The Volokh Conspiracy

(Note: I started composing draft posts about Harold Koh’s important ASIL speech, particularly its discussion of drones and targeted killing, and concluded it would be better not to do a post that would turn into an online article, but instead some shorter posts on particular issues, even if they are somewhat random.)

Toward the end of the section on drone warfare in Legal Adviser Koh’s March 25, 2010 speech to ASIL is a discussion that runs to US domestic law and regulation.  For the first time in a very long time – it might be since Koh’s predecessor Abe Sofaer addressed the question in a 1989 speech – the meaning of “assassination” in US law and regulation has been addressed in an authoritative and considered way by a senior US government lawyer.  Legal Adviser Koh said with respect to “assassination”:

[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

To refresh on the background to this.  Apart from questions of international law, the US has had a domestic ban on “assassination” in the form of an executive order that has been in place (or renewed in slightly different language) since the presidency of Gerald Ford.  In 1976, in the wake of revelations of CIA activities in the Church Committee hearings, President Ford issued EO 11905, the single relevant sentence of which read:  ”No employee of the United States Government shall engage in, or conspire to engage in, political assassination.”  President Carter reissued the order in 1978 in slightly different language in EO 12036, which read in relevant part:  ”No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”  President Reagan reissued the order in 1981 using identical language in EO 12333:  ”No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”  EO 12333 was amended by subsequent EO’s, but the specific assassination ban text remains unchanged.

That said, the term “assassination” is never defined.  Whole forests have fallen as commentators, in law reviews and elsewhere, have debated its meaning over decades, however.  Does it refer to political leaders?  To whom does it apply or not apply?  Non-state actors?  Terrorist groups?  Political leaders of states with which the United States is at war?  Military-political leaders of such states (given how frequently that is the case)?  There is little material in the record as to what was intended – and perhaps not surprisingly.  What little anecdotal information exists from the EO’s issuance in the 1970s suggests that it was intended as a way of placating Congress, and avoiding an actual statutory ban.  The EO was apparently intended to be vague and undefined, and subsequent presidents – and, note, Congresses – have found that to be a useful ambiguity in which to leave it.  It has the status of a binding executive order in domestic law – and amendable, alterable, and revocable should the President want to do it.

I’ve never understood, to be frank, the scholarly agonizing around a single sentence with a wholly undefined term in an order not, and never, codified as a statute.  It defies interpretive settlement, I would have thought, precisely because it was not designed to bear any real legal weight.  It was instead merely a declaration in vague and general terms that whatever wicked killings the CIA did that were revealed in the Church hearings, those would not happen any more, a mea culpa and promise not to do some ill-defined bad things any more.  Well and good – the CIA did some bad and wicked things – but beyond that, one is not really going to get by textual interpretation.  Unsurprisingly, much of the commentary uses the interpretive discussion as a way of launching a normative view of when and what should be acceptable in the way of targeted killing.

The essentially normative launching pad of which much of the commentary consists is reinforced by the observation that US officials did offer two senior commentaries on the meaning of the ban in the late 1980s.  One was offered by senior law of war Department of Defense lawyer Hays Parks in a 1989 memorandum of law.  The conclusion of that memorandum, with respect to the use of military forces of the Department of Defense:

Assassination constitutes an act of murder that is prohibited by international law and Executive Order 12333. The purpose of Executive Order 1233 and its predecessors was to preclude unilateral actions by individual agents or agencies against selected foreign public officials, and to establish beyond any doubt that the United States does not condone assassination as an instrument of national policy. Its intent was not to limit lawful self defense options against legitimate threats to the national security of the United States or individual U.S. citizens. Acting consistent with the Charter of the United Nations, a decision by the President to employ clandestine, low visibility or overt military force would not constitute assassination if U.S. military forces were employed against the combatant forces of another nation, a guerrilla force, or a terrorist or other organization whose actions pose a threat to the security of the United States.

This analysis (or at least this particular concluding passage) is not explicit as to whether the act in question is murder because it is assassination and therefore unlawful, or whether it is assassination because it is murder and therefore unlawful.  In 1989, then Legal Adviser to the DOS, Abraham Sofaer, made a speech at the US Army JAG school in Charlottesville, Virginia, that spoke to this underlying issue of what is the predicate, independent violation of law, murder as such or assassination on grounds independent of murder:

The meaning of the term “assassination”’ in historical context, and in the light of its usage in the laws of war, is, simply, any unlawful killing of particular individuals for political purposes … virtually all available definitions of “assassination”’ include the word “murder,”’ which in law is a word of art. Murder is a crime, the most serious form of criminal homicide. That element is the most fundamental aspect of the assassination prohibition. All criminal killing is therefore potentially subject to the prohibition.

Under no circumstances, however, should assassination be defined to include any lawful homicide. Assassination is also commonly defined as killing with a political purpose. Murders that have no political purpose or context are criminal and remain subject to punishment, but these too should not be characterized as assassinations. Other elements offered in available definitions seem superfluous or even misleading. Thus, for example, whether a killing is done “secretly”’ or “treacherously”’ and whether the person is “prominent”’ would appear to be of little or no consequence for purposes of the Executive Order. Nor should it matter that the assassin “kills in the belief that he is acting in his own private or public interest”’ or whether the action is “surprising”’ or “secret.”  The pivotal elements in terms of controlling the behavior of government officials would seem to be illegality and political purpose … the historical background of the term casts considerable light on its meaning and strongly supports a definition limited to illegal, politically motivated killing.

The assassination ban, on this reading, argues that in order to be an assassination, the killing must already be unlawful on some independent ground – because it is murder, for example, or cannot be justified under international law of self-defense.  The result is that the ban on assassination becomes coincident with killing that would be unlawful under domestic or international law in any case.  The assassination ban does not include lawful acts of self-defense.

Consider again the Koh speech on this topic.  It too emphasizes that the ban is to be understood as not including lawful self-defense:

[U]nder domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.” (Emphasis added.)

This is one of several places in which the Koh address specifically distinguishes “self-defense” from “armed conflict.”  It expresses a view that when acting in lawful self-defense (which might or might not be “armed conflict” in a specifically legal sense of that term), targeting specific high-level belligerent leaders is not (independently) unlawful, and because it is not, it thus does not constitute “assassination.”

This is very significant, for at least two reasons.  One is that this reasoning adopts, as premise about international law, that there is a distinction between self-defense and armed conflict.  This is not the only place that the speech does so.  It specifically holds out that the possibility that there can be acts of self-defense separate from acts of armed conflict (I would say, though this particular passage does not, that lawful armed conflict is a subset of lawful self-defense).

Second, more centrally:  It clarifies, by essentially restating and reaffirming a legal view of the US government. one not re-stated (at least not plainly or very often, if at all, so far as I can tell) on both self-defense in international law and assassination in domestic law, dating back to the 1980s.  If the importance of the implication of the international law premise (the self-defense premise) is clear, however, why do I suggest that the domestic law interpretation of the assassination ban is also so significant? After all, it’s merely an executive order, alterable by a president at any time.

The reason I place such significance on this domestic law interpretation is practical.  Outsiders to government like me do not have much information on the thinking during the last two decades about targeted killing and assassination, including 1990s arguments over targeting Bin Laden and others.  Certainly I am not privy to any special information.  However, there is a reference to an OLC opinion from the 1990s, referenced in the 9/11 Commission report, about concerns that in order to avoid possible violation of the assassination ban, it was necessary to conclude that Bin Laden was a combatant, and therefore a target.  Otherwise – quite apart from any international law considerations – targeting him might contravene the assassination ban.

This led, so far as an outsider like me can tell, to push the US government, as it became aware of the Al Qaeda threat in the 1990s, to regard its actions as having to satisfy the requirements of combatancy, and not to assert any genuinely independent grounds of self-defense as a basis for targeting.  As I have argued at great length elsewhere, the collapse of the use of force into a binary consisting of law enforcement or armed conflict deprived the United States of recourse to the most useful and most obvious category of use of force – self-defense at minimal, targeted, discrete levels of violence that would not constitute a genuine legal armed conflict, using covert “intelligence” actors (or at least to accept constraints arising from a legal characterization of such intelligence uses of force that had to be based around the fundamentally armed conflict framing of combatancy).  Not an armed conflict because it would not be, paradoxically, violent, or intense, or sustained enough.  Which is, after all, what covert action is supposed to be, when successfully carried out as a use of force.

I believe that the precautionary legal view that the categories had to be either law enforcement or full-on armed conflict had an inhibiting effect on the effective use of force against Al Qaeda in the 1990s.  I can’t prove it or corroborate it; I’m not an insider in any sense.  However, I was always struck by a conversation with someone who was an insider in the 1990s; when I asked, sometime around 2004, why the insistence on establishing that someone was a “combatant” for purposes of targeting, the answer was immediate – “Oh, well, if we didn’t, we might be in violation of the assassination ban.”  No reference to a violation of international law – presumably because there was no ICC or courts of Spain or Baltasar Garzon in the mid-1990s – but a very real concern about US domestic law.

I won’t try to re-explain here why in my view it matters whether one appeals to combatancy as the legal frame, in an armed conflict, or the broader category of self-defense; it is discussed at length in this article, and for that matter I have raised it on Volokh and Opinio Juris (and the international law scholar Marko Milanovic has gravely disputed the self-defense argument at EJILTalk! blog).  Given the complete acceptance among the three branches of government that the United States is in an armed conflict with Al Qaeda – so that concepts of combatancy do apply – it would have been very easy merely to say, combatants in armed conflict can be targeted under international law, and targeting them does not violate the assassination ban.  Assuming that one takes a global view of the armed conflict (which, I should say, I do not, believing, as I do, that armed conflict with a non-state actor is limited to places of active, sustained, and intense hostilities, but leave that discussion for another post), one need not get into questions of self defense as an independent and broader category of the use of force.

The fact that this speech goes beyond armed conflict to the broader category of self defense speaks to the care that went into preparing this speech – with a view in mind of the needs of future presidents, facing future threats, and responsible for the safety of the United States of America in circumstances having nothing to do with Al Qaeda.  The Legal Adviser might have stopped merely with armed conflict, taking a narrow and presentist view that all that matters is Al Qaeda today, and not presidents tomorrow.  That he did not speaks highly of his long view of the presidency.  Because the law of self defense, while relevant today particularly to the use of force by the CIA, is most relevant to presidents stretching into the future.

But returning, finally, to assassination.  Yes, in my view, it matters a lot in a practical sense that officials of the CIA and other agencies are able to go about their business with considerably less concern that, quite apart from anything else, the one sentence concerning assassination in the EO might come back to haunt them as a matter of domestic law.  It’s not the end of the matter in a lawyerly sense, of course; memos need to be written, legal opinions given, and while I’m doubtful that the text of the EO would be modified to reflect this explicitly, that would be a good thing (it is possible that all of this has already happened inside government).  A single paragraph in a public speech does not take care of things all by itself.

Still, I think the Legal Adviser’s interpretation is correct, and I think it a matter of considerable significance that it so clearly draws upon a long-standing view within the US government, but one that had fallen (if this is not too strong a characterization) into a certain desuetude, at least to those of us outside of government.  Outsiders like me – and most readers – are not fully able to appreciate just how much work, digging, and evaluation of non-public legal memos, opinions, and reasoning dating back decades must necessarily go into what appears to be a simple conclusion in a couple of sentences.  The work behind it was, I’m certain, very substantial.

