As Professor Philip Alston’s report as special rapporteur to the UN Human Rights Council on targeted killings, drones, CIA and military, and related issues is released today, I’ve been asked by numerous people to comment on it. I’ve read it once, but need to finish re-reading it before I’m ready to say anything that goes to the inside of the report. However, in preparation for the report’s release, I have posted to SSRN my testimony in the second round of House subcommittee hearings, “Drones II,” held on April 28, 2010 – an annotated version with various explanatory footnotes added. The best way to read this testimony is alongside the other written witness submissions, as taken together they offer a good compendium of the extant expert views in the US on how to see drones and the CIA – and the CIA and its use of force is, at the end of the day, the biggest issue here. Drone technology is best understood as a stalking horse for the question of the CIA’s use of force. I have a rambling blog post at Opinio Juris on the background to this; it is somewhat inside international law professor baseball, however – also, the links and tags point to a long, long series of back and forth posts at that international law blog site that fill in much background to the issue. SSRN abstract below the fold.
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 [...]
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
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. [...]
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
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
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
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 [...]
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
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
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 [...]
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 [...]
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: