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.

Revised FBI Guidelines Will Aid Terrorism Fight

A very helpful post analyzing the pending revisions to the FBI’s guidelines for domestic investigations (DIOG) appears at The Investigative Project’s website. From the IPT:

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Pending revisions to an FBI operations guide could help agents more quickly and aptly perform investigations, including counterterrorism-related inquires, according to former FBI officials familiar with older and current guidelines. Agents will soon be able to evaluate informant candidates by using those methods, which are currently unapproved. The changes could help speed up the vetting process for valuable human intelligence, said Bob Blitzer, former Chief of the FBI’s Domestic Counterterrorism Section, in an interview with the Investigative Project on Terrorism. Information obtained from informants must always be verified against other types of intelligence. The new policies will not change that fact, but they will help to ensure the integrity of the informant. “The more tools [the FBI] has to verify the honesty of sources, the better off we all are,” said Blitzer. That means the raw intelligence received from the informant could be seen as more reliable from the start. “Vetting [informants’] bona fides is critical so that agents are not fooled into taking actions that pull them away from productive endeavors,” he added.

The whole story is available here.

Guantanamo Interrogations Reportedly Led to Bin Laden

Over at Lawfare Ben Wittes aks Will Bin Laden’s Death Reignite the Interrogation Debate? I think there is little doubt that it will.

Consider this recent post by Marc Thiessen over at The American Enterprise blog.  Thiessen writes

“So Guantanamo detainees provided the key intelligence that allowed the CIA to track down bin Laden. But not just any Guantanamo detainees. It turns out the detainees in question were KSM and Abu Faraj al-Libi…Before coming to Gitmo, both were held by the CIA as part of the agency’s enhanced interrogation program, and provided the information that led to bin Laden’s death after undergoing interrogation by the CIA. In other words, the crowning achievement of Obama’s presidency came as a direct result of the CIA interrogation program he has denigrated and shut down.”

His source?  A New York Times report that notes:

As Obama administration officials described it, the real breakthrough came when they finally figured out the name and location of Bin Laden’s most trusted courier, whom the Qaeda chief appeared to rely on to maintain contacts with the outside world.

Detainees at the prison at Guantánamo Bay, Cuba, had given the courier’s pseudonym to American interrogators and said that the man was a protégé o Khalid Shaikh Mohammed, the confessed mastermind of the Sept. 11 attacks.

American intelligence officials said Sunday night that they finally learned the courier’s real name four years ago, but that it took another two years for them to learn the general region where he operated.

Cross Posted at OJ

 

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

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.

Trying Khalid Sheikh Mohammed in Guantanamo: What To Do About Seemingly Coerced Statements?

In light of the news (embedded above) that KSM and other 9/11 plotters will be tried in a military commission in Guantanamo, I thought it was appropriate to post to SSRN a symposium article entitled A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements.  The article focuses on the impact that abusive and coercive interrogation techniques will have on the admissibility of later statements derived from non-abusive, non-coercive interviews.

Were subsequent, legal, and humane interviews of KSM, indelibly impacted by the “taint of torture” regardless of how they were conducted? Accordingly, are statements made in those subsequent non-coercive settings inadmissible on voluntariness grounds?

This article first details the coercive interrogation techniques authorized against suspected terrorists detained in Guantanamo Bay Cuba. Next, the article details the changing circumstances of detainee custody and treatment to set the stage for a discussion of whether earlier abuses, if corroborated, will invalidate subsequent statements made by the victims of that abuse.

I explain how the U.S. government, recognizing that its earlier interrogation tactics may have jeopardized its legal case against the detainees implemented “clean teams.” Building off of these factual premises, I next synthesize the tests a judge will need to apply in order to determine the admissibility of seemingly voluntary post-abuse statements. In this synthesis I highlight how factors such as the time between statements, change in location, change in identity of interrogators, nature of the previous unlawful interrogation methods, and use of illegally procured statements as leverage in obtaining new statements each impact the admissibility analysis.

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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Statement of Todd Hinnen Regarding, FISA, Roving Surveillaince, Business Records and Lone Wolf Provisions in the USA Patriot Act

Todd Hinnen, Acting Assistant Attorney General for National Security recently testified before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security regarding FISA reauthorization and the Patriot Act.  I’ve pasted his testimony below, a copy of which can be found here.

Chairman Sensenbrenner, Ranking Member Scott, and members of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, thank you for inviting me to testify today concerning the three provisions of the Foreign Intelligence Surveillance Act (“FISA”) that were recently reauthorized but are scheduled to sunset again in May.  Two of these provisions have been part of FISA since the USA PATRIOT Act was enacted nearly a decade ago, and the third has been in FISA since 2004.  They have all been reauthorized several times since enactment.  As you know, we continue to believe these are critical tools for national security investigations that facilitate the collection of vital foreign intelligence and counterintelligence information.  Consequently, we strongly support their continued reauthorization.  The Attorney General and Director of National Intelligence have written to the leadership of both houses of Congress urging that Congress grant a reauthorization of sufficient duration to provide those charged with protecting our nation with reasonable certainty and predictability.