After getting a number of email requests for this testimony, I’ve posted it up for convenience at SSRN, although it is also available through the hearing page as well.  I submitted along with it my earlier Weekly Standard article, Predators Over Pakistan.  As I have said here earlier, however, this hearing on March 23 came just ahead of Legal Adviser Harold Koh’s March 25, 2010 ASIL speech.  Dean Koh’s speech addressed many of the criticisms made of administration policy on drones, and I should add, in ways that I thought substantively correct as a matter of legal policy.  I thought the Legal Adviser’s statement strong, clear, and substantively excellent.  Overall, I was pleased with the form and direction of its legal framework (if you look at the second half of the Predators Over Pakistan article, the more legally oriented part, you will see that my analysis tracks certain parts of the Koh speech analysis fairly closely).   I was also impressed with its directness – it was not filled with careful dodges and lawyerly hedges that would make it impossible to find a clear takeaway, quite the contrary.

There are many open questions, of course, and ways in which interpretations and legal judgments could go – but the statement on drones itself was impressively direct in what it chose to address.  So I strongly recommend reading this testimony, if you plan to, with the Legal Adviser’s text to hand.  (Below the fold is the SSRN abstract for my testimony.)

Other articles worth reading on the Koh speech?  Shane Harris’s quick take at the Atlantic is a useful one, likewise Ari Shapiro’s take at NPR (including his sense of the audience reaction at the ASIL meeting, which I was not able to attend), and I will post links to some other articles, including Peter Finn’s upcoming Washington Post piece.  In the academic blogosphere, reaction was not so enthused – although my Opinio Juris colleague Julian Ku was pleased that the Koh speech embraced the Bush rationale of armed conflict in addressing Al Qaeda terrorism, my other Opinio Juris colleague Kevin Jon Heller was not so enthused (although KJH was actually commenting on another part of the Koh address, on the ICC and the crime of aggression).  Diane Marie Amann was also not enthused.

In reading the entire speech – which ran over an hour to a packed hotel ballroom – and not just the parts related to drones, I was struck by a general, and in my view deeply important and (especially by academics like me who have never worked in government) underappreciated, question of lawyerly method, sources, methods of interpretation and grounds of authority.  Koh made this point by quoting from Walter Dellinger on his experience at OLC:

[U]nlike an academic lawyer, an executive branch attorney may have an obligation to work within a tradition of reasoned, executive branch precedent, memorialized in formal written opinions. Lawyers in the executive branch have thought and written for decades about the President’s legal authority…When lawyers who are now [in my office] begin to research an issue, they are not expected to turn to what I might have written or said in a floor discussion at a law professors’ convention. They are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch’s legal positions.

I think this is important as a question of method and authority in international law as expressed by the United States as its binding obligation.  When the Legal Adviser’s office sat down to come to a view (and with, drawing on an earlier section of the speech, the extraordinarily difficult and complex task of coordinating with other agencies of government and their lawyers), in other words, it presumably looked to its own practices, opinions, internal conclusions and advice to the executive branch, and so on.  Not to outside scholarship, or at least presumably not until well down the path of interpretive authority within the internal structure of interpretation and legitimate legal authorities within the context of US government lawyering.

Like most academics, particularly when dealing with an administration with a sizable number of lawyers who come from academic communities such as my own, I certainly want to believe that Everyone Who Is Anyone is reading … my stuff.  But of course it’s not true and, more importantly, it shouldn’t be true.  Not except as very, very tertiary.  Why?  Because authority in law is partly a question of the logic, compelling or not, of the ideas and argument expressed – but its legitimacy is also partly a question of its provenance, particularly in the law of a democratic government, in which the legitimate authority of law is partly about internal logical consistency but also partly about consent of the governed.  Who said it also matters.

Continue reading ‘Drone Warfare Subcommittee Testimony, Up at SSRN’ »

Update:  I have had a chance to watch the video twice – I strongly recommend watching it, as it adds considerable language to the statements below in the press release.  And welcome Instapundit readers and any others.  Given how much I have pressed publicly for a statement by the administration’s lawyers, I want to say this much even while I’m still doing a careful lawyerly parsing of the text.

First, let me praise Harold Koh for stepping up to the plate.  This is a plain, clear statement of the US view of the law and its application.  It is measured, and yet exceedingly direct.  My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States.  As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare – most recently in a Weekly Standard article on exactly that theme, again this week in a sharply worded statement to a House subcommittee hearing, and an Ari Shapiro interview on NPR this morning recorded a a month ago – this was an enormously positive step.

Second, on the substance.  On first read, I think this is a great statement.  It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces.  But it also asserts self-defense several times as an alternative.  I had been greatly concerned that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view – that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens.

I want a chance to go over the written text and say something much more exact.  But given how much, particularly this week on account of the Congressional testimony, my criticisms of the administration’s lawyers have been in the news, I would like to make it known as publicly as possible that, on first read, the Legal Adviser’s statement on targeted killing and drone technology is very positive, very strong, and admirably forthright.  My congratulations and thanks to the Legal Adviser.

*

I was teaching classes and unable to attend, much as I wanted to, DOS Legal Adviser Harold Koh’s keynote address at the American Society of International Law annual meeting tonight.  Shane Harris sent me along the press release from ASIL with these excerpts from Dean Koh’s address specifically on the topic of drones.  I have barely had a chance to skim this and have not seen the full text, so I will refrain from commenting at all until I’ve had a chance to read this through.  But I wanted to post this immediately for interested readers; I will now read it through and watch the video):

Koh’s wide-ranging remarks on the Obama administration’s international law policies included a specific affirmation of the administration’s approach to the use of force, including the use of unmanned aerial vehicles (UAVs), which has recently come into question by some legal experts.  Among Koh’s statements regarding the use of UAVs are the following.

“…[I]t is the considered view of this administration…that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war….As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us.  Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….[T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

-                             First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

-                             Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

In U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.”

Responding to some recent arguments made against the use of UAVs, Koh defended the administration’s policy saying:

“[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war.  But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law….[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations.  But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing.  But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.  Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.  In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting.  They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations.  But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of wear – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’”

To view video of the relevant portion of Koh’s address to the Society, visithttp://fora.tv/v/10561.

Yesterday (Tuesday, March 23, 2010) I was pleased to appear as a witness before the House Subcommittee on National Security and Foreign Affairs, to discuss drone warfare and Unmanned Aerial Vehicles (UAVs).  The list of witnesses is here, along with a link to a webcast (which I can’t seem to open), and links to the witness statements.  I am always fascinated to listen to Brooking’s Peter Singer, author of Wired for War, and the rest of the panel was equally interesting, especially on the technical aspects of UAVs.

I was particularly interested to hear in this session discussion of the many ways in which UAV technology is entering civilian fields – everything from crop dusting to monitoring schools of fish from the sky.  Someone mentioned (but I haven’t verified) that University of Nevada now offers a degree program in UAV control.   My points were fairly removed from much of the rest of the technological or military discussion, being aimed squarely at policy and legal policy concerns.  In my oral statement, I emphasized the following:

• The Obama administration has embraced drone warfare, but its lawyers have not caught up; presumably they have private concluded that the several drone warfare programs underway are legal, but it is not a good idea to keep the rationales secret.  Not, at least, with a program in Pakistan that is only a matter of official denial, not secret.  It leaves the President and operations people on down hanging out there exposed.
• The drone warfare campaign embraced most thoroughly as a strategic matter – correctly, in my view – by the senior administration officials starting with the President is not the “hot battlefield” use of drones, in which they are essentially a substitute air support weapon for a manned system.  It is, instead, the use of drones in a role unique to them, as a targeted killing mechanism for use in places far off of active battlefields.  There are some questions raised about military battlefield use of drones, but the real questions lie off the active hot battlefield – and it is these uses that are the real reason why senior Obama officials have celebrated them.
• The fundamental issue in a legal policy sense, then, is not so much drones as such – it is their use in a campaign by the CIA of targeted killing.  A better way to understand the drone debate is that this emerging technology has forced onto the table discussion of the lawful and appropriate role of the CIA, in the use of force, and in covert operations using force.  Much of the purely military discussion is interesting technically, but legally somewhat beside the point at least at this point.  A millimeter beneath the surface of the drone discussion is the question of the CIA.  This is the point of the attack on the CIA’s role as criminal made by Mary Ellen O’Connell, and also by Gary Solis in his characterization of America’s “own unlawful combatants.”
• CIA director Leon Panetta has been engaged in a vigorous public defense of the drone program of targeted killing by the CIA.  I am all in favor of it, of course – but as a friend of the program, so to speak, and happy as I am to see Panetta speak up, his defense of the CIA program is slightly beside the point.  He defends the success of the program. Leaving aside criticisms of “blowback” – easy to make, hard to prove or disprove, frankly, but leave that aside – for most of us the success of the program is not the issue.  At issue is its legality, not its success.  Or at least, to know on what basis the lawyers think it is legal.  (Which, note to the Al Jazeera interviewer yesterday following the hearing, I took great pains to distinguish – I do not question the legality of the program as such, I question which legal rationale for its legality is the right one).
• Even you believe targeted killing using drones is, as a general proposition, legal under domestic and international law, as I do, it matters what kind of legal rationale one asserts for it.  Not all lawyers would agree, to be sure, and I suspect this includes lawyers inside the administration, but in my view it matters whether one adopts an “armed conflict” justification in which, when the US targets someone in Pakistan or Yemen or Somalia or wherever, that person is determined to be a lawful target – and it doesn’t matter, for the bare legality of targeting, where he is located.  The armed conflict goes where the combatant goes.  Mumbai, Mogadishu, wherever.  I think this is wrong as a question of the laws of armed conflict, because it does not adhere to the threshold requirements of this peculiar non-international conflict with a non-state actor taking place on a global basis that the US has with Al Qaeda.  In my view, the proper legal frame is international law of self-defense – and it is what the US has traditionally viewed the exercise of these discrete uses of force by the CIA, covert or clandestine, as being anyway.
• These two legal rationales eventually lead to different legal conclusions, constraints and authority for the use of force, unless one uses very awkward legal reasoning to force these very different uses of force altogether into the same frame.  My view is that forcing CIA targeted killing in places that might range widely in the world into armed conflict rationales is bad for the CIA’s legal reasoning – and requires ever greater legal contortions to make it fit into a model of armed conflict law that is fundamentally about the overt meeting of armies and state forces, not covert ops and intelligence services using force.  I don’t think it is a stable legal view for the CIA over the long term.  Moreover, as I thought in analyzing the Bush administration’s “global war on terror” legal frame, forcing all uses of force outside of plain law enforcement into the armed conflict box of law for overt war distorts that body of law and its interpretation, too.  It isn’t about regulating covert ops and intelligence services – there was a good reason why, during all those decades before the 1990s, exceptional and extraordinary uses of force by the covert civilian services was regarded as not unlawful under international law, but not part of the law of armed conflict, either.

Part of the “framing” problem of law here is that it is not just a division of the military operations from the CIA ones, overt from covert.  The Pakistan program by the CIA is, obviously, not covert – it is an operation in formal deniability – the ability to say at least officially (US and Pakistani officials), US military forces are not operating on the ground in Pakistan.  But, as Peter Singer pointed out in yesterday’s hearing, the scale of this non-covert program is up at the level of the opening of the Kosovo air campaign in 1999 – it is up there at the level of “real” war.  It might well be that the proper legal characterization of the CIA’s role in that theater of hostilities is not “self defense” operations as I would use to characterize the CIA operations in other places, smaller, more discrete, and perhaps genuinely covert or closer to it.  Quite possibly operations in Pakistan by the CIA have to be treated as part of the armed conflict.

The point is that a “deniability operation” (if it can be called that, to distinguish from truly covert) on a large scale eventually starts to resemble “hostilities” in a legal sense and in this case eventually merges geographically into the classic hostilities situation of non-international armed conflict that spills over a border.  If that is the case, then quite possibly it should be characterized as part of a single AfPak theatre of hostilities.  With, therefore, an armed conflict rationale for activities by the CIA.

But I do not think this rationale will work for the operation that matter into the future as Islamist terror groups morph and change and seek safe haven in other places.  Nor do I think it will work for post-Al Qaeda groups.  For those, I would opt for self-defense as Abe Sofaer characterized it in 1989.  And, to be clear, if that is the rationale, it does have to remain – as Gabriella Blum noted in a Harvard symposium on this a few weeks ago – exceptional measures.

So I think it will turn out to matter quite a lot over the long term that the Obama lawyers eventually opt for the specific law of armed conflict, including its definitions and thresholds under treaty and customary law, or some customary law of self-defense.  My guess is that the administration’s lawyers will finally opt for what appears to them to be both a narrower and a superficially reassuring ground of armed conflict that allows them to say that everyone being targeted is a “combatant” in a legal sense.  Again, my own view is that this won’t work over the long run – it will degrade as a rationale for the CIA under withering attack from the soft-law community, and it will have a tendency to degrade the law of war itself as rationales suited to a body of rules about large scale, or at least overt, conflict modeled on inter-state armed conflict, continues to pressed into service in an area that is mostly about covert or clandestine operations, and which aims to avoid overt war.

Put more bluntly, as a political evaluation, I think this rationale will work so long, but just so long, as there is an Obama administration.  As a legal rationale, armed conflict as a rationale will turn out to be a legally and politically “wasting asset.”  The legal attacks on targeted killing and the use of drones therein will be developing, but won’t ripen into active claims of war crimes, and so on, at least ones that have teeth, until the Obama administration leaves office.  Like many of the Bush-era legal tools in counterterrorism, my guess is that the Obama administration will rely on them in point of fact – but not legally defend them in ways that leave them plainly and cleanly available to the next president or future administrations.

Jonathan Manes, the ACLU lawyer whose work and presentations I have cited a couple of times in posts here at Volokh, and someone for whom, despite some fundamental agreements, I have great respect and like very much, has responded with the following letter.  He has given me permission to post it here.  The most important issue is the question of whether I have correctly represented his or the ACLU’s position on the question whether a problem with drones is that they make resort to force by the US too easy.

I don’t believe that it’s proper for me to editorialize on my views here, when the post is really to allow a “letter to the editor,” so I will simply post the letter below; I’m also not opening it to comments. I encourage you to read the FOIA request that Jonathan drafted on behalf of the ACLU (as well as review, if you are very ambitious, the panel discussion at Harvard – although I agree entirely (as I remarked with a similarly impromptu discussion by Harold Koh) that one should not hold people to the strict words of an impromptu panel discussion, and if Jonathan feels that I’ve played “gotcha” unfairly, then my apologies). (I am stealing time in a meeting – one of the deans will shortly glare at me, with good reason – and I will have to provide a couple of background links later, including a couple in Jonathan’s letter that I can’t reproduce at this moment.)

One thing I should add, though, is that whatever Jonathan and I do disagree about, we agree altogether on the need of the US government to offer a legal rationale for the practice.  As I said in my last post, CIA director Panetta’s assertion that the program is legal does not tell us enough to form a view.

Okay, with that, my thanks to Jonathan for taking the time to respond in so thoughtful a fashion and so advance this discussion.  (Dated March 22, 2010.)

Dear Ken,

I very much enjoyed meeting you and speaking with you at the conference last week. In case you hadn’t seen it, I thought I’d pass along this recent news item, which quotes Harold Koh saying he has conducted a legal review of the drone program and that the administration is likely to disclose its legal rationale.  In light of our conversation, I think we’ll both agree that this is a very positive development!

Also, this past weekend I came across the item you posted on Volokh debriefing the HLS conference. I also saw the recent posting about your upcoming Subcommittee testimony. Both of these postings were engaging, as usual. But in both cases you unfortunately misinterpret part of my HLS presentation and the ACLU’s position, prompting this reply, which you should feel free to post on Volokh or elsewhere.

You’re right that at the conference I made the point that drones and other remote-controlled technologies make it easier to project force anywhere in the world. As a factual matter, this seems clearly to be true. As was discussed at the conference, drones are cheap to produce, easy to use (requiring only a few months of training), and less costly to deploy than ordinary weapons systems. But the point of highlighting that fact was emphatically not to suggest that keeping troops out of harm’s way is a bad thing, or that troops should be put in danger in order to “restrain” the U.S. I didn’t make that point, and you’re incorrect to attribute it to me or to the ACLU.

So, why mention the fact that drones are easier to deploy than other weapons? The point of my presentation was transparency, and I was making the case for why basic information about the drone program should be disclosed. Remote-controlled technologies allow the U.S. to wage war without putting troops in harm’s way. Keeping troops safe is clearly a good thing. But when force is deployed primarily by remote-control, people might be less motivated, by their affinity and concern for soldiers at risk, to scrutinize what the government is doing. As such, when it comes to drone warfare, it is especially crucial to be vigilant in demanding transparency, so that the public knows what the government is doing in its name abroad.

The ACLU, the organization that I work for and represent as a lawyer, has filed a FOIA request and lawsuit in order to serve this democratic function. The ACLU is trying to facilitate the kind of public debate and discussion that is necessary and appropriate in a democracy when it comes to using lethal military force abroad. Targeting and killing specific people who are off the battlefield also raises significant civil liberties concerns – especially when the targets can include U.S. citizens, as the government has acknowledged. The public therefore has a right to the kind of basic information we’re seeking in this FOIA: the legal rationale and limits on the program, the internal oversight that ensures these methods are not abused, and the results of the program, in terms of civilian and non-civilians killed. Disclosure of this kind of information is important to satisfy the public that its government is conducting the drone campaign in a manner that is consistent with U.S. law, values, and interests. (It is also not the kind of information that should jeopardize national security if released – if it does, the government will surely withhold the documents and let us know why they can’t be released.)

That, in short, is the rationale for the ACLU’s efforts on the drone issue. As such, it is simply not the case that “the ACLU has decided to campaign on the issue of jus ad bellum, whether the US should be resorting to force and to what extent.” And let me be clear: the ACLU does not believe – nor did I express – the view that “the US needs to be restrained — through direct and personal exposure to death on the part of its soldiers — in order that it have the proper incentives not to over-resort to the use of force.” Perhaps other groups make this argument. But not the ACLU.

I appreciate that in discussing complicated matters like these, it is easy to be misunderstood or to misread a person’s meaning. But because you came away with the wrong impression from my talk, and because in your recent post you again misattributed this argument to me and the ACLU, it’s important that the record be corrected.

Having said all that, I concur with you that we agree on at least two things — i.e., the need for the administration to disclose the legal rationale for the drone program, and that there are geographical limits on the IHL justification for using drone strikes. But in light of what I’ve said above, it should be clear that we agree on more than just the two points you mentioned. Like you, I deplore the loss of soldiers’ lives in combat. I have immense respect for those who choose to serve in the armed forces. Some of the sharpest and most honorable people I have met are current or former servicemembers, including among them Tad Oelstrom and Missy Cummings, our fellow presenters at the HLS conference. As such, the suggestion that I think that U.S. lives should be put at risk unnecessarily – in order to create “the proper incentives not to over-resort to the use of force” or otherwise – is repugnant. Likewise, I imagine that we share a strong concern that the people on the receiving end of U.S. weapons not be civilians, and that the military do everything it can to minimize the loss of innocent life.

In any case, I, too, thought that the conference was extremely interesting and useful. The combination of speakers and topics was very good. I am grateful to the Harvard National Security Journal for putting it on and inviting me to attend. I also enjoyed meeting and chatting with you. And I am hopeful that the next time we meet, we’ll find at least a few more things to agree on!

Best wishes,

Jonathan

–

Jonathan Manes

Legal Fellow | National Security Project

American Civil Liberties Union Foundation

In the midst of the healthcare debate in Congress, other business does go on (sort of), including a subcommittee hearing on drone warfare, at which I’ll be testifying, along with some other experts, including the author of the seminal Wired for War, which put the issue of robotics and war squarely on the table.  I’ll post more later about my written testimony and about the process, but late tonight I’m preparing what I’m told can’t exceed four minutes of oral presentation.  Hmm.  What points can I make in four minutes?  Regular readers of my posts on the blog will not doubt think – none.  Well, subject to revision, but so far:

• CIA director Panetta has been conducting a visible, on the front pages, PR campaign to argue that the Program That Cannot Be Acknowledged in Pakistan (and elsewhere) is every bit as successful as administration officials, from the President on down, have said.  That’s great, but somewhat beside the point.  Most of us are convinced that it is successful; the question is whether, and on what basis, the program is legal.  On that, the administration says, it’s legal but gives no clue on what basis it thinks that.  It’s gotta step up to the plate and declare itself.
• The issue on the surface is drone warfare.  But in fact, drone warfare is a set of heterogeneous activities, conducted sometimes by the military as tactical air support, and sometimes, the other extreme, CIA strikes in far away places.  The use of drones by the military on the conventional battlefield is not really very controversial, not at bottom – it is just another standoff firing platform.  The real question on the table is the role of the CIA in the use of force.  Drones can be thought of as less the issue themselves, than the technological issue that forces the role of the CIA in the use of force onto the table.  This debate is fundamentally about the CIA.
• Defending the legality of drone warfare gets you to different places depending on what legal rationale you think fits the case.  Going down the road of armed conflict will finally rule the CIA out of it, as well as limit the geographical reach of the use of drones, whether by the CIA or the military.  That is an important reason – given that the Obama presidency is foursquare behind drone strikes in places well beyond the active battlefields of Afghanistan – why the administration’s lawyers should not be giving up the US’s traditional, longstanding position that it is legitimate to use force off the hot, active, traditional battlefields in pursuit of terrorists – but that the appropriate way to understand this as a matter of law is self-defense, rather than the narrower law of armed conflict.
• Folks who buy into the currently Jane Mayeresque tropes about drone warfare removing the constraints of geography, the “natural barriers” that US forces would otherwise have to fight their way through, as the ACLU’s lawyer put it at Harvard recently, and thereby reducing the US disincentive to use violence, had better be really clear what they are saying.  Because what they are saying is that the US will have easy incentives to reach to the drone as a weapon because its servicemen and women are not sufficiently at personal risk to deter the US from using force.  That’s what you mean when you talk about “removing natural barriers” or reducing the American disincentives to violence.  You mean that not enough US personnel are at risk of getting killed.  I’d be interested to meet the US Congressperson who’d like to stand up and make that argument.

Well, this needs work, but it’s 1:00 am.

I’m writing from Cambridge, where I just finished a great short conference on targeted killing and drone warfare put on by the Harvard Law School National Security Law Society and Journal. The  presentations should go up as video one of these days I hope!) and I highly recommend them if you are studying this topic. Particularly for us lawyer types, the presentations by engineering professor Missy Cummings and Kennedy School professor Tad Oelstrom – both former military aviators, among many other things – was highly informative about the real world of UAVs in military use. My thanks to all the students who put the conference together – we had a lovely dinner afterwards, and I enjoyed the conversation with them a great deal. My thanks to the law school as well for funding it – times are tough, even at places like Harvard – and I appreciate the dean and the school’s willingness to continue hosting events that allow for important legal and policy discussions to go forward.  (Delayed a couple of days posting this – travel and then internet problems at home.)

