Detention, Interrogation, and Targeted Killing, and a Conference at Penn

The LA Times has a good story on the complete backing away of the CIA from any new detentions or interrogations in counterterrorism under the Obama administration (though it started back under the Bush administration).  It describes a general paralysis of policy, frozen among a variety of government actors wary of doing anything that might restart the detention wars of the Bush administration.  It’s a well reported piece by Ken Delanian, April 10, 2011.

The U.S. has made no move to interrogate or seek custody of Indonesian militant Umar Patek since he was apprehended this year by officials in Pakistan with the help of a CIA tip, U.S. and Pakistani officials say.

The little-known case highlights a sharp difference between President Obama’s counter-terrorism policy and that of his predecessor, George W. Bush. Under Obama, the CIA has killed more people than it has captured, mainly through drone missile strikes in Pakistan’s tribal areas. At the same time, it has stopped trying to detain or interrogate suspects caught abroad, except those captured in Iraq and Afghanistan.

“The CIA is out of the detention and interrogation business,” said a U.S. official who is familiar with intelligence operations but was not authorized to speak publicly.

The article goes on to discuss the policy paralysis underlying this condition.  But I want to add one caution.  The article says, as I and many others have argued would take place over time given the incentives not to detain people, that the Obama administration uses targeted killing.

Despite having made exactly this point myself many times, it bears noting that there are plenty of independent reasons for using targeted killings in many situations – avoiding detention is almost certainly far less important than the current meme suggests.  Even if there were some protocol for detaining and interrogating people, there are plenty of circumstances in which seeking to capture is too risky and other operational reasons.  More interesting is that the article’s main focus is on a person captured by Indonesia from a CIA tip, not targeted with a missile.  Even in that case, in which it is not a choice between targeted killing and detention, the CIA still does not want custody, even though the article says that experts believe that the CIA could get far more and better information if it controlled the detention and interrogation process.  This is far from an ideal situation, of course.

While on the topic of targeted killing and drone warfare, let me point readers to a conference at University of Pennsylvania Law School this weekend, a joint effort among lawyers, philosophers, diplomats, and national security and military personnel.  It’s an impressive lineup, and you can even get CLE credit, I believe.  (I’ve put the announcement below the fold.)

I’ll be talking at the Penn conference about an ethical tension between jus in bello and jus ad bellum.  Targeted killing through drones results (I will take by assumption) in less civilian damage in the category of jus in bello.  According to a common argument made today, however, that greater “efficiency” in jus in bello considerations thereby makes resort to force by the United States too easy, as a jus ad bellum matter, and indeed possibly “inefficient.”  Why?  According to this argument, the lack of personal risk to US personnel in drone warfare lowers to an inefficient level the disincentives upon the US to use force.

I have many problems with this argument. But I do think it’s an interesting one from a philosophical perspective, because even if the jus in bello and jus ad bellum considerations are not strictly inconsistent, there is at least substantial tension between them.  Moreover, the ideas of “efficiency jus in bello” and “efficiency jus ad bellum” are interesting all on their own, even if I think that particularly the idea of an efficient level of violence, or an efficient level of incentives and disincentives to resort to force, premised around personal risk to US personnel, is deeply incoherent.  But the incoherency seems to me to take part in an even deeper, and still more wrong, idea that an “efficient level of resort to force” can be extracted independent of the idea of “sides” in war with incommensurate ends.

I’m not a philosopher, though, and find all this philosophy stuff difficult.  So I have been careful to load up my remarks with a lot of practical stuff about where, on the basis of my conversations, reading, discussions, etc., with lots of different folks, both targeted killing and drone warfare are likely to go.  The conference has a great lineup of experts from many fields, however – so even if my remarks are a big miss, in good conscience I can still highly recommend it to you.

THURSDAY, APRIL 14

4:30-6 pm | Gittis 213, Kushner Classroom

Reception to Follow

Title: Counter-Terror: The Model, the Reality

Featuring Dell Dailey, former Ambassador-at-Large and Coordinator for Counter-Terrorism, U.S. Department of State and Director, Center for Special Operations, U.S. Special Operations Command

Moderator: Claire Finkelstein

Commentator: Deborah Pearlstein, Visiting Faculty Fellow, University of Pennsylvania Law School

In recent years, we have come to appreciate that the United States faces real and profound terrorist threats from both domestic and international terrorists. But what happens when military and civilian leaders become aware of an imminent threat? What national and international tools are available to the U.S. government to identify and prevent a terrorist act from taking place? How do American laws and policies intersect with international law when a terror threat hits the radar in real time? Please join Ambassador Dell Dailey for a wide-ranging discussion that will look at cutting edge issues facing America’s counter-terrorism operations today. Ambassador Dailey will present the current counter terror model, discuss new or existing organizations to assist countering terror, and provide an updated assessment of Al Qaeda. A question and answer period will follow. This presentation is jointly sponsored by the Penn Law Office of International Programs, the Institute for Law and Philosophy and the Penn Law National Security Society. It is free and open to the public.

