The Volokh Conspiracy

I am privileged this week to be in attendance at a marvelous conference at NYU celebrating the 35th anniversary of Michael Walzer’s Just and Unjust Wars, with Professor Walzer himself in attendance, and a host of luminaries among moral philosophy, law, and other fields.  I don’t really have internet access at the conference, and the papers are all in preliminary form, but if you want to know much of my thinking about Just and Unjust Wars, I have many posts on the subject – many of them trying to tease out exactly what kind of theory I think Walzer offers, set against the range of ethics of war positions, over at my now-abandoned, archival blog.  (Search the Walzer posts.) I think I will do a series of Walzer related posts here, if I can get internet access, drawing on the conference and my earlier blog posts.  Kudos to Joseph Weiler, Gabby Blum, and Ian Scobbie for pulling this marvelous conference together.

I do have a paper at this conference – on drones, but not really on the law of targeted killing and drone warfare.  (Yale’s Paul Kahn is kind enough to serve as commentator on Wednesday.)  Tentatively titled, “Every death a targeted killing,” it aims to ask, speculatively, what effects a fully realized technological and legal and moral regime of targeted killing using drones would look like.  What would be the features of such a condition for conflict?  It does not attempt to address this for all conflicts – but suggests that, in the special case of counterterrorism, it enables the growth of an “intelligence-driven” form of conflict that individuates every killing, rather than targeting an undifferentiated mass of combatants.  If one takes that from a moral standpoint, targeted killing has the same proportionality rules as any other weapon, then it pays exactly the same heed to non-combatants; by contrast, it pays far more attention to the status and role of combatants.  The paper is in early draft form, in any case, so will get revised before I even post a working draft to SSRN.

Interest in targeted killing and drone warfare is not letting up in intensity – at least to judge by the pace of events on the topic. Right on top of my debate with Notre Dame’s Mary Ellen O’Connell on this at Washington University two weeks ago, Professor O’Connell and the Brookings Institution’s (and Hoover Institution’s) Benjamin Wittes undertook another one, this past Saturday at International Law Weekend in New York. It was considerably more testy than the Washington University debate. Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate. I’m sure it will generate a lot of interest and a lot of pushback in several directions. Ben (I’m going to use first names in this post for both of them and hope they don’t mind) has posted up video of the event at Lawfare.

Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen’s statements at what they say, Barack Obama is not therefore a “serial killer” for having directly ordered the CIA to carry out what Mary Ellen characterizes as “crimes” and Harold Koh at the least an aider and abetter. Ben has in mind, for example, statements in Mary Ellen’s widely noticed article, “Unlawful Killing with Combat Drones,” which among other things declares that “members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime.”

One might argue Ben’s choice of provocative words in the debate – serial killing – or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well). His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator. Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law. Crime is a charge of more than mere non-compliance. If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you.

And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It’s not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental “crimes” for which corporations routinely pay criminal fines in the domestic United States. Killing is not like that, presumably, at least not when it’s systematic, systemic, large-scale, and under direct orders.

The article by Mary Ellen specifically says who commits a crime – members of the CIA. Yet they are not acting as rogues in this, but rather under direct orders of the President. If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes. So what is it to be? I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both. I take it that was Ben’s larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing.

I have another concern beyond this, however. It goes to one of the responses in the debate from Mary Ellen when Ben insisted in pressing the point. It is that it would be politically unrealistic to consider going after Barack Obama or Harold Koh, so there is no point to raising the issue of criminality and, I took by implication, Ben was engaging in a strawman argument to do so. But why should it be seen that way? Ben did not assert the question of criminality in the first place, and then suddenly or unreasonably put it on the table, after all; it is not a proposition tossed up by Ben. “Crimes” as an issue were raised in the first place by Mary Ellen against CIA officers. Ben has pointed out that they are acting under perhaps the clearest, deliberately and (admirably, in my view) least deniable set of orders from the President of the United States in a long time on contentious national security matters. If there is a crime, there must somewhere be a criminal or else it is merely a series of unfortunate events; if there is a criminal, he or she did not act alone, because these agents acted under instructions from a principal.

