The Volokh Conspiracy

Charlie Savage reports in the NYT today that Philip Alston, the UN special rapporteur on extrajudicial execution, will be coming out with a new report next week calling on the US government to withdraw the CIA from conducting drone strikes and giving it over to the US military instead.  The article has an extended and very interesting discussion of various debates inside the US government among lawyers over the right way to see CIA participation, in relation to lawful combatant status, unprivileged belligerency, and crimes defined in the military commissions.

It’s a fascinating discussion on the lawyers’ debate inside the administration.  But let me reach broader than that frame, and offer a few comments on the larger intersection of ways in which one might, and ought to, see CIA drone strikes.  This goes indirectly to Charlie Savage’s exceedingly interesting NYT piece.

There are two ways of seeing a call that drone strikes be turned over to the US military, rather than conducted by the CIA.  One is fundamentally grounded in the binary that all uses of force must be either law enforcement or else armed conflict – and if so, there is no room for the CIA to be conducting these strikes.  In that case case, the call to take the CIA out of it is a way of reasserting the basic binary.  This is problematic from the US standpoint, if it is a way of reasserting this fundamental binary, since the Legal Adviser’s ASIL speech specifically preserves an independent ground of self-defense that is not a matter of armed conflict.  If CIA participation is unlawful because the binary holds, then the US has simply rejected the underlying premise – indeed, said that it has never accepted it, going back clear to the 1980s and beyond.

The other way to see a call to take the CIA out of the activity is on the ground that because this is an armed conflict, uses of force must be undertaken by lawful participants, and the CIA, as a civilian agency, is not a lawful participant.  Insofar as this is offered as something that is not driven by the fundamental binary above, then it is essentially a claim about the CIA not meeting the requirements lawfully to engage in hostilities – some version of the claim that the war with Al Qaeda is an armed conflict, and the CIA are not privileged combatants.  This is a technically more complicated claim in the rules of war than much of the public discussion has treated it.  Much of the public discussion seems to revolve around the idea that if you are a civilian, you are not allowed to take part in hostilities; the legal point, rather, is that there are numerous categories of civilians that have varying roles in direct participation in hostilities and the point is not to say that their participation is unlawful, it is that – if they were facing a lawful foe – they are themselves lawful targets.  Whether they wear uniforms or not is a question of whether the circumstances in which they wear uniforms, or non-standard uniforms (e.g., special forces in Afghanistan), etc., is a question of whether they fail to distinguish themselves from the non-combatants.  Insofar as they do this from Langely in some cubicle, that does not really present a problem.

As to the assertion that they have made themselves lawful targets – that would be true if engaged with a foe that could lawfully target anything.  In the case of a terrorist group – Al Qaeda, the IRA, ETA, etc., the automatic assumption that military lawyers sometimes make, that jus ad bellum and jus in bello are independent, is beside the point; these groups have no reciprocal right to target anything, irrespective of whether, in a lawful conflict, something or someone would be a target.  It is not the case that by flying a drone from Langley, the CIA operator is now a lawful target – he or shewould be if flying it in a conflict with, oh, North Korea, but not Al Qaeda.  Al Qaeda has no belligerency rights jus ad bellum, just as it has no combatant privilege jus in bello.  To suggest that the CIA at Langley has put itself into an “equivalent” position is not correct.  If the CIA at Langley were fighting a lawful actor, its participants would be lawful targets – although not, merely in virtue of not wearing uniforms inside Langley, “unlawful combatants.” But not as regards Al Qaeda. Continue reading ‘Drone Warfare, the CIA, and Charlie Savage’s NYT Article’ »

The New York Times, in a story by national security correspondent Mark Mazzetti today (Tuesday, May 25, 2010), reveals the contents of a September 2009 secret directive signed by General Petraeus ordering “broad expansion of clandestine military activity in an effort to disrupt militant groups or counter threats in Iran, Saudi Arabia, Somalia and other countries in the region.”  (The story also says it holds back “sensitive” details, which raises a different set of issues about the NYT making determinations about what is sensitive and what is not, but leave that for a different discussion.) (PS. If co-blogger Stewart Baker had any thoughts about this whole article and the policy issues, I’d certainly be interested to hear them.)