Today I will briefly describe the three expiring provisions (the “roving” surveillance provision, the “lone wolf” definition, and the “business records” provision), explain how they have typically been used in practice, and identify some of the safeguards that ensure that these authorities are used responsibly.

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Statement of the Attorney General: Obama’s Decision to Now Prosecute 9/11 Conspirators by Military Commission in Guantanamo

In November 2009, I announced that Khalid Sheikh Mohammed and four other individuals would stand trial in federal court for their roles in the terrorist attacks on our country on September 11, 2001.

As I said then, the decision between federal courts and military commissions was not an easy one to make.  I began my review of this case with an open mind and with just one goal:  to look at the facts, look at the law, and choose the venue where we could achieve swift and sure justice most effectively for the victims of those horrendous attacks and their family members.  After consulting with prosecutors from both the Department of Justice and Department of Defense and after thoroughly studying the case, it became clear to me that the best venue for prosecution was in federal court.  I stand by that decision today.

As the indictment unsealed today reveals, we were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators – one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor.  We had carefully evaluated the evidence and concluded that we could prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws.  We had consulted extensively with the intelligence community and developed detailed plans for handling classified evidence.  Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over two hundred years.

Unfortunately, since I made that decision, Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue.  As the President has said, those unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security.  Decisions about who, where and how to prosecute have always been – and must remain – the responsibility of the executive branch.  Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments.  Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.  We will continue to seek to repeal those restrictions.

But we must face a simple truth:  those restrictions are unlikely to be repealed in the immediate future.  And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice.  I have talked to these family members on many occasions over the last two years.  Like many Americans, they differ on where the 9/11 conspirators should be prosecuted, but there is one thing on which they all agree:  We must bring the conspirators to justice.

So today I am referring the cases of Khalid Sheikh Mohammed, Walid Muhammad Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi to the Department of Defense to proceed in military commissions.  Furthermore, I have directed prosecutors to move to dismiss the indictment that was handed down under seal in the Southern District of New York in December, 2009, and a judge has granted that motion.

Prosecutors from both the Departments of Defense and Justice have been working together since the beginning of this matter, and I have full faith and confidence in the military commission system to appropriately handle this case as it proceeds.  The Department of Justice will continue to offer all the support necessary as this critically important matter moves forward.  The administration worked with Congress to substantially reform military commissions in 2009, and I believe they can deliver fair trials and just verdicts.  For the victims of these heinous attacks and their families, that justice is long overdue, and it must not be delayed any longer.

Since I made the decision to prosecute the alleged 9/11 conspirators, the effectiveness of our federal courts and the thousands of prosecutors, judges, law enforcement officers, and defense attorneys who work in them have been subjected to a number of unfair, and often unfounded, criticisms.  Too many people – many of whom certainly know better – have expressed doubts about our time-honored and time-tested system of justice.  That’s not only misguided, it’s wrong.  The fact is, federal courts have proven to be an unparalleled instrument for bringing terrorists to justice.  Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences.  There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system.  Our national security demands that we continue to prosecute terrorists in federal court, and we will do so.  Our heritage, our values, and our legacy to future generations also demand that we have full faith and confidence in a court system that has distinguished this nation throughout its history.

Finally, I want to thank the prosecutors from the Southern District of New York and the Eastern District of Virginia who have spent countless hours working to bring this case to trial.  They are some of the most dedicated and patriotic Americans I have ever encountered, and our nation is safer because of the work they do every day.  They have honored their country through their efforts on this case, and I thank them for it.  I am proud of each and every one of them.

Sadly, this case has been marked by needless controversy since the beginning.  But despite all the argument and debate it has engendered, the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points.  At the end of our indictment appear the names of 2,976 people who were killed in the attacks on that deadly September day nearly ten years ago.  Innocent Americans and citizens of foreign countries alike who were murdered by ruthless terrorists intent on crippling our nation and attacking the values that we hold dear.  This case has always been about delivering justice for those victims, and for their surviving loved ones.  Nothing else.  It is my sincere hope that, through the actions we take today, we will finally be able to deliver the justice they have so long deserved.

Texas Student Charged in Terrorist Plot May Have Targeted Bush

Student Charged in Terrorist Plot May Have Targeted Bush: “A 20-year-old Saudi studying at a Lubbock, Texas college has been arrested and charged with trying to build weapons of mass destruction. Agents found lists of possible targets inside Khalid Ali-M Aldawsari’s home, including the address of former President Bush.”

(Via Investigative Project on Terrorism.)