Drone Rules and Targeted Killing: Huffington Post Live Segment

Today I appeared on Huffington Post Live on a panel discussing rules for the use of drones in targeted killings.  The panel information and video clip appear below.

In anticipation of the election, the Obama administration started working to codify drone policies. Why did they wait so long and what might the rules look like?  Originally aired on November 27, 2012

Hosted by:
GUESTS:

  • Josh Hersh (Washington, DC) HuffPost Foreign Policy Correspondent @joshuahersh
  • Hina Shamsi (New York, NY) Director of the National Security Project at the American Civil Liberties Union. @hinashamsi
  • Gregory S. McNeal (Malibu) Professor, Pepperdine University @gregorymcneal

 

http://embed.live.huffingtonpost.com/HPLEmbedPlayer/?segmentId=50b3bde302a76052b7000051

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.

Terrorism & Counterterrorism Since the Attack

Today at Chapman University School of Law I will be presenting at an event entitled “9/11 Ten Year Anniversary: Terrorism & Counter-Terrorism Since the Attack.”  The event will begin at 11:45am in Room 142 and is sponsored by the Federalist Society.

From the promotional materials:

Gregory S. McNeal, legal scholar and specialist in terrorism and homeland security, will be discussing the decade since 9/11, reviewing U.S. policies as they have developed in response to and in anticipation of a dynamic and interconnected world rife with terrorist threats. We will also explore possible reasons why there have been no successful, major, sophisticated terror attacks on U.S. soil since 9/11

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.

Preventing Violent Radicalization in America

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The Bipartisan Policy Center has released their new report Preventing Violent Radicalization in America. Last September’sreport by the Bipartisan Policy Center’s (BPC) National Security Preparedness Group, Assessing the Terrorist Threat, concluded that the lack of a coherent approach towards domestic counter-radicalization left America “vulnerable to a threat that is not only diversifying, but arguably intensifying.” The purpose of this report is to provide guidance on ongoing efforts aimed at developing such an approach.

An Analysis of the National Defense Authorization Bill

201106221353.jpgThe International & National Security Law Practice Group of the Federalist Society has published “An Analysis of the National Defense Authorization Bill” authored by Ben Wittes of The Brookings Institution.   

The article describes the detention and Authorization for Use of Military Force (AUMF) provisions in the National Defense Authorization bill, which was passed by the House of Representatives by a 322-96 vote on May 26, how these provisions are different from the provisions in earlier versions of the bill, and where they are likely to generate opposition. House Armed Services Committee Chairman Buck McKeon introduced the bill in early March and provided updated language for the detention and AUMF sections on May 9. For organizational simplicity, Wittes describes the bill in the order in which its sections appear and compares these sections to the analogous ones in the earlier version.

Targeted Killing of U.S. Citizens and the Federal Protective Power

Al Awlaki targeted killing gsmcneal comMy essay The Federal Protective Power and Targeted Killing of U.S. Citizens is now available at CATO-Unbound.org. The essay is a response to Ryan Alford’s interesting historical piece entitled Sentence First, Verdict Afterwards a shorter version of his lengthier law review article The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens. His claim, roughly summarized, is that the history of the founding and the Constitution’s “forgotten clauses” amount to a due process guarantee which prohibits the president from targeting U.S. citizens who take up arms against the United States. In Alford’s view, any citizen who joins the fight with the nation’s enemies cannot be killed; rather he must be convicted by an Article III court on the testimony of two witnesses to his overt act of treason. In my response I argue that Alford’s arguments against targeted killing are thorough, yet unconvincing.

Here are some excerpts:

Under [Alford’s] view of the Constitution, al-Awlaki could be standing on the White House steps with an RPG, and under Alford’s reasoning his killing would be prohibited (absent the due process protections Alford believes are compelled by the Attainder and Treason Clauses). Surely the Constitution does not require this level of deference to citizenship and such stringent limitations on federal action. Either there are some circumstances under which the President may order a U.S. citizen killed—in which case much of Alford’s historical argument is incorrect—or al-Awlaki with an RPG cannot be killed, and U.S. presidents have been behaving unconstitutionally for centuries. My reading of the Constitution leads me to believe that there are circumstances when the president may order U.S. citizens to be killed. It may be akin to the facts in al-Awlaki, where one is actively making war against the United States, or it may be in lesser circumstances that threaten the instruments of federal power. * * * * Alford cites many historical sources for the idea that the Founders believed citizens should not be arbitrarily deprived of their lives without due process. That notion though, must also recognize that the Founders felt that a key role of government was to ensure that citizens were equally protected from external harms. Security of one’s person and property was a principle emanating from the doctrines of Hobbes and Locke, both of whom influenced the judgment of the Founders. Furthermore, as the Court noted in Neagle, the protective power is an “obligation, inferable from the Constitution, of the government to protect the rights of an American citizen against foreign aggression.” As we know from the al-Awlaki case, that foreign aggression may come in the form of an American citizen directing attacks against the entirety of the United States. When such attacks occur, it falls on the president to embody the “great object and duty of Government [which] is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving.” Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186)(C.C.S.D.N.Y. 1860).

My response essay was preceded by a response essay written by John Dehn and will be followed by a response essay written by Carlton Larson. The full colloquy can be found here.

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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