The document does not authorize any offensive use of force activities; the purposes are apparently intelligence-gathering and relationship building, in friendly and hostile countries.   Contingency plans related to thwarting expansion of terrorist networks as safe havens in AfPak and, presumably, Yemen are disrupted to other lightly governed or hostile places such as Somalia or Iran are important; likewise contingency plans around Iran nuclear weapons acquisition.   Of particular interest, beyond the news report itself, is the article’s discussion of the relationship between “clandestine” military activities and “covert” CIA actions (the statutory definition of “covert” for purposes of the intelligence community is found at USC Title 50, 413(b)(e)).  According to the article:

The order ... calls for clandestine activities that “cannot or will not be accomplished” by conventional military operations or “interagency activities,” a reference to American spy agencies ...  Unlike covert actions undertaken by the C.I.A., such clandestine activity does not require the president’s approval or regular reports to Congress, although Pentagon officials have said that any significant ventures are cleared through the National Security Council. Special Operations troops have already been sent into a number of countries to carry out reconnaissance missions, including operations to gather intelligence about airstrips and bridges.

One of the assumptions many people seem to have is that the military is more accountable than the CIA in such activities.  I’m not suggesting any problem with the activities described in this article by the military – far from it – but as the article says, these clandestine activities do not require the regular covert action accountability mechanisms required of the CIA as a matter of law, although NSC is involved in anything significant.

However, as these activities get closer to, well, “spying” in the traditional sense, then the line between clandestine and covert risks becoming blurred.  Besides the statutory definition of covert, the term also refers to the fact that US military personnel, even though acting clandestinely, will be acknowledged by the US if taken prisoner and it will demand Geneva III treatment for them.  But the article says that many in the military “are also concerned that as American troops assume roles far from traditional combat, they would be at risk of being treated as spies if captured and denied the Geneva Convention protections afforded military detainees.”

CIA civilian operatives do not have that assurance of being avowed, and of course in many circumstances – though not all, because covert refers to many things beyond the use of force, including information and disinformation activities, things that are not necessarily illegal under a country’s local law – their activities will be illegal espionage, and in other more extreme cases murder under local law.  This is the whole issue of NOC.  (BTW, there is a fun and useful FAQs page at the CIA’s website that covers a number of questions both policy and practical, including internship opportunities at the CIA.)  Here is what the CIA itself tells the public about covert action on its web page (emphasis added):

7. Who decides when CIA should participate in covert actions, and why?

Only the president can direct the CIA to undertake a covert action. Such actions usually are recommended by the National Security Council (NSC). Covert actions are considered when the NSC judges that US foreign policy objectives may not be fully realized by normal diplomatic means and when military action is deemed to be too extreme an option. Therefore, the Agency may be directed to conduct a special activity abroad in support of foreign policy where the role of the US government is neither apparent nor publicly acknowledged. Once tasked, the intelligence oversight committees of the Congress must be notified.

These activities are not illegal under US law, of course, provided that the requirements of the different services – the military or the civilian agencies – are followed, including required accountability and oversight.  Nor are they illegal, in my view, under international law; state practice by a wide variety of states has sanctioned espionage, up to and including uses of force illegal under the local law of the sovereign, so widely and for so long that the rule would have to be something like, “liable under local sovereign law but not contrary to international law,” including uses of force if they are correctly described as “self-defense.”

However, as a matter of US policy, the divisions between the various services matter over the long run, and so there are important questions as to the proper division of roles.  Many people in the international law community – believing that all lawful use of force divide into law enforcement and armed conflict – naturally believe that as domestic law and policy, the CIA should not have a role in using force.  As I remarked in a second round of Congressional hearings a few weeks ago on drone warfare (I’ll post this soon to SSRN), states have not generally found that the best solution to real-world problems.  States want, and in my view of international law, have plainly preserved, the ability to use covert force and preserve deniability and indeed in an extreme situation disavow the civilian agent.  It appears to many states an important security capability, including the United States.

On another hand, there are real questions as to whether – as a matter of policy, not law – the CIA is the right agency to conduct what increasingly looks to amount to a parallel conventional war using drones in Pakistan, not in a pure counterterrorism strategy, but really in support of the conventional war by Pakistan against the Pakistan Taliban.  As a matter of internal US division of labor, there are policy (again, not legal) questions as to whether the CIA should be engaged in overt conventional war, or something starting to approach that.  Yet the real world constraint – trumping, it would appear up to this point and probably for quite some time – is Pakistan’s desire to have a fig leaf of deniability as to a US military role.

Conversely, as the Mazzetti article signaled there are important questions as to whether it is a good idea to have the US military expanding further into clandestine, secret – covert, in the vernacular, not legal term-of-art, sense – operations.  As I said, in some important respects, civilian oversight and accountability is stronger regarding the CIA – although I believe that in any case, the rise of new technologies such as smaller and smaller drones that allow for still more discrete uses of force argue for a review and revamping of oversight and accountability.