So this is my concern: If it is politically unrealistic to consider going after Barack Obama and Harold Koh and Leon Panetta and Joe Biden, et al., and that is the reason (or a big part of it) for not pursuing criminal sanctions that follow upon criminality, well, one has to wonder when it will be politically realistic.   Continue reading ‘Targeted Killing and Drone Warfare Debate between Mary Ellen O’Connell and Benjamin Wittes’ »

Over the past year, I’ve been spending much time on the questions of drone warfare and the legal issues raised – many talks, panel discussions, debates, and so on.  In the course of those discussions, as well as discussions with many experts one-on-one, I’ve wanted both to clarify a couple of my views and acknowledge a change in how I would currently characterize some of what we might call the “legal geography” of armed conflict.

So, I have been strongly identified with, and have been robustly urging, that one possible ground justifying the use of drone warfare and targeted killing, as well as setting rules for its conduct, is the international law of self defense.  I maintain, and certainly continue to maintain, that there are circumstances in which the use of targeted killing can and as a proper legal description should be understood to be the use of force as a lawful act of self defense even though it takes place outside of an armed conflict, and even though that use itself does not create an armed conflict.  It seems to me, before as now, crucial to be clear of the existence of this category of the use of force as a lawful possibility for the United States, particularly looking down the road to conditions and situations that do not implicate the current struggle with Al Qaeda, has nothing to do with 9/11, is not covered by the AUMF – a new terrorist group with different terrorist aims, for example, emerging in Latin America or somewhere in Asia twenty-five years from now, and having no connection to any of today’s issues.

I have suggested that this is an appropriate way of characterizing the legal status of attacks carried out by the US in Yemen or Somalia, or elsewhere that terrorists might go in seeking safe haven, or by new groups emerging that increasingly are not directly linked to AQ even if they take inspiration and aims from it.  I have queried at what point jihadist groups threatening the US become only “notionally Al Qaeda” and part of our existing legal framework of a non-international armed conflict only in theory, increasingly remote from the reality.  Territory or legal geography of conflict matters in that, not because the armed conflict is inherently bound to a territory or geography, but instead because the group at issue is only tenuously connected to the group initially defined as part of the armed conflict – partly under domestic law considerations and partly under international law considerations.  The non-international armed conflict goes where the participants go; and likewise if new groups engage in co-belligerent action, then they become part of the armed conflict.  But it has seemed to me in the past several years that some of these groups are in other places and not obviously connected, except by a forced abstraction, to the groups under the AUMF.

I still think that is a perfectly good way to see the use of force.  The new groups present a threat; they present a threat in a place where the armed conflict is not actually underway with respect to them; the US targets them as self-defense in the absence of an armed conflict.  Alternatively, however, if you think either that the people you are targeting are part of the armed conflict to start with because they are linked sufficiently to AQ and the authors of 9/11, or even more directly because they are AQ or affiliates fleeing Pakistan or Afghanistan in search of new safe havens, then the case for viewing this as simply the continuation of the existing non-international armed conflict is also highly plausible.

I view these rationales as permissive, rather than a forced choice between them, and think that each is a perfectly plausible and justifiable way of looking at current actions in Yemen or Somalia.  With regards to Pakistan, insofar as those being targeted are as part of the counterterrorism campaign, that seems to me unremarkably part of the on-going armed conflict, albeit one that has broadened out to include Pakistan Taliban and various terrorist groups in Pakistan that have allied themselves with AQ.  The point, however, is that the question of whether the proper framework for legal analysis is armed conflict or self-defense begins not from geography but instead from the identity of whom you fight; if it is a genuinely unrelated group and, even more plainly as a hypothetical, a genuinely unrelated issue – a new form of transnational Maoism in the Andes, say – then the question of legal geography comes into play to ask whether hostilities of sufficient intensity, etc., suffice to evidence a non-international armed conflict.

