Archive | Targeted Killing

Why Engaging in More Counterterrorism “Capture” Ops Makes Them Less Feasible Over Time

(Special note:  Lawfare, where I serve as His Serenity, Book Review Editor, is absolutely delighted VC’s own Orin Kerr has agreed to post there when the Spirit of National Security Law moves him.)

Over at Lawfare, I have a longish post about the declared US government policy of preferring capture operations over kill operations where “feasible.” This has been a constant refrain from senior US government officials for several years, including John Brennan (previously White House counterterrorism adviser and now CIA director) and President Obama in his May 23, 2013 speech at the National Defense University on counterterrorism (which Benjamin Wittes and I analyze closely in Chapter 3 of our e-book on the national security law speeches of the Obama administration, Speaking the Law, just now made available with open access at SSRN).  It is safe to say that these assertions have been widely seen among journalists and commentators as mere pieties, window dressing on a policy of kill over capture if only because the administration doesn’t have any place to hold new detainees.

So there was a flurry of commentary three weeks ago when US special operators, in conjunction with CIA, launched capture operations in Libya and Somalia.  Did this presage the beginning of a new era of special forces capture operations rather than drone strikes? Two days ago, on the other hand, the US launched a drone strike that killed someone it had been seeking for four years as the mastermind of a strike in Afghanistan against a CIA outpost that killed seven Americans, Hakimullah Mehsud, leader of the Pakistan Taliban.  What was “feasible” supposed to mean?  In practical terms, a kill operation differs from a capture operation in that the kill operation can be carried out by a drone, whereas a [...]

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The Bourne Implausibility: Movie Inspires Blog Post, Which Inspires Video, Which Inspires Blog Post

Three months ago, under the heading “The Bourne Implausibility,” I offered up the following (wry?) observation:

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal.

It has recently come to my attention that someone named “Badger Pundit” has posted a YouTube video inspired by this blog post. Since this is, to my knowledge, the first time that a blog post of mine has inspired a video, it seems only fitting to come full circle and link to the video, here. [...]

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Obama’s Speech on Drones and the War on Terror

In his speech on drones and the War on Terror today President Obama made many valid points. But he also continued to elide some key issues. On the plus side, Obama correctly emphasized that the use of drones against terrorists is not inherently illegal nor immoral, that drones are often more discriminating and less likely to inflict civilian casualties than other military tactics, and that US citizens can be legitimate targets when they become enemy combatants.

Unfortunately, Obama also continued to dance around the more problematic aspects of his drone policy: who decides whether a particular individual being considered as a potential target is really a member of Al Qaeda and how much evidence is needed to back up such a determination? I emphasized these issues in my recent Senate Judiciary Subcommittee testimony on drones and here. Here are the most relevant parts of Obama’s speech on these questions:

In the Afghan war theater, we must — and will — continue to support our troops until the transition is complete at the end of 2014. And that means we will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces. But by the end of 2014, we will no longer have the same need for force protection, and the progress we’ve made against core al Qaeda will reduce the need for unmanned strikes.

Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect

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The Case for Drones

Just in time for President Obama’s big speech Thursday at the National Defense University on counterterrorism policy and strategy, Commentary Magazine has made available early my June cover article, “The Case for Drones.”  (Available free and not behind the subscriber wall.)  It’s a long essay arguing that drones are both effective and ethical, and addressing a number of the objections to each of those propositions.

The article has a particular audience in mind. It is aimed at conservatives and Republican members of Congress especially, to remind them that their sometimes knee-jerk attacks on the “imperial” Obama presidency risks one major piece of national security that the Obama administration has got well and truly right.  There’s no lack of imperial presidency, abuse of power material for conservatives to work with- pick your issue this week – but this particular issue is one where, if conservatives look down the road, they ought to see that any president, Republican or Democrat, will need to have available the national security tools of drone warfare and national security.  It would be a remarkably foolish thing if, by inattention or inappropriate and merely reflexive attacks on the Obama administration’s drone policy, Republicans in Congress wound up permitting drone warfare to be made politically, morally, or legally illegitimate – just as a future Republican president enters office and discovers that, yes, there are terrorist threats best addressed by drones.  Congressional Republicans, in the midst of the many abuse of power hearings, ought nonetheless to be scheduling hearings to invite current and former administration officials to reiterate their legal views on drone warfare, with the express purpose of standing with the President on this tool of national security and its permanent, legal, and legitimate place.

Commentary is a conservative magazine, obviously, and I’m writing there as a [...]

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Bill to Be Introduced to Increase Armed Services Committees’ Oversight Over Special Operations

Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military.  University of Texas law professor Robert Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary.  Whether this is an important step or not depends on one’s starting point, of course; I agree with Chesney that it is a big deal and a welcome step to regularizing . (Though if one’s view is that all these operations are unlawful, or that  they require judicial oversight, or something else, whether from the Left of the Democratic Party or what we might call the Pauline wing of the Republican Party, then you won’t be much moved.)