In effect, Petraeus is seeking to outflank the transnational terrorist enemies by anticipating where they might go, what new groups with the same tendency of violent jihadist beliefs might arise in places outside of the places – Pakistan, Yemen, Saudi Arabia, Somalia, Iran, etc. – where they currently arise or find haven.  He wants to get there first, with knowledgeable people – for the long term and, presumably for the medium term, have intelligence capabilities with respect to Iran.  As several officials quoted in the article say, this does not raise a big problem with the intelligence agencies, given that there is plenty of work to go around.  But it does raise longer term policy issues about who should do what kinds of things.

My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.

Most of Russell’s paper concentrates on Simkins’ career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown’s book The Invisible Empire: The Ku Klux Klan in Florida.

Continue reading ‘The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school’ »

Adam Entous, military affairs correspondent for Reuters, has authored, along with several colleagues, an outstanding, smart, balanced, and well-reported story on the evolution of drone warfare and targeted killing.  A lot of reporting effort went into this story – this is not just an instance of a reporter being offered a little nugget of inside information and running with it.  I was interviewed at some length for the legal aspects of the story, and if my experience is any indication of the rest of the reporting, it is very well reported.  My Opinio Juris co-blogger Julian Ku picked up the story first over at OJ, “How the White House came to love the drone.”  But for my part, here at Volokh, I want to comment on a couple of the other issues  in the story – concentrating not on the legal issues, but instead on the strategic evolution.

First, the Reuters story undertakes a very interesting analysis of the kinds and numbers of fighters being killed, to the conclusion that drone warfare in Pakistan is increasingly focused on taking out relatively low-level fighters, and in much greater numbers.  And notwithstanding a wealth of important quotations and analysis of different legal and policy matters, the biggest takeaway of the story is this:

In the rugged mountains of western Pakistan, missiles launched by unmanned Predator or Reaper drones have become so commonplace that some U.S. officials liken them to modern-day “cannon fire.” And they are no longer aimed solely at “high-value” targets like Mehsud, according to U.S. counterterrorism and defense officials.

Under a secret directive first issued by former President George W. Bush and continued by Barack Obama, the CIA has broadly expanded the “target set” for drone strikes. As a result, what is still officially classified as a covert campaign on Pakistan’s side of the border with Afghanistan has in many ways morphed into a parallel conventional war, several experts say.

Which is to say, the conflict in Pakistan has evolved to the point that, although the Pakistani government does not say so publicly, and neither does the US, one can say either that the conventional war in AfPak has widened to include the Pakistan Taliban or else that a secondary conventional conflict has opened up within the primary one.  Recall that two or three years ago, Pakistan was battling, or not, depending on the period, its own Taliban – but we were not directly involved, except in support of their fight.  Things have clearly broadened to the point that we and the Pakistani government are battling the Pakistan Taliban.  And, noting the Times Square bomber, the Pakistani Taliban have been planning for some time now how to bring the battle to us.

This, I would suggest, is the most important reason why the Reuters analysis found a greater emphasis on killing low level soldiers.  This is no longer covert, or not so covert, targeted killings of high value individuals, but a more discretely aimed part of the overt conventional war.  Cannon fire, but using vastly more precise weaponry – rather than something outside of the regular military operations, this is now part of the overt war, using much more precise weapons.  It is a weapon being used to harass the enemy’s rear – an unusual weapon in a quite usual battlefield role. Continue reading ‘The Changing Conflict in Pakistan, and Targeted Killing’ »

Rick Pildes and David Golove have a calm, reasoned discussion at Balkinization on ways to deal with terrorism related detentions and trials.  They call for an approach that mingles aspects of criminal law and armed conflict law.  They emphasize the need for a legislated system.   (It is true, of course, that I am an advocate of a national security court approach to both detention and trial, so I am predisposed to some form of the “melding” view, and am also strongly committed to legislating a system for all this – but regardless of where you start, I think this is an excellent discussion.)  A bit from the opening:

Neither the developed legal framework for dealing with crime or war is adequate for responding to terrorism. That is part of why debates remain so polarizing: Insisting that either the war or crime model must be the right one, in an either-or-choice, will inevitably lead to divisive debates in which both sides can do little more than talk past one another. The only sustainable solution is going to require recognizing the need for intermediate approaches that borrow from both the war and crime models, while embracing neither in full. And institutionally, the best way of forging those approaches will be through shared responsibility between Congress and the President, even in these highly polarized times.

Congress and the Supreme Court have recognized already that the crime model is not fully sufficient. In the Authorization for the Use of Military Force, passed shortly after 9/11, Congress authorized the President to employ military force against those responsible. The Supreme Court concluded that this legalized detentions that were consistent with the traditional “laws of war.” While the precise contours of this detention power remain unclear, the judicial and political endorsement of military detention makes clear that modern terrorism has called into play the government’s war powers. Similarly, Congress clearly contemplates the use of military commissions to try at least some enemy combatants; in the fall of 2009, Congress and President Obama crafted new legislation to provide more structure to the rules and processes that will govern these commissions. And while the decision of where to try KSM remains controversial, the decision to try the U.S.S. Cole bombers before military commissions appears much less so. These are all signs of a political consensus that the ordinary processes of criminal law, which undoubtedly have some role to play in counterterrorism law, are nonetheless not fully adequate. To insist that only the crime model should be applied to terrorism is to resist a conclusion that all three branches of government, across two administrations now, have reached.

Yet to conclude the crime model is not fully adequate is not to say that the war model is. Government’s constitutional war powers will surely play a role, as they have. But for at least two reasons, the war model is also not fully up to the task of deciding the legal powers that government has, or should use, in countering terrorism. First, the war model – like the crime model – was not developed to address the unique problems of modern non-state terrorism. Those problems raise many practical difficulties that the traditional laws of war, and the American constitutional tradition of war powers, have never confronted. The most obvious of these is the prospect of indefinite military detention, a prospect made more pressing now that the Obama administration has concluded that around 48 people at Guantanamo are too dangerous to release, but cannot properly be tried for various reasons. Traditionally, countries engaged in exchanges of prisoners of war, both during the war and at its end. Neither American constitutional practice, nor the international laws of war, contain any direct answer as to the rules and procedures that ought to govern detention for wars that quite plausibly may last for decades.

Yet policy concerning ongoing detention is one of the most urgent issues the United States faces. For nearly a decade now, we have stumbled around this issue, unwilling to confront the reality that we are engaging in preventive detention. Any such system, particularly under military custody, provokes many understandable concerns. Even if the initial decision to detain is legally valid, for how long should detention last? Is detention appropriate only as long as the person remains dangerous? If so, what kind of hearings should be held to determine that issue? How often should those hearings have to be held? Before what kind of institutions? Should the courts be involved in overseeing the continuing validity of these detentions? Should the length of detention be related to the nature of the underlying actions for which the person was originally detained? It is of no help in answering those questions to say the country is “at war” and the government therefore possesses all its traditional war powers. For that tradition does not contain any direct answers to these novel questions. The answers to these questions cannot be left open-ended, nor be (or be seen to be) ad hoc responses to the political pressures of the moment. Yet if the government believes it must invoke these more aggressive measures, wise policy is going to recognize the need also to ensure they are employed with enough oversight and accountability to make them sustainable. If Congress and the President do not grasp the nettle on this point, the courts are likely to rush to fill the void.

Former DOS Legal Adviser  John Bellinger has a short opinion column out at the Council on Foreign Relations site (corrected link, I hope!), discussing continuity and change in US detention policy on counterterrorism.  John takes up a range of issues, from trials to repatriation and more, and concludes that there is mostly continuity with the second Bush term.  I agree.  I’ve suggested that the legal rationales underlying targeted killing and drone warfare have somewhat shifted, at least so far as outsiders unprivy to inside legal documents can tell, through a re-affirmation of international law of self-defense, and following the Adam Serwer post I mentioned earlier, I would add with respect to the issue of targeting an American citizen who has taken up an operational role, as well.  But overall, and in the detention questions particularly, I quite agree with John’s assessment.  The column is a good, short, robust statement of the issues.

Adam Serwer, a journalist and blogger at the American Prospect, makes this observation in a very interesting post (linked in Robert Wright’s NYT Opinionator column) at the American Prospect Tapped blog (via The Progressive Realist):

State Department Legal Adviser Harold Koh‘s speech to the American Society of International Law has mostly been read as a justification of the administration’s use of drone strikes against suspected al-Qaeda targets. With the news that the Obama administration has targeted American-born extremist cleric Anwar al-Awlaki for death, I went back to Koh’s explanation for why the drone strikes are legal. It seems to me that his arguments could possibly double as a justification of the government’s authority to kill al-Awlaki without due process.