This is a change in emphasis for me, and in part a shift in view; in the past I have emphasized far more the geography as to where hostilities are underway, but I am persuaded that the correct analytic frame is to ask “who” and then whether, “where” the fighting takes place, the threshold of sufficient hostilities has been met.  But this is in the context of understanding that in places such as Yemen, it seems to me the facts can be plausibly understood to fit either view.  Indeed, an important shift in my view concerning Yemen in particular is that as we understand better the relationships between Al Qaeda in the Arabian Peninsula and other groups in Yemen and AQ proper, the facts increasingly suggest that both in the past and even more strongly today, the best – and not merely a decently plausible – characterization is to understand them as part of the non-international armed conflict.  It seems to me that there are good legal grounds to understand Somalia and Yemen as attacks as individual acts of self-defense, but as I read the Woodward book and what John Brennan in particular says about the movement of AQ operatives into those new safe havens, and talk with well-informed reporters, those factual descriptions are persuading me that the better of the two views is to see attacks there as part of the on-going non-international armed conflict.  That would include the targeting al Al Aulaqi.

I also understand that the Obama administration has reasons grounded in domestic law for preferring to see the best international legal frame as non-international armed conflict in Yemen or Somalia.  This arises from its view that for domestic law purposes, the terms of the conflict are set by the AUMF, and not the discretionary scope of the executive.  I think this is perfectly plausible as an international law rationale – either seems to me available to it – and in any case, my reading of the facts on the ground in those places suggest that the administration is not simply making a “notional” argument by any means for how it sees attacks in Yemen or Somalia.  The Obama administration is on sound grounds in saying that the non-international armed conflict goes where those who participate go, and extends to groups that co-participate with them.  But that is a shift in my read of the facts from two years ago, and it is also a shift in emphasis as to taking geography into account.

As one government lawyer put it to me, the administration’s view is that, yes, it does have independent grounds for self-defense, exactly as Harold Koh said, and in an appropriate circumstance will invoke it nakedly, without recourse to an armed conflict.  But it also holds the view that once parties initiated a non-international armed conflict, and met the thresholds of intensity and all that, the same non-international armed conflict goes where they go, irrespective of geography.  As he immediately added, with notable weariness, this does not mean Predators over Paris, whether France or Texas; Yemen is not France.  Territorial integrity is an important, vitally important principle of international law – but it can be overcome where a state either cannot or will not control its territory – which is to say, assert the lawful sovereignty over territory for which it has both a privilege but an obligation.  No safe havens has also been a bedrock qualification on territorial integrity of states, as a matter of self defense and consistent state practice.

I am (still) completing a new essay on the operational roles of drones, a roster of strategic uses, one that leaves aside the legal issues in favor of trying to get an analytic handle on the increasingly variegated uses of drones and targeted killing.  It seems to me important for legal analysis because the variations are sufficiently great at this stage that different uses suggest different legal frameworks – some are involved in armed conflict, for example, and some might not be.  But as the argument over the use of drones in Afghanistan, Pakistan, Yemen, and beyond intensifies, I thought it would be worth taking a moment both to clarify and advance my own baseline legal position.  Thus:

Although asserting the framework of self defense, and elaborating its constraints based in necessity, discrimination, and proportionality is crucial, because not all uses of force by the United States will always and forever be instances of armed conflict, it does seem to me plausible and – given the current understanding of facts on the ground in Yemen and Somalia – the best understanding of who is being targeted to regard those uses of force as part of the on-going non-international armed conflict.

(Update:  Sorry about leaving off a title!  perils of posting from an Ipod!)

Today at noon, the Whitney R. Harris World Law Institute at Washington University Law School is holding a debate on targeted killing using drone aircraft.  It features Notre Dame’s Mary Ellen O’Connell and yours truly, and moderated by Minnesota Public Radio’s Matt Sepic.  Mary Ellen and I each hold strong views on this topic, of course, and I am greatly looking forward to the discussion.   The event will be webcast, live, I believe, and then available archived at the website if anyone is interested.  My thanks to the folks at the Harris Institute, and Leila Sadat particularly, who invited us, and congratulations to the Institute on its 10th anniversary.  The Harris Institute could not have picked a more timely discussion for its anniversary debate, as a quick glance at the newspapers reveals.  The link to the Harris Institute event notice is here.

I’ve just finished the new Woodward book, Obama’s Wars, and it is intensely interesting on the topic of drones and targeted killing.  If anyone thinks that the President, the Vice-President, and the senior national security team are not convinced that it is effective and the most discriminating form of use of force available, they should read this book carefully.  Ramping it up is fundamental to the Obama administration’s war strategy, as I‘ve repeatedly said for the last couple of years, in part because it is embedded in counterinsurgency to take out the safe havens, and because it is the the thin tip of the spear in counterterrorism.