Seen within the framework of US law and oversight of overseas use of force operations, this is an important step.  A couple of observations.  First, this (soon-to-be) proposed legislation is with respect to operations conducted by the US military under US Code Title 10; it does not cover CIA activities, which are already subject to oversight and reporting under US Code Title 50.  Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; essentially it increases the role of the Armed Services committees in oversight of US military operations in what it defines as “Sensitive Military Operations” – which in practice means clandestine Joint Special Operations Command (JSOC) activities.  It does not alter the existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations.  Why this focus on military operations conducted by JSOC?

Counterintuitive as many might find it, [...]

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My Written Testimony on Drones and Targeted Killing Before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights

My written testimony on the use of drones for targeted killing in the War on Terror submitted for yesterday’s hearing the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here. You can view the video of the oral testimony (both mine and the other witnesses) here. I will post links to the other witnesses’ written testimony when and if they become available.

UPDATE: The written testimony of all the witnesses is now available here (see list of their names off to the right).

UPDATE #2: A written statement submitted for the hearing by Senator Rand Paul is available here. [...]

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Oral Testimony on Drones and Targeted Killing Before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights

A video of my and other witnesses’ oral testimony on the use of drones for targeted killing in the War Terror, before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here (just click on “webcast”). It was interesting for me to see that there was a broad consensus among the academic and ex-military witnesses on two key points: that the use of drones for targeted killing of terrorists is not inherently illegal or immoral, and that we need stronger safeguards to ensure that we are limiting drone strikes to legitimate military targets. It seems to me that many of the senators who asked questions – both Democrats and Republicans – were also sympathetic on these points. Whether this will lead to appropriate reforms remains to be seen.

I will try to post my written testimony by tomorrow.

UPDATE: You can also watch the hearing at the C-SPAN site here, though there are a few technical problems in that video that I noticed.

UPDATE #2: I do want to clarify one unfortunately ambiguous aspect of an answer I gave to a question by Sen. Michael Lee around 2:07:00 of the video at the Subcommittee website. I mentioned there that the Israeli government government has a judicial review mechanism for considering the legality of targeted killing decisions. I should have made clear that the Israeli system, as outlined in the Israeli High Court of Justice’s 2006 decision on the legality of targeted killing, establishes after-the-fact judicial review rather than judicial review in advance, of the kind contemplated in proposals to create a FISA-like court to review targeting decisions aimed at US citizens in advance. Both Sen. Lee’s question and the part of my answer that mentions Israel were ambiguous on the issue of [...]

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Upcoming George Mason University Event on Drones and the War on Terror

This Wednesday, April 10, at 12 PM, I will be taking part in an event on the legal and policy issues surrounding the use of drones in the War on Terror, at George Mason University School of Law. I will be on a panel with my GMU colleagues Jeremy Rabkin and Nathan Sales. The event is sponsored by the GMU Muslim Students Association and by Students for Liberty. It will be held in Room 120. [...]

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Trevor Paglen Drone Photographs

If you’re interested in drones, you might also enjoy Trevor Paglen’s photographs of them. Paglen is a fascinating artist who has a particular interest in photographing secret things — drones, military installations, spy satellites. Here is Paglen’s webpage, and here is a recent New Yorker profile of him. If the Conspiracy had an official artist, I would nominate Paglen. [...]

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CIA Loses Drone Strike FOIA Appeal

The American Civil Liberties Union (ACLU) sued the Central Intelligence Agency (CIA) under the Freedom of Information Act (FOIA) seeking information about drone strikes.  The CIA filed a so-called “Glomar response,” refusing to confirm or deny the existence of material responsive to the ACLU’s request.  The ACLU then sued, and the district court granted summary judgment to the CIA.   Today, however, in ACLU v. CIA, the U.S. Court of Appeals for the D.C. circuit reversed, rejecting the CIA’s justification of its Glomar response. As the court explained:

The CIA has proffered no reason to believe that disclosing whether it has any documents at all about drone strikes will reveal whether the Agency itself — as opposed to some other U.S. entity such as the Defense Department — operates drones. There is no doubt, however, that such disclosure would reveal whether the Agency “at least has an intelligence interest in drone strikes.” . . . The question before us, then, is whether it is “logical or plausible,” . . . for the CIA to contend that it would reveal something not already officially acknowledged to say that the Agency “at least has an intelligence interest” in such strikes. Given the extent of the official statements on the subject, we conclude that the answer to that question is no. . . .

Given . . . official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency “at least has an intelligence interest” in such strikes. . . . The defendant is, after all, the Central Intelligence Agency. And it strains credulity to suggest that an agency charged with gathering intelligence affecting

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The Bourne Implausibility

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal. [...]

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The Drone Targeting Dilemma

The Obama administration memo on targeted killing has drawn an enormous amount of commentary, much of it hostile. To my mind, a lot of the criticism is overblown because it doesn’t give enough consideration to the fact that the memo’s rationale for targeted killing is strictly limited to American citizens who are “senior operational leader[s] of al-Qa’ida or an associated force.” On the other hand, there is a very troubling issue that the memo does not address: Who decides whether a potential target qualifies as a senior operational terrorist leader, and how much evidence does he need to have?

I. Al Qaeda Leaders Are Legitimate Targets.

Many critics, such as Gerard Magliocca and Conor Friedersdorf focus on the weaknesses of the memo’s three additional requirements for a targeted killing of a US citizen: that “(1) an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States, (2) capture is infeasible and the United States continues to monitor whether capture becomes feasible, and (3) the operation would be conducted in a manner consistent with applicable law of war principles.” Gerard, for example, argues that “[t]he White Paper says that a citizen is eligible for death-by-drone when ‘an informed, high-level, official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.’ In my opinion, this threshold is too low.” But the “imminent threat” test applies only to people located outside the United States who are “senior operational leaders of al-Qa’ida or an associated force,” not to just anyone who “an informed…official” believes to be a threat. In other words, the requirements that the target pose an “imminent threat” and cannot be captured are in addition to [...]

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The Drone White Paper, Imminence, and “Active Self-Defense”

Co-Conspirator Jonathan mentioned posts at Lawfare blog discussing the Drone White Paper that has been much in the news along with notice that the Awlaki OLC memo will be shared with Congress, and all  with the Brennan hearings for CIA director.  I have added a post at Lawfare that Volokh readers might find interesting; it points out that one of the much commented issues of the White Paper, the question of “imminence” as a condition of attacking in self-defense, actually has a long history in US law and policy.  At least since the early 1980s, the US has embraced a standard of “active self-defense,” as I note at Lawfare.  Here, for example, is a statement of it in 1989 by then-Department of State Legal Adviser Abraham Sofaer, in an interagency cleared speech, and which references statements by then-Secretary of State George Shultz:

Some States, such as Lebanon, are simply unable to exercise authority over terrorists, even if they were inclined to do so. The United States must be free to utilize force with sufficient flexibility to defend itself and its allies effectively against threats resulting from such breaches of international responsibility. As Secretary of State George P. Shultz predicted in 1984: “We can expect more terrorism directed at our strategic interests around the world in the years ahead. To combat it, we must be willing to use military force.” ….

In 1984 Secretary Shultz described this policy as an “active defense.” “From a practical standpoint,” he said, “a purely passive defense does not provide enough of a deterrent to terrorism and the states that sponsor it.” Later that year he described why an active defense was needed to deter:

“We must reach a consensus in this country that our responses should go beyond passive defense to consider means of active

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Drone Memos Can Remain Secret

The federal government does not need to disclose the legal opinions and other documents justifying the use of drone to target suspected terrorists overseas, a federal judge ruled this week. As Josh Gerstein reports, the ACLU and New York Times had sought their release under the Freedom of Information Act (FOIA). While Judge Colleen McMahon noted there were “legitimate reasons” to question the legality of the use of drone strikes for targeted killings overseas, and thought disclosure of the legal rationale relied upon by the administration would further public debate on the use of drones, she concluded the relevant documents were lawfully withheld under FOIA. While I, like many others, would like to see the relevant memos, Judge McMahon’s opinion is likely correct.

Rafaella Wakeman and Robert Chesney comment at the Lawfare blog. [...]

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National Security Law in the News

National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers is a new book published by the ABA’s Standing Committee on Law and National Security and Northwestern’s Medill School of Journalism. Despite the title, the book should be of interest to a general audience, as it offers a concise, broad plain-language overview of the many timely issues at the intersection of domestic and international law. I wrote the chapter on piracy. Congratulations to the editors, Paul Rosenzweig, Timothy J. McNulty, and Ellen Shearer.

Here is the overview:

Written by seasoned experts, each chapter contains a summary of legal and policy issues of significance and is accompanied by an annotated bibliography for further reading. The book is divided into four parts:
Part I provides an overview of the basic issues of constitutional and international law including discussion of the scope of the president’s authority, the meaning and effect of the First Amendment, and the role of international law in American courts.
Part II turns the focus to the military and explores questions about military organization and operations.
Part III looks at the world of domestic law enforcement and counterterrorism.
Part IV covers homeland security issues.
An added bonus: a list of experts to contact for additional background information is included in chapter.

Some early journo reactions:

Every reporter on the national security beat should keep this book within reach.”

— Jane Mayer, Staff Writer, The New Yorker Magazine

Finally, we now have a clear-eyed primer on national security law that can serve as an essential reference for journalists as they try to cut through the spin and get to the truth.”

— James Risen, author, State of War: The Secret History of the CIA and the Bush Administration

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