Serwer then walks back through the text of Legal Adviser Koh’s speech, applying the language about drones to the targeting of Anwar al-Awlaki.  He concludes that it could be seen as a justification for that as well.  I think that’s right, and a good observation.  Of course, I think also that targeting al-Awlaki is a good idea, legally justified, and moreover think this a persuasive basis for so concluding.

My dear friend Sandy Levinson posts briefly on this over at Balkinization, and comments on a speech by Jack Goldsmith at University of Texas:

I note that Jack Goldsmith gave an excellent talk at the University of Texas last week making the argument that in almost all fundamental respects the Obama Administration is continuing the “anti- and counter-terrorism” policies of the “second Bush Administration,” i.e., the second-term Bush presidency that freed itself, to at least some extent, from the mad-dog unilaterlism identified with Dick Cheney, David Addington, and John Yoo. It is difficult to disagree with Goldsmith’s argument, empirically. Whether we should be cheered or dejected is, of course, another matter entirely.

Curiously, this is one of the few matters on which I think that the Obama administration is not actually continuing the Bush administration policies – at least if policies includes legal justification as well as surface actions.  Legal Adviser Koh’s statement on drones and its explicit appeal to legitimate self-defense apart from armed conflict, as a basis for targeting (and agreeing here with Serwer, including targeting Americans), is simultaneously a break with Bush administration policy (even while, in one sense, broadening it), and a re-affirmation of a legal policy going back to the Reagan-Bush years.

The self-defense assertion is important, and intellectually engaging, precisely because it is not the ground on which the Bush administration claimed its ability to target people.  For the Bush administration, it was always armed conflict, global and plenary; for the Obama administration, it allows for two strikingly different legal rationales.  And yet the self-defense rationale has the further characteristic of being a break with the Bush administration – while also being a return to a longer, and deeper tradition in the use of force by the United States.

Legal Adviser Koh alluded to the importance and, within the executive branch and the State Department, the independent weight of that traditional jurisprudence in the beginning of his speech, in which he made some important – but by the press largely not-understood as being important – prefatory framing remarks about the internal jurisprudence of the executive branch.  Those methodological remarks were at once a response to Koh’s critics on his right, but also a warning (not enthusiastically received, to be sure) to the academic audience at ASIL to his left.

But drones and done targeting constitutes the exception rather than the rule of Obama administration counterterrorism policies and their continuity with the Bush second term; and overall, I quite agree with Jack and Sandy’s assessment.

I’ve noticed a number of posts and comments around the blogosphere on the spread of UAV technology.  Which indeed is happening; many states are developing and deploying UAVs of various kinds.  The WCL National Security Law Brief blog, for example, notes that India is now acquiring weaponized UAVs:

India is reportedly preparing to have “killer” unmanned aerial vehicles (UAVs) in response to possible threats from Pakistan and China. Until now India has denied the use of armed UAVs, but they did use UAVs that can detect incoming missile attacks or border incursions.

The importance of obtaining armed UAVs grew enormously after the recent attack on paramilitary forces in Chhattisgarh that killed 75 security personnel. Sources reveal that the Indian Air Force (IAF) has been in contact with Israeli arms suppliers in New Delhi recently. The IAF is looking to operate Israeli Harop armed UAVs from 2011 onwards, and other units of the armed forces will follow.

I’ve also read comments various places suggesting that increased use of drone technologies by the United States causes other countries to follow suit, or to develop or acquire similar technologies.  In some cases, the dangling implication is that if the US would not get involved in such technologies, others would not follow suit.

In some relatively rare cases of weapons technologies, the US refraining from undertaking the R&D, or stopping short of a deployable weapon, might induce others not to build the same weapon.  Perhaps the best example is the US stopping its development of blinding laser antipersonnel weapons in the 1990s; if others, particularly the Chinese, have developed them to a deployable weapon, I’m not aware of it.  The US stopped partly in relation to a developing international campaign, modeled on the landmines ban campaign, but mostly because of a strong sense of revulsion and pushback by US line officers.  Moreover, there was a strong sense that such a weapon (somewhat like chemical weapons) would be not deeply useful on a battlefield – but would be tremendously threatening as a pure terrorism weapon against civilians.  In any case, the technologies involved would be advanced for R&D, construction, maintenance, and deployment, at least for a while.

The situation is altogether different in the case of UAVs.  The biggest reason is that the flying-around part of UAVs – the avionics and control of a drone aircraft in flight – is not particularly high technology  at all.  It is in range of pretty much any functioning state military that flies anything at all.  The same for the weaponry, if all you’re looking to do is fire a missile, such as an anti-tank missile like the Hellfire.  It’s not high technology, it is well within the reach of pretty much any state military.  Iran?  Without thinking twice.  Burma?  Sure.  Zimbabwe?  If it really wanted to, probably.