That, according to the first rate reporting from Adam Entous, Julian Barnes, Siobhan Gorman, and others at the Wall Street Journal’s first rate national security reporting team, is what is driving the ramping up now: look back at Woodward’s book on the strategy discussions from a year ago, and what the Journal reporters are noting on the front pages, and both sides of the ramp-up become clear.  Counterinsurgency in Afghanistan requires taking out the safe havens; counterterrorism against the terrorist groups in Pakistan is a function of drones.  More drone strikes either way, quite apart from their strengths in costs, precision, discrimination, etc.

One of the important takeaways from the Woodward book, however, is that the counterterrorism strategy depends far more than I had realized upon the CIA’s network of human intelligence on the ground, and not merely on Pakistan intelligence sources.  The drone targets are a function of every other conceivable intelligence resource from humans on the ground to signal intelligence.  Another is the repeated theme that Al Qaeda is much more involved with the “franchise” and “affiliated” terrorist groups seeking to expand ops beyond Mumbai and south Asia into Europe than I had believed – I had come round to seeing them as inspired by but not really coordinated through or with, but the Woodward book puts Al Qaeda as very much in the game.

Seen from the strategy decisions made a year ago, the moment has arrived in which the administration is brushing aside objections to leaning on Pakistan – blowback, nuclear arsenal, etc. – and deciding it is put up or shut up time.  This all has important implications for the overt, non-covert war – it is AfPak as a strategic matter, and quite possibly – for important strategic players – much, much more Pakistan than Afghanistan.  But the conflict is an AfPak one as far as important US strategic considerations run, and that means overt, direct Nato attacks across the border on safe havens, drone attacks, and no pretense that it is a deniable CIA operation.  We haven’t reached quite that point yet, but we might get there sooner rather than later.  The alternative is a ramping down of Afghanistan counterinsurgency, and a ramp up of CIA deniable operations in Pakistan, as counterterrorism.  This is the Biden preferred option, in the context of the various strategic reviews conducted by the administration, on the view that defeating the Afghan Taliban in any meaningful way is not possible, and so Al Qaeda and affiliated groups sheltered in Pakistan are the issue.  Which is to say, Pakistan is the real source of the poison.

That strategic debate can go many ways, but the one lesson out of it is that drones and targeted killing will get only more important, not less.

Adam Entous, Julan E. Barnes, and Siobhan Gorman have an outstanding piece of national security reporting on the front page of the weekend Wall Street Journal, “CIA Escalates Campaign in Pakistan: Pentagon Diverts Drones to Afghanistan to Bolster Campaign Next Door.” This is a fine piece of journalism that integrates reporting from AfPak and Washington to present findings that are new to the public, and more than merely a deliberate leak to a leading reporter from a government official or a magazine story rather than hard news.  My congrats to what is emerging as a leading national security affairs reporting team at the news pages of the Journal.  (Here is Greg Miller’s account in the Washington Post, Sunday, front page.)

September 2010 saw another sharp uptick in the number of drone attack missions in Pakistan.  The question behind the raw numbers is what strategic purpose they aim at.  One strategic mission of drone missions in Pakistan is counterterrorism aimed at Al Qaeda leadership.  This uptick in September 2010 points to a quite distinct function – rather than counterterrorism as its own mission, the purpose is, as article says in a telling quote, “force protection” for the US counterinsurgency troops in Afghanistan.  The articles details an increasing impatience of the US military and political leadership with Pakistan’s government, and an increased willingness both to strike overtly using NATO military assets quite openly across the border, as happened in the last week, as well as to use CIA Predator attacks in the border regions.

Moreover, the “force protection” use of drones described in these articles is distinct from still another strategic use of drones, one recounted in earlier articles in the last two weeks, talking about their use to disrupt the planning of attacks against European targets by groups such as the Haqqanis, regional groups thought to be seeking to use people with European or American passports to strike from Pakistan against Western targets; Mumbai shifted further west, so to speak.  As Woodward quotes someone in his new book, “Mumbai changed everything.”  It is because of these overlapping but also separate and shifting roles for drones that it seems to me worthwhile to analytically distinguish them, as I do below.

Thus, the CIA attacks are now on safe havens for Taliban who are part of the fight in Afghanistan but taking refuge in Pakistan.  Rather than simply a raiding strategy against terrorist leadership in Pakistan as an exercise in counterterrorism, the drones are now used a raiding strategy against the safe havens as part of the Afghanistan counterinsurgency surge.  Hence the desire of the Pentagon to divert drone aircraft – which are in demand in Afghanistan for a variety of missions – from Afghanistan to attacks in Pakistan on bases that are seen as links for attacks on US forces.

This is an important shift, or addition, to the role of drones in Pakistan.  (Of course this has always been part of the use of drones; I’ve hardened the analytic categories to make them clearer, but really it is a question not of something new, but of scaling it up.)  The article makes note of something else, too – that drone aircraft are not being produced fast enough to meet demand for them in AfPak.  The article has excellent graphics, including a chart on numbers of attacks on a month by month basis, and maps.

As it happens, this article is timely for me, as I am completing this weekend the draft of an essay for the Hoover Institution on a roster of strategic uses of drones.  In bullet point form, here is an analytic breakdown of categories, as I see them, of drone use.  (I’m not providing more than the bullet title, even though the result is overly-cryptic; the full essay will be available once finished and edited at Hoover’s website or SSRN.  Also, if anyone is interested in my earlier published writing on drone warfare and the law, at SSRN’s free downloads, see this book chapter, this lengthy piece in the Weekly Standard, and two pieces of Congressional testimony, here and here.)

• Surveillance (sometimes policy and legal people forget this in all the controversy over weaponized drones and targeted killing).
• Drones used by the military or CIA in Afghanistan as part of combat operations and counterinsurgency.
• CIA drones in Pakistan used in counterterrorism against high value terrorist leadership (ie, against senior leadership such as Mullah Omar or Bin Laden or others in AQ).
• CIA drones in Pakistan used in counterterrorism against high and lower level operatives, including the current strikes against locations and camps of terrorist groups apparently planning new strikes in Europe or the US (as some of the CIA drone strikes undertaken now are apparently intended to do, such as those against the Haqqanis).
• CIA drones used in Pakistan in support of Afghanistan counterinsurgency operations against safe havens for Afghanistan Taliban.
• CIA (or even military) drones used in Pakistan in support of Pakistan government counterinsurgency operations against the Pakistan Taliban, separate from the fight in Afghanistan.
• CIA drones used in counterterrorism against AUMF targets (ie Al Qaeda or associated forces, in the context of participants in the current non-international armed conflict (NIAC), as legally defined), whether in Yemen, Somalia, or conceivably elsewhere.
• CIA drones used either as part of the AUMF-NIAC or else as (legally independent) self-defense operations, against US citizens who have taken up terrorist participation and made themselves subject to targeting (operationally not really different, but legally potentially raising different law and policy questions because of the US citizen status).
• CIA drones used somewhere down the road against terrorists unrelated to anything going today, whether in an ongoing armed conflict or as an operation in self-defense.

The list proceeds more or less according to an expanding political geography starting with Afghanistan; it deliberately leaves aside Iraq for these purposes.  The main internal analytic axes are political geography; who uses the weapon and on whose behalf; and who is targeted by the weapon.

The long-term question of drones is whether they are going to remain a remarkably useful weapon in support of a large variety of missions in different ways, or whether instead the US decides to try and leverage them into something much more strategically radical – the new strategic air power.  In other words, the latest iteration of a very old dream, the ability to win wars from the air.  But this time with a twist.

Strategic air power in the past both promised to win because it could deliver apparently huge amounts of kinetic energy, but then tended to lose (or at least not be decisive)  because the huge amounts could not be targeted in order to achieve the required strategic aims.  (For a discussion of recent, Kosovo war-era debates over the ability to win wars from the air, look at this excellent article from Byman and Waxman.  Moreover, Israel went down the air power road in Lebanon, hoping to avoid serious ground engagement, and quickly ran into major problems.)

Drone attacks and targeted killing, in the full realized sense with a range of vehicles from very large to tiny, with weapons ranging from large to small, and with improved sensors arrays and processing integration, hold out the hope of being able finally to deliver the blows precisely where one wants.  We think of the virtue of targeted killing as being discrimination for its own sake, limiting the damage of war.  In pursuit of strategic air power victory, however, we might do better to think of discrimination in targeting for the sake of (finally) being able to put power precisely where we want it.