I tried to use my time at the conference to think through some of the questions I’ve been raising both in my first published piece on this subject, Targeted Killing in US Counterinsurgency Strategy and Law, and in the long opinion essay in last week’s Weekly Standard, Predators over Pakistan. I’m going to do a series of posts extending some of those discussions.

Probably the most important conclusion for me from discussions following my Predators over Pakistan essay is that I have not been sufficiently clear, with myself or in writing, that the appeal I am making to self-defense law does not preclude the application of the normal laws of war in those places where there is an armed conflict. Discussion of this topic seems a little bit like the blind men and the elephant – the military people responsible for a counterinsurgency ground war in Afghanistan see Predator strikes in their theatre of conflict, quite rightly, as not a big issue. It is not different, really, from the missile fired by a jet 25 or 30 miles away – it’s just another standoff platform. The legal rules of targeting are no different, and it’s just another standoff firing option.

At the other extreme, however, is the CIA using Predators to attack a targeted designated by the President under procedures outlined in US statutes for covert action by the CIA. Is that different, legally? US forces are in an armed conflict with Al Qaeda, and members of AQ, combatants if we find them in Afghanistan, flee to Somalia – so we chase them down there and fire at them with Predators run by the CIA. Why isn’t that just more of the “armed conflict”?   Same rules apply – geography is not really an issue.

I have argued that geography matters, not for its own sake, but rather more precisely, because in establishing whether you have an armed conflict to which the laws of war apply – displacing other regimes of law – you have to meet a threshold of active, sustained, etc., etc. hostilities and fighting (I’m not looking to be strictly precise here) if, as the US has said, particularly in the SCOTUS analysis, it is a non-international armed conflict with a non-state actor. I don’t think SCOTUS got it right. Moreover, it led to the unintended consequences of result-oriented jurisprudence, the Court seeking to find a basis on which to apply the standards of CA3, and leading the Court to conclude that a provision envisioned entirely (read Pictet) about internal civil war could apply by ignoring the territoriality phrase in CA3 to focus instead solely on the non-state actor part. I think the Court should simply have said that CA3 standards apply as some universal baseline standard irrespective of armed conflict, and it should left aside how it intended to get there, but it didn’t. It was not well-briefed on the issue, and waded into deep waters about the law of armed conflict with implications for many other important parties in the world.

Viz., it appears that territoriality is an issue after all. I don’t think the Bush administration got it right by defining the conflict as the “global” war on terror – it is one matter on which I agree with the critics, whether academics such as Mary Ellen O’Connell or organizations such as the ICRC. Nor can the AQ case be assimilated to WWII and chasing combatants around wherever they go – if you take the treaty language seriously, and the customary law intended by the United States and other states when drafting CA3 to keep the threshold of a non-international armed conflict high, then, yes, it matters legally that WWII was an international armed conflict and the AQ war a non-international one with a non-state actor. It seems anomalous, because despite the non-international language, we are following them around the world, but we have legally decided to focus exclusively on the non-state actor part, in order to apply CA3. If that is the case, then the customary law threshold matters. Continue reading ‘Drone Warfare and the Harvard National Security Conference’ »

Well, “polemic” is probably closer to it.  Regular readers have been hearing about this piece for a while, and I have posted various arguments from it (concerning targeted killing and Predator drones and the CIA and armed conflict and self-defense, and my general concern that the Obama administration has embraced a policy that its lawyers have not so far stood up publicly to defend as lawful against its gradually emerging critics in the international “soft law” community) here at Volokh and over at Opinio Juris.  I will post a couple of comments on the piece later, including of couple of things I wish I had clarified or said differently (and open it up for comments then).  Meanwhile, if you are interested, it is the cover in this week’s Weekly Standard (March 8, 2010).  It is also very, very long, at some 8,000 words – for which I am deeply grateful to the WS’s editors but you perhaps will not be – and so you might find it easier to read a pdf of the print edition at SSRN.

David Rittgers, a Cato legal analyst and former Special Forces officer, has an excellent op-ed in today’s Wall Street Journal on the use of Predator drones.  He cautions, on the one hand, against reflexively regarding drone attacks as nonjudicial execution or, really, functionally different from other weapons that soldiers might use – as well as cautioning against the idea that Congress or courts could somehow micromanage the use of these weapons.  On the other hand, he cautions against thinking that the problem of drones is that the US should be seeking to capture rather than kill because of the loss of intelligence; he notes that operationally, there are many reasons why capture is very often infeasible.  It’s a good piece, measured and sensible, and I highly recommend it.

I’ve been quiet around VC in the last little while as I, too, have been writing about Predators and targeted killing – expanding and moving beyond my book chapter from last year  on this topic.  Barring some big news on health care or some such, the Weekly Standard will be running a piece from me next week arguing something I’ve developed here at VC and at Opinio Juris blog:  first, that the administration’s lawyers need to step up to the plate and defend targeted killing using Predators and, second, the proper legal basis on which to defend it to the full extent undertaken by the Obama administration is the international law of self-defense, rather than simply the law of armed conflict, targeting combatants.

In another piece coming soon (this one a book chapter in a Hoover Institution online collection of essays from the Hoover Task Force on National Security and Law), I will be arguing a further step in this – one which relates to Rittgers WSJ op-ed.  Underlying much of the argument over drone warfare is a submerged factual and normative frame about who, what, and where.  Rittgers, for example, is drawing upon his extensive experience as a Special Forces officer, and reserve judge advocate, with three tours in Afghanistan, to point out that it is a mistake and really not possible to micromanage military operations in the field.  Nor is the use of a missile fired from a drone in battle significantly different from a missile fired from a manned aircraft, or a helicopter, or some other place.

Critics who call the practice extrajudicial execution, however, are frequently focused upon another scenario.  The version of it furthest from the hot battlefield scenario is a CIA directed drone missile strike upon a target in a compound far away from any theatre of active fighting, such as AfPak – someone in Yemen or Somalia, to take the obvious examples.  From the critics’ standpoint, it is a bit of bait and switch to defend drone missile attacks on the basis of their use on a hot, active battlefield, or even in a general theatre of conflict – for which, the critic will note, one might or might not include the “Pak” part of “AfPak” – and then turn around and say, therefore, a CIA attack in Somalia is similarly okay.  From the critics’ view, even if the theatre of conflict use by uniformed military is okay on traditional military targeting terms (and for the human rights monitors, it likely is not – or, more precisely, permissible in principle, but somehow not in any particular circumstances), that is not the same as the CIA’s global reach.  From the critics’ point of view, that is, what goes on operationally at ground level in Afghanistan somewhat misses the point.  From my view, too, what needs to be defended as legal policy by the United States is not principally that use of drone attacks – that is not at that point so much questioned, although perhaps I am too sanguine about it – but instead the CIA, covert action as a category, and targeted killing outside of the traditionally understood idea of  a zone of armed conflict.

This is one of the reasons that I regard the proper legal basis for Predator targeted killing to be the law of self-defense – it is what the Obama administration really intends, if it is not to fall back into the idea of a “global” war on terror, and yet also intends to preserve the traditional sovereign legal right to strike at non-state actor terrorists in their safe havens, if the relevant state cannot or will not deal with them.  The President and Vice President have said repeatedly – and in so doing, merely re-stating what ever president has asserted since transnational terrorism rose as a threat to Americans – that the US will take the fight to the terrorists, and pointedly said wherever that is and that terrorists will not be allowed safe haven, and that the US will strike on the basis of the terrorists’ intentions.  Nothing new in that, but the legal basis for the United States to do so is different from the legal basis on which it is lawful to use drones and missiles from drones in a theatre of active armed conflict.

The legal, normative, and moral arguments over drones, then, are not so much about hot battlefields, nor even largely about theatres of active armed conflict.  The arguments are about the use of drones and targeted killing by the covert services, the CIA, beyond those confines.  Understood that way, this is about drone warfare as a form of strategic airpower.  The attempt to dominate from the air on a global, or at least potentially extensive geographic, basis using unmanned airpower.  Not all of this is about counterterrorism or the use of smaller and more discriminating, person-specific weaponry.  The Israelis officially unveiled their massive, airliner sized drone aircraft, the purpose of which is presumably to be able to strike at nuclear facilities in Iran – not about targeted killing, but the classic projection of strategic airpower.

Again, one way of understanding the strategic frame is as strategic airpower – leveraging military capital over labor through drones, with the intention of developing a counter-raiding capability that extends over an ever greater geographic range, whether for large-weaponry anti-facility attacks or small-scale anti-individual targeted killing.  Strategic airpower has long been a holy grail – but it has never worked quite as successfully as each new iteration hopes.  The “light footprint” strategy based around counterterrorism, over the horizon drones and missiles, might or might not be a winning strategy; it might be, rather, that counterinsurgency through boots on the ground and denial of territory for safe havens is required, as many have believed in any sustained guerrilla conflict.  I don’t know the answer to that question; the administration’s long delay in determining its Afghanistan strategy was presumably, at the most abstract level, about answering exactly that.  What is clear is that whether pure counterterrorism without on-the-ground counterinsurgency, or counterinsurgency to control territory and population, drones are going to be important.

Put another way, particularly as they are used outside of the active counterinsurgency theatre of AfPak, drones, with sophisticated surveillance gear but also missiles, act as the lightest of light cavalry.  They probe, surveil, and engage in pinprick attacks, behind enemy lines, far beyond one’s own lines.  When the CIA engages in targeted killing against some Al Qaeda operative in Somalia, from a strategic perspective, it is a combat raiding strategy by very light cavalry indeed.  But it is so far beyond one’s own lines, as it were, that from a legal standpoint, I would place it beyond the legal “armed conflict” altogether and treat this combat raiding use of force, as a matter of law, as an exercise in lawful self-defense.

But this will get discussed (in numbing detail, I’m afraid) in the Weekly Standard piece.  How’s this for my proposed title – likely to be shot down – Predators over Pakistan, Lawyers over Langley?  :)

Over at the Los Angeles Times opinion page today, Sunday, February 21, 2010, Marjorie Miller has lined up various folks to opine on targeted killing and the presumed Mossad hit in Dubai against the founder of Hamas’ military wing.  The offerings are very short – a hundred or so words each – but I had no idea when approached I would be in such exalted company, including Philip Alston and Michael Walzer.

Harold Koh, Legal Adviser to the State Department, held an informal public discussion a couple of days ago with his predecessor from the Bush administration, John Bellinger.  This was an American Society of International Law event, held at John’s law firm, Arnold & Porter, and moderated by my old friend and ASIL’s Treasurer, Nancy Perkins.  CSPAN covered it, and the video is now available:  The Obama Administration and International Law, February 17, 2010.  (If I can find a youtube version from ASIL, I’ll see if I can embed it.)

I was teaching and so could not attend in person, but I have now watched the video and it is a terrific event.  My public thanks to Harold Koh, John Bellinger, and Nancy Perkins for doing it. It’s a good thing for an administration’s senior lawyers, who have a difficult task of both setting out legal policies and often highly abstract and complicated legal arguments – and at the same time communicating them to the public, in part the professionals and lawyers and diplomats, but also to a broader public.  While John was adviser, he experimented with entirely new avenues of discussion and communication, including a guest blogging appearance at Opinio Juris international law blog that was very well received.  Harold Koh has also been doing some experimentation with different avenues of communication, and this kind of unscripted, informal discussion is an outstanding example of that.

(One note I would add is that a very great virtue of this kind of unscripted event is that it is informal, and not every word, phrase, and utterance has been vetted and run through the law-machine for alternative interpretations, and so on.  So although I strongly urge everyone to watch the video closely, I believe equally strongly that one has to adopt a charitable interpretation of what the speaker intends, and not focus on individual words or phrases that, in a formal speech or court filing or testimony, might be far more carefully – but less informatively – phrased.  So, for example, when Justices Breyer and Scalia held a discussion at my law school a few years ago on constitutional comparativism, in writing about it, I declined to quote them directly, preferring to paraphrase, precisely because I thought direct quotation was a disservice to the informal spirit of the occasion.  To hammer on precise words in impromptu settings simply causes lawyers to be ever more circumspect and less forthcoming, and to limit their statements to much less useful formal occasions.)

The conversation ranged across a wide variety of issues, including something that Julian Ku noted over at Opinio Juris blog (where I’m cross-posting) with respect to DOS international law counsellor Sarah Cleveland’s recent University of Virginia Law School speech on the Obama administration and international law – the pace of treaty exchanges.  John flags Dean Koh on that issue, saying (my summary) that in 2007-2008, the State Department got the Senate to approve more treaties (a record 90 or thereabouts, I believe) than at any point in American history.

On the broad question of whether the Obama administration’s international law policies represent continuity or change, Dean Koh suggested somewhat wryly that to the extent that the old policies were good ones, they were being continued, and to the extent they weren’t, they were being changed.  But Dean Koh also pressed the general theme that the Obama administration inherited policies, practical as well as legal, from the previous administration and turning on a dime wasn’t very easy.

Dean Koh was asked about targeted killing, including a specific question about targeted killing aimed at American citizens.  The exchange takes place at approximately minutes 58-65 in the tape.  The context is a question from someone – I believe, but couldn’t quite hear the feed, from an NGO – unhappy with targeted killings of American citizens, and wanting to know, among other things, whether an American citizen would have the right to contest the evidence against him in a court.  I raise this because Dean Koh’s response was being directed to someone who had strong views, apparently, that the practice, particularly against Americans (who, in the view of the US government, had made themselves liable to attack by joining with groups in hostilities with the United States), was unlawful.  The nuance, in other words, might have been different had it been someone, wanting to know why the State Department wasn’t out in front defending targeted killing as a practice.

Dean Koh’s response was interesting, in that he noted that he had served in both Republican and Democratic administrations, and as a human rights lawyer had sued both Republican and Democratic administrations.  He added that he already a permanent job, and so in effect (I paraphrase) he wasn’t beholden to anyone in formulating his legal views.  He went on to say that he would leave the government if he concluded that targeted killing was illegal.  He did not say that he had concluded that it was legal, but that he would leave if he concluded that it was illegal and, (my) presumably, if that conclusion were not accepted by the administration.  Having said that, however, he added that he was still there. Continue reading ‘Harold Koh Discussion with John Bellinger on International Law and the Obama Administration’ »

I just finished up the initial draft of an essay for the Weekly Standard on drone warfare, self defense, and the CIA, riffing off of my chapter in Ben Wittes’s book.  One of my observations is that the Obama administration (and really the whole US government) seems to be remarkably sanguine about the other shoe dropping regarding the emerging “soft-law” campaign to undermine both drone warfare and, remarkably, the very idea of CIA covert action.  So I was interested to see this closing paragraph in former CIA director Michael Hayden’s Washington Post op ed on the Christmas bomber non-interrogation:

In August, the government unveiled the [High Value Detainee Interrogation Group] HIG for questioning al-Qaeda and announced that the FBI would begin questioning CIA officers about the alleged abuses in the 2004 inspector general’s report. They are apparently still getting organized for the al-Qaeda interrogations. But the interrogations of CIA personnel are well underway.

My prediction is that the something similar will be true, but in the form of investigations and prosecutions in European or foreign courts, or possibly some ICC prosecutor investigation in Afghanistan, of  CIA personnel and their role in Predator drone strikes within two or three years after the Obama administration leaves office.  Perhaps Intrade could set up a prediction market contract? 

Update:  Thanks, Glenn, for the Instalanche – and readers might be interested in the related topic of strategizing such a prosecution comes about, in an earlier Opinio Juris post called “Gaming Spain and Universal Jurisdiction.”  What a friend at the State Department called “cynical,” I call … game theory!

This won’t be as exciting or informative as the title suggests, apologies [although it turns out I have said rather more than I was going to; you can read an even longer version of my views at SSRN here].  The front page of the Washington Post carries a story from Dana Priest on US military and intelligence agencies’ involvement in Yemen (Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, WP, Wed., January 27, 2009, A1).  It is very well sourced and quite even-handed; in particular, the story does not spread the current journalistic meme, a la Eric Schmitt, of a “vengeance” campaign by the CIA.  It refers in part to the US, via the US military’s Joint Special Operations Command (JSOC), adding a US citizen, a radical Islamist cleric, to its capture-or-kill list:

As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said. The officials, like others interviewed for this article, spoke on the condition of anonymity because of the sensitivity of the operations.

Several VC readers have emailed to ask about the lawfulness of targeting a US citizen – in this instance, referring to the US military’s target list.  I understand there has been some blog commentary on it, particularly on the question of whether it is somehow unconstitutional so to target; I haven’t read it so won’t try to be specific.  I’m trying to reconstruct what I lost on my computer on, as it happens, targeted killing yesterday, so I don’t have time to answer this here.  Apologies, just swamped.  I’ll instead invite VC conspirators to talk to the constitutional questions, if they are inclined.   Continue reading ‘Targeted Killing Aimed at a US Citizen Abroad’ »

The Wall Street Journal has a weekend editorial on the same topic as my National Journal post below, Drone Wars, January 9, 2010.  Interestingly, I find myself believing that the WSJ editorial gets it, if not precisely wrong, at least puts the emphasis exactly backwards.  The WSJ editorial is primarily concerned to defend the “war” frame as a legal proposition for the global war on terror, and through that lens defend Predator drone attacks.  Only secondarily does it offer the idea of customary self-defense law, not necessarily part of an “armed conflict” as defined under IHL – meaning, treaties such as the Geneva Conventions.

I think the WSJ’s priorities here are part of the problem – not precisely wrong, but the wrong order of priority.  You can defend, as I do, the idea of a war on terror as a strategic frame for addressing terrorism – without, however, believing that you get or need all the legal particulars of a legal state of war everywhere on the globe.  The better way to approach this gap between the strategic frame and the law is that even though the strategic “war on terror” is not a war in a legal sense in all places in the world anywhere a target happens to located, the gap is filled by customary law of self-defense.

The Obama, Bush, and Clinton administrations apparently believed that they were on firmer legal ground going after “combatants” in an “armed conflict,” rather than relying on the customary law of self defense as an independent ground for the use of force.  Certainly it sounded better, as a law-PR matter, to say that one was targeting “combatants.”  What these administrations seemingly neglected to consider, as a legal matter, is that law of war treaties and customary law defining armed conflict actually have conditions and thresholds that must be met before all the particulars of the laws of war kick in.  Armed conflict in a legal sense is lex specialis, and you get its particulars only if the circumstances meet either the treaty law, in the case of inter-state conflict, or the customary law standards for armed conflict with a non-state actor, which requires sustained, persistent fighting and, in my view, in a place, even if loosely defined, and not simply the whole planet.  Armed conflict can break out in new places with a nonstate actor, but it does have to meet those thresholds.

(There is a problem here, one that I won’t address fully, but is important and not really much noticed.  Although a new “armed conflict” can get going outside of existing ones, the bias in this way of conceiving of it is that (absent the self-defense rationale, and assuming the territorial contraints and sustained fighting thresholds as I have described them) a “new” theater of armed conflict can be initiated by the non-state actors, where the NSA chooses to fight, but not by the state forces.  But notice that this isn’t really an issue for the legal frame for which non-state actor versus state conflicts were originally conceived, internal conflicts and civil wars in a territory; the territory is the national territory and so the problem of “global” war does not really arise.  It arises only if one accepts that a state can only fight in an armed conflict and armed conflict is territorial and theater-defined as a matter of law, but for that reason a state cannot initiate that use of force in a military sense without violating some human rights norms in revving up, so to speak, the fighting to a level at which an armed conflict exists.  This is a separate issue, however, and I won’t say more about it here.  It isn’t a problem, anyway, under self-defense, which was partly why it was not an issue in the past.  Framed the way the US has been framing its war on terror, however, it introduces yet another legal asymmetry in “asymmetrical warfare.”)

If it does not meet those thresholds, then, so far as the “international community” is concerned, the applicable law is the full weight of human rights law, under a view (never accepted by the United States) that the most important human rights treaty in this matter, the International Covenant on Civil and Political Rights, applies to the acts of US agents outside of the territory of the United States.  That is the basis, for example, on which the claim of “extrajudicial execution” is made against US Predator strikes – particularly in places like Yemen or Somalia, in which, although there are Al Qaeda targets present, it is difficult to make out a state of armed conflict with a non-state actor, because the fighting is not sufficiently persistent or sustained.

To be sure, the customary law standards for armed conflict with a non-state actor do not make a huge amount of sense in a borderless sense – they were conceived as a threshold for the application of Common Article Three of the Geneva Conventions, which covers internal and civil wars with non-state actor, and not for transnational terrorists who migrate around to many different places.  It was an innovation of the US Supreme Court in Hamdan – wanting the substantive standards of CA3 and willing to say whatever seemed necessary to get them – to declare that CA3 could apply to a borderless terrorist group such as Al Qaeda when it had never been conceived as a provision that applied outside of the traditional idea of civil war, internal to a state’s territory, with perhaps some spillover to safe havens, but not something in which territory was irrelevant.  Which is to say, Hamdan implicitly endorsed the idea of a global war on terror, although the idea of a global war in armed conflict terms is exceedingly … innovative is perhaps the kindest word.  It would have been better if the Supreme Court had simply said that there were minimum standards that always applied, and they were best stated in CA3, rather than saying that CA3 standards applied because it was a CA3 conflict.  If you are going after results-jurisprudence, just say so.

The better approach to this, rather than a global war on terror of the kind that the WSJ editorial goes to great, if mistaken, lengths to defend, is the customary law of self-defense.  That’s what the WSJ ought to be calling for first, rather than as an afterthought.  That’s the legal authority that permits the US to strike at its enemies whether in a combat theater or not, in safe havens far away from any regular battlefield, and it is the traditional authority on which the US has always relied.  And it is the authority on which the Obama administration is actually relying, if one looks to how it behaves.  That is, if you asked US government lawyers twenty or twenty-five years ago on what basis the US would strike Al Qaeda targets in Somalia, the answer would likely be, customary law of self-defense – if a state is unable or unwilling to control its territory, the non-state actor safe havens are liable to attack.

The sovereign  ”consent” argument that the WSJ puts first is true, as far as it goes – but it really ought to be the fall-back position.  Do we really think that if Yemen or Somalia refused to do anything about Al Qaeda operating from those territories, and refused to grant consent, the United States should or would refrain from attacking?  Consent is nice, but it is secondary to how the US in fact sees international law on this point, and how in fact it would behave. Ask candidate Obama who, after all, promised the American public that he would go after Al Qaeda in Pakistan, with or without Pakistan’s consent.  He was right, not just as a strategic matter, but as a matter of international law.  None of this is particular to the United States; this is how other great powers in the world that actually address military threats have behaved and would behave in regards to safe havens.