So it doesn’t make any substantial difference whether or not the US deploys UAVs, not in relation to a decision by other states to deploy their own.  The US decision to use and deploy UAVs does not drive others’ decisions one way or the other.  They make that decision in nearly all cases – Iran perhaps being an exception in wanting to be able to show that they can use them in or over the Iraqi border – in relation to their particular security perceptions.  Many states have reasons to want to have UAVs, for surveillance as well as use of force.  It is not as a counter or defense to the US use of UAVs.

The real issue is not flying the plane or putting a missile on it.  The question is the sensor technology (and related communication links) – for two reasons.  One is the ability to identify the target; the other is to determine the level, acceptable or not, of collateral damage in relation to the target. That’s the technologically difficult part.  And yet it is not something important to very many of the militaries that might want to use UAVs, because not that many are going to be worried about the use of UAVs for discrete, targeted killing.  Not so discrete and not so targeted will be just fine – and that does not require super-advanced technology.   China might decide that it wants an advanced assassination platform that would depend on such sensors, and in any case be interested in investing in such technology for many reasons – but that is not going to describe Iran or very many other places that are capable of deploying and using weaponized UAVs.  Iran, for example, won’t have super advanced sensor technology (unless China sells it to them), but they will have UAVs.

(The attached weaponry follows the same pattern.  Most countries will find a Hellfire type missile just fine.  The US will continue to develop smaller weapons finally capable of a single person hit.  Few others will develop it, partly because they don’t care and partly because its effectiveness depends on advanced sensors that they are not likely to have.)

Robots are broadly defined by three characteristics – computation, sensor inputs, and gross movement.  Movement in the case of a weaponized robot includes both movement and the use of its weapon – meaning, flying the UAV and firing a weapon.  The first of those, flying the UAV, is available widely; primitive weapons are available widely as well, and so is the fundamental computational power.  Sensors are much, much more difficult – but only to the extent that a party cares about discretion in targeting.  But it is not the case that they are making these decisions on account of US decisions about UAVs; UAVs are useful for many other reasons for many other parties, all on their own.

Scott Shane’s report in this morning’s NYT on the Obama administration putting the radical cleric, but US citizen, Anwar al-Awlaki, on the kill or capture list has stirred a lot of discussion.  (Update: let me add Max Fisher’s Atlantic discussion as well.)  Scott Shane:

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

Mr. Awlaki, who was born in New Mexico and spent years in the United States as an imam, is in hiding in Yemen. He has been the focus of intense scrutiny since he was linked to Maj. Nidal Malik Hasan, the Army psychiatrist accused of killing 13 people at Fort Hood, Tex., in November, and then to Umar Farouk Abdulmutallab, the Nigerian man charged with trying to blow up a Detroit-bound airliner on Dec. 25.

American counterterrorism officials say Mr. Awlaki is an operative of Al Qaeda in the Arabian Peninsula, the affiliate of the terror network in Yemen and Saudi Arabia. They say they believe that he has become a recruiter for the terrorist network, feeding prospects into plots aimed at the United States and at Americans abroad, the officials said.

It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president.

But the director of national intelligence, Dennis C. Blair, told a House hearing in February that such a step was possible. “We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.” He did not name Mr. Awlaki as a target.

The step taken against Mr. Awlaki, which occurred earlier this year, is a vivid illustration of his rise to prominence in the constellation of terrorist leaders. But his popularity as a cleric, whose lectures on Islamic scripture have a large following among English-speaking Muslims, means any action against him could rebound against the United States in the larger ideological campaign against Al Qaeda.

The possibility that Mr. Awlaki might be added to the target list was reported by The Los Angeles Times in January, and Reuters reported on Tuesday that he was approved for capture or killing.

“The danger Awlaki poses to this country is no longer confined to words,” said an American official, who like other current and former officials interviewed for this article spoke of the classified counterterrorism measures on the condition of anonymity. “He’s gotten involved in plots.”

The official added: “The United States works, exactly as the American people expect, to overcome threats to their security, and this individual — through his own actions — has become one. Awlaki knows what he’s done, and he knows he won’t be met with handshakes and flowers. None of this should surprise anyone.”

I do not have time to comment on this now, but instead refer readers to a couple of discussions at Opinio Juris international law blog.  One is by Julian Ku, raising the basic question – but see the comments as well, including the brief comment by Kal Raustiala, author of a new and leading book, Does the Constitution Follow the Flag?, and comments from John Dehn at West Point, Jordan Paust at Houston, and Howard Gilbert as of now.

Then there is a post on a slightly different question from Kevin Jon Heller, asking about the effect in domestic law of a place where a killing might occur.  There should be some more comments to each.  I will try to get something up myself, but quite swept up in the broader targeted killing discussion, responding to journalists.  I will limit myself to noting that the legal answer is, in my view, yes – but how you get to yes differs depending upon whether you think this particular targeting is in an armed conflict in a strict legal sense, or whether you think it is an act of legitimate self-defense, as the Legal Adviser referenced in his ASIL speech.

It’s not true that everything I do is about drone warfare, but it has taken a lot of my time lately and, of course, a lot of stuff is happening, both on the operational side as well as legal side.  So here’s a little round-up of links, more or less at random.

First, the New York Times has a front page article today, looking at the impact of drones on terrorist and militant activities in Waziristan.  It is an interesting piece, not least because it acknowledges not just the effectiveness of the campaign, but the effectiveness of the Obama administration’s sharply ramped-up CIA campaign.  (HT Instapundit.)

A stepped-up campaign of American drone strikes over the past three months has battered Al Qaeda and its Pakistani and Afghan brethren in the tribal area of North Waziristan, according to a mid-ranking militant and supporters of the government there.

The strikes have cast a pall of fear over an area that was once a free zone for Al Qaeda and the Taliban, forcing militants to abandon satellite phones and large gatherings in favor of communicating by courier and moving stealthily in small groups, they said.

The drones, operated by the C.I.A., fly overhead sometimes four at a time, emitting a beelike hum virtually 24 hours a day, observing and tracking targets, then unleashing missiles on their quarry, they said.

The strikes have sharpened tensions between the local tribesmen and the militants, who have dumped bodies with signs accusing the victims of being American spies in Miram Shah, the main town in North Waziristan, they said.

The impact of the drone strikes on the militants’ operations — on freedom of movement, ability to communicate and the ease of importing new recruits to replace those who have been killed — has been difficult to divine because North Waziristan, at the nether reaches of the tribal area, is virtually sealed from the outside world.

None of those interviewed would allow their names to be used for fear for their safety, and all were interviewed separately in a city outside the tribal areas. The supporters of the government worked in positions where they had access to information about the effects of the drone campaign.

Along with that of the militant, the accounts provided a rare window on how the drones have transformed life for all in the region.

By all reports, the bombardment of North Waziristan, and to a lesser extent South Waziristan, has become fast and furious since a combined Taliban and Qaeda suicide attack on a C.I.A. base in Khost, in southern Afghanistan, in late December.

On the legal side, responses trickle in to Harold Koh’s statement about drone warfare in his American Society of International Law address.  As I’ve indicated, as someone who had been highly critical of the long wait for the US government to offer a defense of its lawfulness, I’m very pleased with the statement.  For precisely the reasons I’m pleased, of course, numbers of others are not so pleased, as Ari Shapiro, who was at the speech, noted in his story for NPR.  For a good, even-handed discussion of the Legal Adviser’s statement, see this analysis by Anthony Dworkin of Crimes of War, including the several links provided at the end.

At first sight, Koh’s justification appears to be based on the idea, familiar from the Bush administration, that the United States is engaged in a worldwide armed conflict with al-Qaeda and the Taliban and can use lethal force against anyone fighting on the other side. However a closer reading of Koh’s remarks shows that his position is not so clear-cut. Although Koh clearly refers to an ongoing armed conflict, he also offers the broader notion of self-defence as an alternative justification. This is clear when he answers the possible objection that drone strikes away from a battlefield constitute unlawful extrajudicial killing. Not so, Koh replies—a state “that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force.”

The suggestion here is that a state that is the subject of sustained threat from an armed group may use lethal force when necessary to defend the lives of its citizens, even outside the context of a recognisable armed conflict. And furthermore that this right of self-defence extends not just to targeting those individuals engaged in an imminent attack against the United States, but those members of the armed group who are integral to the group’s broader campaign of violence against US citizens.

What is striking in Koh’s speech is that the existence of an armed conflict and the broader right of self-defence are both offered as possible justifications without any attempt to delineate the boundary between the two: it is not clear how far Koh is claiming that the purported armed conflict against al-Qaeda and the Taliban extends. Does it cover military actions in Pakistan? Somalia and Yemen? The ambiguity here is consistent with the continued lack of a definitive statement from the administration about the precise legal contours of its fight against al-Qaeda, in a way that is visible as regards detention policy as well.

