardcopy subscription to The National Security Law Report, plus email updates on workshops, seminars, speeches, events, and career postings in national security fill out this form here.

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