The US needs to plainly and publicly shift back to reliance upon customary law of self-defense in its Predator drone policies.  Not on a “global” war on terror, but on customary self-defense.  One reason this matters is that in the complex intertwining of activist, government, international organization, and academic positions around these debates, perception matters a lot.  One of the perceptions is that CIA officers engaged in these activities are legally much more vulnerable than a uniformed military person doing the identical task.  In making plain its reliance upon self-defense as the underlying legal basis for its targeted killing policy, the Obama administration has an important opportunity to make clear that self-defense law, which is not limited to armed conflict, allows – as US domestic law has since at least 1947 and the legislation creating the CIA – the use of force by civilian agents.  The reasons for using civilian agents versus military personnel are complicated – sometimes involving deniability, and other things.  But an assertion of self-defense as the legal basis would allow the Obama administration to affirm that it is lawful, under both international and domestic law, for CIA agents to engage in these activities, and that legal moves against them in other countries, now or in the future, would be distinctly unfriendlly.

The middle officials of the CIA in my estimation have doubts about that now – they see the whole activity moving the way that detention and interrogation did after 9/11, in part because targeting and detention, as Columbia Law professor Matthew Waxman has pointed out, have distinct similarities.  It is a point that both Waxman and Benjamin Wittes make in Shane Harris’ National Journal article.  The advocacy international community, for its part, seeks to move the debate that way.  Interrogation and detention have been made very legally uncertain activities for CIA personnel, and one part of targeted killing – only a part, however – is an incentive to kill rather than try to detain.  The advocacy folks would like to make Predator drone attacks as legally uncertain as detention and interrogation – and indications, at least in my experience, are that it does not take much uncertainty about what the future might hold in the way of Holder-style announcements, the possibility of indictments or arrest in Spain or other jurisdictions, and all that stretching into a long and unknown future, to induce changes in behavior by US personnel.  This is all very bad for the Obama administration, and it remains to be seen if it will step up to the plate and make clear that it stands behind its people, including its civilian officials in the CIA who are most vulnerable, on targeted killing.

It also remains to be seen whether Obama administration would actually be believed, as well.  It is an administration at risk of becoming known for saying merely whatever it thinks expedient in the moment, to whatever audience, for whatever ends.  You might disagree and it might indeed be an unfair characterization – but, again in my experience, that is what people in the relevant positions think.  The perception matters.  This is a legal position, however, and if the administration wants to reduce the legal uncertainty, it needs to have its legal officials state its legal position plainly and put themselves personally on the record as a matter of the US view of the law.  It matters if Harold Koh has reaffirmed his predecessors’ view on self-defense.

To that end, as well as the United States putting itself plainly on the record as to its legal rationales in the international community for targeted killing, the Obama administration needs to carry itself both beyond the narrow, inadequate, and not actually accurate legal position pressed by the WSJ editorial – and back to its customary law roots to the position that the US actually intends when it engages in targeted killing through Predators or other means, which is to say, self-defense.  The easiest way for the United States to make clear that this is its position as to what international law actually is, and that it is not an innovation on the US part nor a novelty, would be for it to return to Abraham Sofaer’s 1989 address on self-defense, a quite comprehensive speech on this topic regarding non-state actor terrorists, sovereignty and territory, the assassination ban, and other important topics in this area.  The WSJ editorial board needs to go back and re-read this speech, and press for it to be reaffirmed as US legal policy, and get away from its mistaken view that the way to approach targeted killing is as yet another way of reaffirming that this is a global war.  Self-defense gives the discretionary ability to attack anywhere in the world where a target is located, without having to make claims about a state of armed conflict everywhere and always across the world.

And the Obama administration, for its part, needs to reach beyond its indubitable state practice of targeted killing, and offer some opinio juris on the subject – i.e., its public and declared view of what international law on this topic is, as far as the US is concerned.  It should offer an affirmative rationale based in the law as the US has always understood it, and never disavowed – but not exactly reaffirmed in the last twenty years, either.  Let’s reduce the legal uncertainty and draw some firm lines.  A joint letter, signed by (oh, I don’t know, let’s dream) the general counsels or equivalents of DOS, DOD, DOJ, NSC, CIA, DNI, DHS, White House counsel, and perhaps a couple of others, reaffirming in toto the Sofaer address, and adding that any move by foreign states, courts, prosecutors, or international tribunals to go after American personnel, whether uniformed, civilian, or civilian contractors working to US government specifications, would be regarded as a distinctly unfriendly act.

(I’ll probably go back and fix some things later, but don’t have time now.)

(Update:  Thanks, Glenn, for the Instalanche!  Please see the further post above, on what I think the US legal position ought to be – what the Obama administration should be stating as its view of the relevant international law, and how I think the WSJ’s op-ed today in defense of drone strikes is not actually as protective of them as it might be.  I should add, too, that the part that Glenn was nice enough to quote is not really any different from what PW Singer says repeatedly in Wired for War, and indeed, I somewhat imagine that some of the human rights lawyers with whom I’ve had this conversation actually took their position from Singer.  It’s not some deep secret.)

The National Journal has a two part cover story on Predator drone strikes – required reading for those following the targeted killing and Predator drone developments, and although it is behind a subscription wall, no question that this National Journal issue is making the rounds of Washington and the agencies.  If you follow this topic, you’ll want to make sure you get a copy.

Part 1:  ‘Wanted: Dead’:  With little public debate or notice, the Obama administration has significantly stepped up its targeted assassinations, by James Kitfield. Well-sourced, well-researched story on the ramping up of targeted killing by the administration.

Part 2:  Are Drone Strikes Murder?  A growing number of experts say the legal foundations for targeted drone killings are shaky at best, by Shane Harris. Harris has sought out a wide variety of legal views for this piece, and the result is the best journalist take on the legal issues involved that I’ve read.  In particular, Harris has understood several things no other journalist has (at least that I’ve seen), including the importance in this debate of the customary international law of self-defense, and the controversies over what it makes to undertake “direct participation in hostilities” so as to make yourself a possible target.  Harris interviews a range of sources with, I guess, me on one side, and Mary Ellen O’Connell and Nils Melzer on the other.  But also John Radsan, William Banks, Matthew Waxman, and more – and lots of NGO folks, too.  This piece gets the argument over the law better than any journalism I’ve seen, and Harris has spent lots of time interviewing experts in depth to understand what’s at stake.

Not only is use of Predator drone strikes expanding, indications are that the Air Force has been moving forward with new and more discriminating technology - the “micro-drone” appears to be under development, according to a source indispensable for the outsider keeping up with military robotics, Wired’s Danger Room (under the fold): Continue reading ‘National Journal on Targeted Killing and Predator Drone Strikes’ »

Following up on Eric’s post re President Obama’s legal authority to target in Yemen …  I’m a bit of a broken record on the need for the United States government to articulate a more coherent legal basis for its targeted killing.  But it is just more so since the Christmas terrorist attack … the range of places in which the US might well decide it should attack safe havens is likely to grow, and so too the range of people to be targeted.  In one way, the fact that “Al Qaeda” took responsibility makes it easier for the USG to expand the range of places in which targeted killing gets used, because it means people (at least in the US) understands that AQ has not gone away.  On the other hand, Eric is right to point out that calling it Al Qaeda gets, well, notional after a while.  And anyway, the AUMF does not solve any international law problems, either in the resort to force or its conduct; it is an act of Congress.

All of which is why in my view, the United States needs to reaffirm the 1989 Sofaer doctrine on non-state actors, terrorism, safe havens, and self-defense.  As far as I am aware, it has never gone away or been rescinded – but it has not been publicly articulated as the view of the US government for a long time.  The essential element is that there is a category of use of force in self defense that is neither law enforcement, nor is it armed conflict in all the specificity of the laws of war because the use of force does not rise to the level of sustained fighting required under treaty and customary law of war.  It is its own category, self-defense; it is not standardless, because it is subject to the customary law requirements of necessity and proportionality – but it is a doctrine of international law that is flexible in responding to new situations, as the Sofaer doctrine says.

If anyone from DOS, DOD, DOJ, NSC, CIA, DNI, or the White House counsel’s office is reading this following the Christmas attack, and as you sit thinking about Yemen, Somalia, and who knows where down the road … you should be thinking hard about having the State Department Legal Adviser deliver a major speech in which the traditional category of self-defense, and the Sofaer speech in toto, is reaffirmed as the opinio juris of the United States and not “merely” its state practice.  If a state cannot or will not control its territory, the United States has no legal obligation to sit idly by – in armed conflict or out – to watch it being used as a safe haven for non-state actors.  President Obama has said this repeatedly in the last few months.  But that is not the same as the administration’s top legal officials stating so as a matter of the US view of international law on the use of force – publicly articulating it, and pointing out that this has always been the US view and it is nothing new, but is the lawful basis of the President’s policy.

Further to Orin’s terrific questions and discussion re targeted killing, I’m deep into xmas stuff, so I will simply point readers who might be interested in the direction of a book chapter of mine on targeted killing and US counterterrorism policy and law, available in nearly final form on SSRN, here.  It talks about the shift in incentives, away from detention and toward killing outright.  The one point I would emphasize is that one should not underestimate the effect of relatively small shifts in the perceptions of mid-level operatives in how they and others in similar situations might be treated down the road.  If your perception is that you run a risk by detaining and interrogating people, and anyway the options to harshly interrogate have been removed, then it simply changes the conversation from your standpoint.

You are dealing with people who can be targeted, and it is not necessary, under the rules in effect, to make a decision about whether the person could be detained.  You can shoot first.  There is no affirmative duty to ask first if they want to surrender.  In that case, the decision is not a serial one of decide whether you have an obligation to try and detain; and if it seems too dangerous then to strike to kill.  You are legally permitted to strike to kill, without warning and without obligation to offer surrender.  If that’s the case, and if the personal legal risks to you or your career, now or down the road, are as they are now, and disfavor interrogation or detention, then the incentive runs toward a targeted killing.  One might or might not think this should be the rule, and there are plenty of international law folks who sooner or later will be pressing to have this – and these US agents – treated as engaging in murder and extrajudicial execution.  But these are the rules under which the US currently operates, even if it has not – foolishly in my view – offered any firm, plain, clear, top level defenses of its legal rationales since Judge Abraham Sofaer’s 1989 Military Law Review speech.

One last thought and them I’m back to peace on earth, goodwill toward men. One reason the predator and hellfire are good things, from the standpoint of practical US policy and the interests of the agents involved, is that they don’t involve any possible claim by a human rights lawyer that the US agents involved refused to accept surrender.  You don’t have any obligation to offer it, but a missile strike avoids messy issues.

If this short report in Newsweek is true, then I think I would worry about legal liability more than before, if I were a CIA officer involved in Predator drone strikes.  I would have a much greater level of concern that the administration would not back me up in case of an indictment in a European court, for example.  Or that it would not take steps to ensure, once the Obama administration ends, that its officials would be protected from future prosecutions, by sending out an unambiguous message that no American administration, Democratic or Republican, will tolerate such moves against American officials.  The international community that largely regards drone strikes as

• (a) extrajudicial executions and murder by any other name;
• (b) American cowardice in using technological superiority to avoid having to take personal risks to confront its targets;
• (c) a reason why America’s enemies hide out among noncombatant human shields, with the result that the Americans “force” their enemies to violate the laws of war; and
• (d) an invitation for the United States to use violence as a tool of frequent convenience because it does not have its personnel at personal risk (rather than seeing these advances in technology as humanitarian steps forward over a quarter century to increase discrimination in targeting, and rather than seeing that not having its people at risk allows the targeting to proceed on a more methodical basis, rather than in-out with greater, rather than lesser, pressure to act in the moment),

has so far refrained from doing to US officials what it is endeavoring to do to Israeli officials because of a belief, so far as I can tell, that Obama personally backs this, as he did in his campaign up until now.  His personal authority, rather than views of the United States as such, is the key source of inhibition by NGOs, UN representatives, and others.  The political calculation for the international community in this kind of debate is simple: attacking the United States increases one’s global legitimacy, while attacking Obama, at least at this point, does not.