CONFERENCE SCHEDULE

FRIDAY APRIL 15

08:45 am Bus departs hotel

09:00 – 09:30 am Breakfast

09:30 – 11:00 am SESSION 1: The Problem of Targeted Killing

Moderator: Professor Claire Finkelstein

Colonel Max Maxwell, “Like Playing Whack-A-Mole Without a Mallet? Allowing the State to Rebut the Civilian Presumption”

Abstract (pdf) | Paper (pdf)

Professor Kenneth Anderson, “Targeted Killing, Drone Warfare, and the Chimera of Optimizing the Resort to Force”

Abstract (pdf) | Paper (pdf) [rough draft, to be updated soon]

Commentator: Professor Deborah Pearlstein

11:00 – 11:30 am Break

11:30 – 01:00 pm SESSION 2: Targeted Killings and the Rights of Non-Combatants

Moderator: Professor William Ewald

Professor Jens Ohlin, “Targeting Co-Belligerents”

Abstract (pdf) | Paper (pdf)

Professor Craig Martin, “Going Medieval: Targeted Killing, Armed Conflict, and Self-Defense”

Abstract (pdf) | Paper (pdf) [revised]

Commentator: Professor Alexander Greenawalt

01:00 – 02:00 pm Lunch

02:00 – 03:30 pm SESSION 3: Targeted Killing and its Political Implications

Moderator: Professor Stephen Morse

Professor Amos Guiora, “Targeted Killing: A Legal, Practical and Moral Analysis”

Abstract (pdf) | Paper (pdf)

Professor Fernando Tesón, “Is Targeted Killing Ever Justified?”

Abstract (pdf) | Paper (pdf)

Commentator: Professor Andrew Altman

03:30 – 04:00 pm Break

04:00 – 05:30 pm SESSION 4: Implementation of Targeted Killing in the Changing Landscape of Modern Warfare

Moderator: Professor John Dehn

Professor Gregory McNeal, “Collateral Damage and the Administrative Process of Targeted Killing”

Abstract (pdf) | Paper (pdf)

Professor Kevin Govern, “Guns for Hire – Death on Demand?”

Abstract (pdf) | Paper (pdf)

Commentator: Professor Jean Galbraith

05:30 – 06:30 pm Break. Return to hotel or take guided hike in Fairmount Park

06:30 pm Cocktails and Dinner at the home of Claire Finkelstein & Leo Katz.

Keynote address:

Ambassador Dell Dailey, “Targeted Killing – An Operators Perspective”

SATURDAY APRIL 16

08:45 am Bus departs hotel

09:00 – 09:30 am Breakfast

09:30 – 11:00 am SESSION 5: Targeted Killing under Military versus Criminal Law Paradigms

Moderator: Professor Matt Lister

Professor Claire Finkelstein, “Targeted Killing as Preemptive Action”

Abstract (pdf) | Paper (pdf)

Major Richard Meyer, “An Argument for Formalizing the Commencement of Hostilities”

Abstract (pdf)

Commentator: Professor Luis Chiesa

11:00 – 11:30 am Break

11:30 – 01:00 pm SESSION 6: Targeted Killing and Self-Defense

Moderator: Professor Michael Moore

Professor Russell Christopher, “Targeted Killing and the Imminence Requirement”

Abstract (pdf) | Paper (pdf)

Professor Phil Montague, “Defending Defensive Targeted Killings”

Abstract (pdf) | Paper (pdf)

Commentator: Professor Larry Alexander

01:00 – 02:30 pm Lunch

02:30 – 04:00 pm SESSION 7: The Boundaries of Consequentialist Calculation

Moderator: Professor Larry Alexander

Professor Peter Vallentyne, “Enforcement Rights against Non-Culpable Non-just Intrusion”

Abstract (pdf) | Paper (pdf)

Professor Leo Katz, “Targeted Killings and Cyclical Choices”

Abstract (pdf) | Paper (pdf)

Commentator: Doug Weck

04:00 – 04:30 pm Break

04:30 – 06:00 pm SESSION 8: The Normative Framework of Targeted Killing

Moderator: Professor Stephen Perry

Professor Jeremy Waldron, “Can Targeted Killing Work as a Neutral Principle?”

Abstract (pdf) | Paper (pdf)

Professor Jeff McMahan, “Targeted Killing in Morality and Law”

Abstract (pdf) | Paper (pdf)

Commentator: Professor Michael Moore

06:00 pm Cocktails and Dinner at Chestnut Hill Cricket Club

Keynote address:

Professor Michael Moore, “Ethics in Extremis: The Morality of Hard Choices”

Abstract (pdf) | Outline (pdf)