Koh’s suggestion that drone strikes might be justifiable as self-defence even outside a recognisable armed conflict is in line with the position of earlier US administrations, as the legal scholar Ken Anderson recently argued in an article for the Weekly Standard. But what is missing in the administration’s justification for the drone attacks is any sense of what the limits are on the use of lethal force against individuals who do not pose an immediate threat. The restrictions in the laws of armed conflict, which concern only whether the target is engaged in hostilities against the United States and the degree of harm to other civilians, do not seem adequate here.

I should add that although I do take the view that non-international armed conflict is defined by the facts of where sustained, intense, hostilities are underway – which is one reason I think the applicable legal ground in some cases is self-defense – and in that sense “geographically” limited, it is important to recognize that many in law and policy in the United States, at least, do not accept that at all.  The Wall Street Journal was one of the few major newspapers that said much editorially or as news about the speech; its editorial is here, overall praising the Koh speech:

Count us among those applauding last week for the Obama Administration’s robust defense of the use of unmanned drones for targeted strikes against al Qaeda in Iraq, Afghanistan and elsewhere. In a speech to the American Society of International Law, State Department Legal Advisor Harold Koh presented a broad assertion of the U.S. right to pursue and kill terrorists overseas, on or off an active battlefield.  In laying out the legal argument for the strikes, the former Yale Law School dean was, to put it mildly, meticulous, even fastidious.

Pushback was found, among other places, in some commentary at Huffington Post, for example, by human rights lawyer Chris Rogers:

Koh failed to address serious concerns over the U.S.’s use of drones to kill al-Qaeda and Taliban militants, and in particular the debate over strikes in Pakistan and other areas outside Afghanistan. Hopefully Koh’s remarks indicate that a fuller account of the U.S.’s legal position is forthcoming. But for now, the program remains shrouded in secrecy and Koh’s mere assertions of the program’s legality fail to provide the kind of accountability that is urgently needed.

My own assessment of the fall-out is that there is a general sense of satisfaction within the intelligence community that Dean Koh specifically distinguished armed conflict from self defense, although many in it would have preferred to see a direct reference to the CIA and the lawfulness of its role.  Those who were already critical are no more satisfied – partly, I don’t think it is snarky to say, because the issue is not really about knowing more about it, but fundamental objection to it.  Knowing more about it isn’t really the issue for the ACLU or the human rights groups or various UN officials.  Ben Wittes is right in saying that for the international soft-law community, it remains the Next Big Thing.

Over at Opinio Juris, Julian Ku points to today’s front page NYT story by Charlie Savage detailing secret memos and meetings among the leading lawyers seeking to address national security and terrorism issues, including detentions, drone strikes, the question of armed conflict, and other things.  In my posts, I have been focused on the question of drones and targeted killing, but of course that issue and its legal authorities are intertwined with other questions, such as detention.  It’s a long piece by Savage, introduced by saying:

The discussions, which shaped classified court briefs filed this month, have centered on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners. The outcome of the yearlong debate could reverberate through national security policies, ranging from the number of people the United States ultimately detains to decisions about who may be lawfully selected for killing using drones.

(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’ »

The excitement over the AQ7 ad put out by Liz Cheney’s organization has died down, but Ben Wittes has this very interesting piece up in The New Republic extending discussion of the letter that he drafted, signed by a group of conservative and centrist folks criticizing it.  I was one of the signers, and wound up sticking up my own very lengthy comment about it here at Volokh.

I suppose the key point for Ben and me, in somewhat different ways, is that we have each received much praise from folks on the left for defending Obama lawyers such as Neal Katyal or Jen Daskal.  No one objects to praise, or at least I don’t, but much of it was a little misplaced.  The praise tended to be as though, in order to defend the Obama lawyers, we had somehow changed our minds about the Bush lawyers.  Whereas, for Ben and for me, each in somewhat different ways, the issue was the same.  We defended Katyal and Daskal because we had defended the Bush lawyers and thought the same principle applied.  I also followed up with an response to conservatives such as Andy McCarthy who attacked the Wittes letter.  What with health care reform, and lots of other things on the agenda, the discussion is moving on, but it has been an important one, and at least among conservatives, a clarifying one.

From the opening of Ben Wittes’s essay:

Continue reading ‘Benjamin Wittes Comments on His AQ7 Letter at The New Republic’ »

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.