Signals by the administration in the other direction will likely embolden legal action against American officials once this administration is over.  Signals from the international community, if not vigorously contested and rejected by the Obama administration, that the international community will pursue such actions down the road will have pretty much the same effect today: to disincentivate American intelligence officials from doing anything that they are not 100% sure will be legally protected now and in the future.

It is crucial, in my view, that the administration put on the record, or be pushed into putting on the record, a plain and broad statement that its drone policy is legal, not on narrow grounds of an armed conflict in Afghanistan spilling over into Pakistan, but on broader grounds of self-defense.  It would be consistent with what the President said at West Point, after all, in referring to action in Yemen and Somalia or other places in order to deny Al Qaeda safe haven wherever it might go.  But the administration needs to say say, plainly and broadly, as a declaration of the American view of the international law of self-defense.

Says Newsweek’s Mark Hosenball:

One person standing in the way of expanded missile strikes: President Obama. Five administration officials tell NEWSWEEK that the president has sided with political and diplomatic advisers who argue that widening the scope of the drone attacks would be risky and unwise. Obama is concerned that firing missiles into urban areas like Quetta, where intelligence reports suggest that Taliban leader Mullah Mohammed Omar and other high-level militants have sometimes taken shelter, would greatly increase the risk of civilian casualties. It would also draw protests from Pakistani politicians and military leaders, who have been largely quiet about the drone attacks as long as they’ve been confined to the country’s out-of-sight border region. The White House has been encouraged by Pakistan’s own recent military efforts to root out militants along the Afghan border, and it does not want to jeopardize that cooperation.

Of course this is Newsweek; it is quasi-reporting and quasi-opinion, so it is hard to know what to make of this.  Hosenball might be spinning things; he might be getting spun; there are many possibilities.  But if this were true, and I were a covert operations official at the CIA, I would be worried.

(PS.  Update on the British arrest warrant against a senior Israeli official:)

Israel reacted angrily Tuesday to a British arrest warrant for former Foreign Minister Tzipi Livni on war-crimes allegations, with the government threatening to sideline the U.K. in Mideast peace talks.

A Westminster, London, magistrate court on Saturday issued the warrant, alleging crimes related to Israel’s military operations in the Gaza Strip in late 2008 and early 2009. Ms. Livni, who is now opposition leader, was foreign minister at the time and one of three government officials — with then-Prime Minister Ehud Olmert and Defense Minister Ehud Barak — to oversee the offensive.

The warrant was issued ahead of a U.K. convention of the Jewish National Fund, to which Ms. Livni had been invited, but had declined to attend. The warrant was revoked by the court on Monday after it was clear she wasn’t in the country.

Of course, it does not require an actual prosecution in order to create big effects; the uncertainties introduced about the future are enough to shift behavior today.  That is also true of CIA officials in this country – not knowing what will, or will not be, sufficient to provoke an arrest warrant abroad by some magistrate acting on vague and discretionary authority, such as Baltasar Garzon in Spain, and moreover acting in a climate of local public opinion against the foreign country and its agents, such as the United States or Israel.

The British legal system allows private individuals and organizations to request arrest warrants from local courts under the principle of “universal jurisdiction.” The judicial concept allows domestic courts around the world to try cases of war crimes and crimes against humanity, even if the infraction occurred abroad and the suspect isn’t a citizen.

In recent months, U.K. lawyers representing Palestinian groups sought an arrest warrant for Mr. Barak, but it was denied on grounds of diplomatic immunity.

Israel called for “immediate” action from the U.K. to block plaintiffs from using its legal system to put Israeli leaders on trial for actions in the Palestinian territories. Ms. Livni is the fourth senior Israeli official since 2004 that pro-Palestinian activists have sought to detain using British courts.

As this British situation shows, it is a process by which central government can shrug, if it wants to, say it’s the independent judiciary, we can do nothing, while allowing the process to be captured by activists and advocates further down the system.  Protests by Israel mean little, protests by the United States (if it is inclined to make them, which is far from guaranteed) mean little more.  And, to judge by the behavior of Spain, what matters is the protest, public or private, of a rising power with teeth and the expectation that it will be heeded – China’s private objections to Spain’s expansive universal jurisdiction provisions and the indirect threat of withholding economic benefits, I’m told by decently connected friends in Spain (but cannot verify), was important in getting Spain’s legislature to consider scaling back its ambitions on criminal universal jurisdiction.

It is also important to recognize that the United States has its own civil law version of such universal jurisdiction, the Alien Tort Statute – and one of these days, it too will face a challenge from China on behalf of one of its corporations getting sued in the US for its actions in Africa or elsewhere, and it will be exceedingly interesting to see how the US reacts.

One of my favorite issues of the New York Times Magazine is its “year in ideas” issue, which comes annually in December.  It has a short item this year related to battlefield robotics and law and ethics, by Dara Kerr, “Guilty Robots.” (If you go over the Opinio Juris version of this post, you can pick up the “robots” tag to get all the blogging there on international law of war and ethics and battlefield robots.)

[I]magine robots that obey injunctions like Immanuel Kant’s categorical imperative — acting rationally and with a sense of moral duty. This July, the roboticist Ronald Arkin of Georgia Tech finished a three-year project with the U.S. Army designing prototype software for autonomous ethical robots. He maintains that in limited situations, like countersniper operations or storming buildings, the software will actually allow robots to outperform humans from an ethical perspective.

“I believe these systems will have more information available to them than any human soldier could possibly process and manage at a given point in time and thus be able to make better informed decisions,” he says.

The software consists of what Arkin calls “ethical architecture,” which is based on international laws of war and rules of engagement.

The “guilty” part comes from a feature of Professor Arkin’s ethical architecture, in which certain parameters cause the robot to become more “worried” about the rising calculations of collateral damage and other such factors.

After considering several moral emotions like remorse, compassion and shame, Arkin decided to focus on modeling guilt because it can be used to condemn specific behavior and generate constructive change. While fighting, his robots assess battlefield damage and then use algorithms to calculate the appropriate level of guilt. If the damage includes noncombatant casualties or harm to civilian property, for instance, their guilt level increases. As the level grows, the robots may choose weapons with less risk of collateral damage or may refuse to fight altogether.

I am agnostic as to whether at some point in the future, robots might prove to be ethically superior to humans in making decisions about firing weapons on the battlefield.  When I say agnostic, I mean genuinely agnostic – it seems to me an open question of where technology goes, and in, say, a hundred years, who can say?  For thing, I do fully imagine that roboticized medicine, surgery and operations, will very possibly have reached the point where it might well be presumptive malpractice for the human doctor to override the machine.  It is not impossible for me to imagine – far from it – a time in which it would be a presumptive war crime for the human soldier to override the ethical decisions of the machine.

But maybe not.  Although I am strongly in favor of the kinds of research programs that Professor Arkin is undertaking, I think the ethical and legal  issues, whether the categorical rules or the proportionality rules, of warfare involve questions that humans have not managed to answer at the conceptual level.  Proportionality and what it means when seeking to weigh up radically incommensurable goods – military necessity and harm to civilians, for example – to start with in the law and ethics of war.  One reason I am excited by Professor Arkin’s attempts to perform these functions in machine terms, however, is that the detailed, step by step, project forces us to think through difficult conceptual issues regarding human ethics at the granular level that we might otherwise skip over with some quick assumptions.  Programming does not allow one to do that quite so easily.

And it is open to Professor Arkin to reply to the concern that humans don’t have a fully articulated framework, even at the basic conceptual level, for the ethics of warfare, so how then is a machine going to do it?  ”Well, in order to develop a machine, I don’t actually have to address those questions or solve those problems.  The robot doesn’t have to have more ethical answers than you humans – it just has to be able to do as well, even with the gaps and holes.” I’m not sure that answer (which I’m putting into Professor Arkin’s mouth entirely hypothetically, let me emphasize) would be sufficient – partly because I suspect that intuitions applied casuistically by human beings often encode and respond to facts that affect our ethical senses in ways that would not really be articulable, by human or machine.  And partly because we probably do think that in various ways, the machine has to be better than the human.

Many readers will by now be familiar with Peter W. Singer’s widely noticed Wired for War. But I would suggest following it up with Professor Arkin’s own new book, Governing Lethal Behavior in Autonomous Robots (particularly now that Amazon has dropped the price from $60 to $40).  (I guess I should also add that this discussion is about battlefield robotics in the sense of “autonomous” firing systems – not the current robotics question of human controlled, but remote platform unmanned combat vehicles, Predators and drones, and targeted killing.)

(Update:  Thanks Instapundit!  Let me add two things, looking to the comments.  First, I agree that “regret” is the correct term here, not “guilt.”  Guilt is the term used in the NYT article – but as moral emotions go, it is one of the most difficult conceptually to frame, and I say this as a student of one of the great philosophers on this topic, UCLA’s Herbert Morris.  Second, I agree that Professor Arkin does indeed mean “better” than human in a very limited, deliberately limited frame; to get a sense of the parameters he means, look at his excellent book.  Finally, for those concerned that without consciousness or intentionality on the part of a robot, no matter how sophisticated the programming, it isn’t really “morality,” I am happy to call it some form of moral simulacrum, because the issue, for these purposes, is how close behaviorally the robot can come via its programming.)

Several times in his West Point speech on Afghanistan and Pakistan, President Obama declared that the US would not permit Al Qaeda or “violent extremists” the use of safe havens.  He specifically noted Pakistan, Yemen, and Somalia.  The President unsurprisingly never overtly mentioned Predator or drone missile strikes, or the CIA as the operational agents in many instances of these far-from-covert actions.  But there is little doubt that both in the speech and in actual doctrine, targeted killing through drone strikes has been endorsed and indeed extended.

It was a tactic initiated by the Bush administration, but it was embraced and championed by the Obama administration, expanded and made a centerpiece of operations by it, as news stories before and after this speech in the NYT and Washington Post have repeatedly reported.  But an important question remains as to whether the administration is preserving through use and ‘opinio juris’ the legal authority and doctrines that support these sensible tactics.

Not the only tool of US will, of course – the President went to great lengths to discuss diplomacy, values, and many “soft power” options.  Targeted killing is a means, and a limited one; moreover it is not a strategic end in itself.  And it is also quite true that although speeches of this kind are often constructed so as to make oblique references to be understood as such, it is also a mistake to interpret a large policy pronouncement by reference to particular phrases and oblique references in isolation from the larger whole.  But reading the whole speech, there is little doubt that targeted killing is included among the vital tools for the projection of US power – not just in Afghanistan, not just in Pakistan (and the speech several times referred to Afghanistan and Pakistan together, for obvious strategic reasons – but a concept that some in the international law community find wrong or disturbing), but in places beyond.

Was one reference to drone attacks inserted in the speech when the President said that the United States “will have to be nimble and precise in our use of military power”?  Whether that or any particular bit was a reference to targeted killing, however, a core message of the President’s address as a whole was that the US would target terrorist leadership worldwide, not just in Afghanistan and Pakistan, and in ways that can most easily be attributed to targeted killing, including via Predators:

High-ranking al Qaeda and Taliban leaders have been killed, and we have stepped up the pressure on al Qaeda world-wide.

