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: