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, Terrorism

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.

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Blog, Law, National Security, Terrorism

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

 

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Blog, Law, National Security, Terrorism

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

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Blog, Law, National Security, Terrorism

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.

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Blog, Law, National Security

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.

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Blog, Law, National Security, Policy, Politics

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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