And the President added that we “cannot tolerate a safe-haven for terrorists whose location is known, and whose intentions are clear.”  Those places in the world were not just limited to AfPak, but specifically mentioned “Somalia and Yemen or elsewhere.”  Still, that said, the full context of this quotation shows that the administration regards soft power and hard power together in confronting “violent extremists”; there are multiple ways of interpreting this passage and what are undoubtedly its deliberate ambiguities:

The struggle against violent extremism will not be finished quickly, and it extends well beyond Afghanistan and Pakistan. It will be an enduring test of our free society, and our leadership in the world. And unlike the great power conflicts and clear lines of division that defined the 20th century, our effort will involve disorderly regions and diffuse enemies.

So as a result, America will have to show our strength in the way that we end wars and prevent conflict. We will have to be nimble and precise in our use of military power. Where al Qaeda and its allies attempt to establish a foothold – whether in Somalia or Yemen or elsewhere – they must be confronted by growing pressure and strong partnerships.

And we cannot count on military might alone. We have to invest in our homeland security, because we cannot capture or kill every violent extremist abroad. We have to improve and better coordinate our intelligence, so that we stay one step ahead of shadowy networks.

Lest anyone doubt that targeted killing is an important, indeed key strategy, Scott Shane reported in the New York Times a few days after the West Point speech on the US government’s expansion of the Predator program (Jonathan noted this article earlier), and a vigorous, off the record defense of it with respect to the two core issues – identification of targets and collateral damage – by an unnamed senior source at the CIA.

Shane did outstanding reporting on the controversies surrounding drone targeted killing (I will come back in another post to discuss the collateral damage controversies, but the article is well worth reading on that question.)  It appears to me that the CIA – independent of the Obama administration? – is slowly waking up to the likelihood that its operatives and officials will be targeted by the international law and human rights groups, quite possibly with cooperation from courts in Europe or the ICC prosecutor, if not now, then down the road once the Obama administration is out of office and these often-career officials are left holding the bag.

But the issues are not just targeted killing in relation to safe havens and terrorist leadership.  As David Sanger and Eric Schmitt report today in the New York Times, the Obama administration is now saying that it will use force, even across the border into Pakistan.  This might seem unremarkable, since the CIA is obviously already operating there – without official acknowledgment, if not really “covertly” in the strict sense.  From the standpoint of international law and lawyers, however, cross-border operations raise issues of consent, sovereignty, the UN Charter, and so on.  The US government says that the government of Pakistan has privately, but not publicly, consented to the CIA Predator strikes.  Will the government of Pakistan consent publicly to military strikes cross border against safe havens?  If it does not, what is the legal situation?

Candidate Obama said he would go into Pakistan – no mention of consent – in order to go after Al Qaeda and Bin Laden.  The administration now seems to be signaling its willingness to go in with more forces, and overtly military forces, partly in pursuit of Al Qaeda, but more obviously in support of the Afghanistan war, to eliminate the safe havens for the Taliban.

What about consent by Pakistan as a legal matter?  Much of the international law community would say that without it, or without a Security Council authorization, such incursion is prohibited, except possibly under some narrow “hot pursuit” or a few other limited exceptions.  The Obama administration might say that it either has consent – but what does that mean if the Pakistan government will not publicly acknowledge it?  Or that it has Security Council authorization for the Afghanistan war, and the elimination of safe havens is incident to that – but is that really so?

Regardless of the discussion within the international law community, the United States has never accepted the view that safe havens across borders were inviolable.  On the contrary, the US position has always been that if a government is unable or unwilling to control its territory, safe havens in that territory were liable to attack.  The Obama administration needs to stand up and plainly reaffirm that doctrine.  Not just to assert the modified-limited-hangout, we’re-slightly-ashamed-of-ourselves claim that “we have consent” or that “the Security Council said okay” – but what the US has always taken as international law, that safe havens are liable to attack, if the sovereign state is unwilling or unable to control its territory.  It is the position taken most clearly in the 1989 Abraham Sofaer speech, as Legal Adviser to the State Department – a speech taken as USG policy and its official view of international law.  (The text of the speech can be found here in pdf scan of the Military Law Review, where it was re-printed, but there are easier to read versions at Westlaw.)

Would the Obama administration seriously doubt that this plain statement by Judge Sofaer is its actual view of the law today?  The Sofaer speech has never been withdrawn; it remains, so far as I know, the official view of the USG.  But it has been allowed to gather dust in the past decade or so.  It should explicitly reaffirmed as the underlying US view, as general principle of law.  It is not the complete statement of law, because it is about terrorism and does not go on to the (legally easier) question of eliminating safe havens in armed conflict:

The United States also supports the right of a State to strike terrorists within the territory of another State where the terrorists are using that territory as a location from which to launch terrorist attacks and where the State involved has failed to respond effectively to a demand that the attacks be stopped.

The United States, and likely the Obama administration, is going to confront situations that are not covered by state consent or a Security Council resolution – but in which it will act, under doctrines of self-defense.  It would be in the adminstration’s interest, and the long term interest of the United States, to reaffirm this doctrine at the general level, and not merely piecemeal.

The NYT reports that the Administration will increase the use of unmanned drones for targeted killings in Pakistan.

The White House has authorized an expansion of the C.I.A.’s drone program in Pakistan’s lawless tribal areas, officials said this week, to parallel the president’s decision, announced Tuesday, to send 30,000 more troops to Afghanistan. American officials are talking with Pakistan about the possibility of striking in Baluchistan for the first time — a controversial move since it is outside the tribal areas — because that is where Afghan Taliban leaders are believed to hide.

By increasing covert pressure on Al Qaeda and its allies in Pakistan, while ground forces push back the Taliban’s advances in Afghanistan, American officials hope to eliminate any haven for militants in the region.

One of Washington’s worst-kept secrets, the drone program is quietly hailed by counterterrorism officials as a resounding success, eliminating key terrorists and throwing their operations into disarray. But despite close cooperation from Pakistani intelligence, the program has generated public anger in Pakistan, and some counterinsurgency experts wonder whether it does more harm than good. . . .

I’ve been traveling recently, and so have been away from posting.  One of the enforced virtues of traveling – one of the few virtues of traveling for me these days – is the plane flight with no internet.  And if the big guy in front of me reclines his seat, as he always does, I can’t even get to my computer.  So I read  on flights.  I should have some reading gadget, Kindle or whatever, but I’m not that far along yet, and for that matter I should get an economy class friendly little word-processor to use on flights, but I’m cheap.  Here’s a selection across the varied reading on my flights.  No particular theme or order, I’m afraid (on account of the mixed-up topics here, I think I won’t open to comments; too jumbled to be productive). Continue reading ‘Reading While Traveling, Hard Copy and No Internet’ »

Reuter’s reports on a speech given by Philip Alston at the UN, criticizing the US for its drone attacks or, at a minimum, for not being forthcoming on its drone attacks.  Professor Alston (a friend of mine and well known to many VC professor-readers as an NYU law professor) is the UN special rapporteur on extrajudicial execution.  (I would be curious to see video of the speech if anyone knew of a link; I found the Reuter’s description a little breathless.)

The United States must demonstrate that it is not randomly killing people in violation of international law through its use of unmanned drones on the Afghan border, a U.N. rights investigator said on Tuesday.

Philip Alston, a U.N. special rapporteur on extrajudicial, summary or arbitrary executions, also said the U.S. refusal to respond to U.N. concerns that the use of pilotless drones might result in illegal executions was an “untenable” position.

Alston, who is appointed by the U.N. Human Rights Council, said his concern over drones, or predators, had grown in the past few months as the U.S. military prominently used the weapons in the rugged border area between Afghanistan and Pakistan where fighting against insurgents has been heavy.

“What we need is for the United States to be more up front and say, ‘OK we’re prepared to discuss some aspects of this program,’” the Australian law professor told reporters.

“Otherwise you have the really problematic bottom line, which is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws,” he said.

As regular readers know, I think the Predator targeted killing program is perfectly legal; on the other hand, the unwillingness of either the Bush or, now, Obama administrations to state plainly the legal basis on which they believe it operates is a serious legal policy mistake.  What the administration needs to do is instruct Legal Adviser Harold Koh to give a speech that re-affirms the views taken by the US in the 1989 speech by then-Legal Adviser Abraham Sofaer.

It is a bad idea for the USG to do what it appears inclined to do (not just the Obama administration, but the Bush and Clinton administrations, too) and assert that the Predators are targeting combatants in an armed conflict, end of discussion.  From conversations I’ve had with various officials and ex-officials, and what little one can glean from the (foolishly, very foolishly) practically non-existent US opinio juris, the view seems to have been, and continues to be, that this is the narrowest and therefore most careful grounds on which to assert the legality of the actions.

Alas, no.  For the critics of targeted killing, for one to assert the right to target combatants, there must be a cognizable armed conflict under IHL – and it is not clear to many of the critics that Pakistan, rather than Afghanistan, counts.  And for the critics, Yemen or Somalia will definitely not count.  USG officials and ex-officials also seem to assume that because Congress authorized the AUMF, that act of jus ad bellum is sufficient to create an armed conflict with a non-state actor as a matter of jus in bello; critics will dispute that the former creates the latter and that it can run geographically wherever a “combatant” AQ operative happens to be, rather than a zone of substantial fighting.

Assuming arguendo that is so, then, according to the critics, you flunk having an armed conflict.  If you flunk having an armed conflict, then status as a combatant is irrelevant.  Any killing would then have to satisfy international human rights laws – also assuming, arguendo, for example, that the ICCPR were regarded as applying extraterritorially, as the critics do.  In the US view up to now, it does not – but it is very far from clear that the Obama administration will stick by that, though one hopes it has figured out the consequences for its Predator program if it does not.

The only real way for the administration to maintain what, in my view is a legally defensible, strategically vital, and indeed humanitarian measure – the alternative, note, is not “no fighting,” it is the Pakistani army fighting via artillery barrage, not a Hellfire missile – is to re-affirm the Sofaer position, which so far as I know the US has never formally dropped in any case, and assert self-defense irrespective of a state of IHL armed conflict.

According to the Reuter’s account, the US responded by telling the

Human Rights Council in June that it has an extensive legal framework to respond to unlawful killings. It also objected to Alston’s criticism, saying the U.N. investigator did not have the mandate to cover military and intelligence.

Alston wants to know the legal basis on which the United States is operating the drones, precautions it is taking to ensure these weapons are used strictly for purposes consistent with international humanitarian law, and what mechanisms are in place to review the use of the weapons.

“The response of the United States is simply untenable,” Alston said.

“And that (U.S. response) is that the Human Rights Council, and the General Assembly by definition, have no role in relation to killings that take place in relation to an armed conflict,” he said. “That would remove a great majority of issues that come before (the United Nations) right now.”

I don’t agree that the US position is untenable, nor do I think that the HRC or General Assembly has a role to play in killings “in relation to an armed conflict.”  Yes, the General Assembly or, for that matter, the Human Rights Council can opine on whatever they like – as they already do – and I understand if that is what was meant.

But the other possible meaning here is that the US has some legal obligation either to engage with that process or provide it with information or cooperate with it in some way with respect to killing in relation to an armed conflict.  In that regard, I see no obligation on the part of the US to take part, and think the Obama administration quite within its plain legal prerogatives.  There is, rather, an entire body of treaties of the laws of war and its conduct, none of which involves the General Assembly or the Human Rights Council, that regulate killing in relation to an armed conflict.

But note, as well, that the US Department of State’s response that the special rapporteur’s mandate does not extend to these matters is, so far as one can tell from public information, identical to the position taken by the Bush administration.