It might work out that way; it might not.  Drones have not yet been met in the field with counters – surface to air missiles, for example, of the kind that dealt a crippling blow to Soviet air superiority in Afghanistan.  Or technological counters to the remote-control communications systems that allow drones to be directed from near or far away. What concerns me from a strategic standpoint is that the US might decide that drones are cheap, reduce risks to but also need for manpower, and that it finally has the ability to achieve its aims (as Vice President Biden has implied in his early-on stance in favor of drone counterterrorism rather than counterinsurgency war in AfPak), not through the burden and cost of boots on the ground, but over the horizon using this new iteration of the dream of strategic air power.

It seems unlikely to me that this will work.  I understand the attraction.  And I also understand that it does represent an advance on an earlier version of strategic air power – the post WWII idea that strategic nuclear air delivered weapons meant we no longer needed a large standing army, because of the nuclear deterrent in an over the horizon way.  That version of strategic air power could not work to the end of reducing the need for a conventional army, because the threat of nuclear war was too monumental to be useful at the margins.  You could never actually pull the nuclear trigger over something important but not so important to go to nuclear war over.  So it turned out that you either ceded ground incrementally at the margin, or else you went back to having a conventional army that could respond at the margins.

Drones potentially make that less of a problem, precisely because they allow calibrated responses in a discriminating way.  But it seems doubtful to me that a technology will not rapidly develop technological responses, and that in any case, it is a huge advance, but not a truly decisive one; it seems to me likely to remain a useful tool if regarded that way, not a panacea for having a sizable military.  In any case, history is littered with instances of believing that at last we had found the successful path to strategic air power victory.

Update: Woodward’s book, which I’m reading now, discusses many issues relevant here.  Four stand out for this topic.

• First, he notes that the number of drone strikes under Bush was tiny, in large part on account of an enormous fear of the consequences of civilian casualties, even in numbers that the administration believed were entirely justifiable – fears, in other words, of accusations of atrocities, war crimes, etc., from the fear of a de-legitimizing activist campaign.  The Obama administration, believing correctly that it was immune to such campaigns, did not have to worry about such repercussions.
• Second, the earliest drone strikes in Pakistan under Bush had only limited effectiveness, because the US, out of concerns for Pakistani sovereignty, advised the government of impending strikes; elements of Pakistan’s intelligence service warned Al Qaeda, and they dispersed from the target zone prior to the strike.
• Third, he notes that Michael Hayden, while embracing the use of drones as counterterrorism against high value targets, did not believe that it could “win” the struggle against Al Qaeda or the jihadist extremists, because the pinpricks were not enough to root out the movement even if leaders were killed.  Hayden thought the drones essentially tactical rather than strategic.
• Fourth, he says that the reason the drone were, and are, effective is because of a strong effort over five years to create a ground level network of intelligence of critical value – developed it seems out of the CIA from human intelligence.  That, integrated with massive advances in signal and communication surveillance, has enabled drones equipped with still not much more than tactical video surveillance in the air to be directed to the crucial targets.  It is not the surveillance gathered by a weaponized drone that matters so much as the intelligence gathered in a combination of on the ground human intelligence and communications monitoring that allows an effective strike.

One of the biggest implications for drone strikes by the CIA in Pakistan and Afghanistan, as I read the Woodward book, then, is that the CIA (under Hayden and surely the same under Panetta) regards its human intelligence and a certain on the ground presence, as well as communications monitoring outside of the tactical use of the drones themselves, as crucial to their success.  The drones are effective – insofar as the ground is prepared by other kinds of intelligence activities and technologies.

Behold, the personal drone, controlled by Ipad, Itouch, Iphone, available on pre-order for later this year from Amazon.

The Parrot Helicopter Drone

Due to the press of a deadline for something else, I am not able to comment as fully as this all deserves, but I wanted to flag this morning’s editorial in the Washington Post, essentially defending and, in some ways, extending the Obama administration’s position on targeted killing, whether using drones or human teams, including American citizens under certain circumstances.

[DOS Legal Adviser Harold] Koh correctly asserted that the 2001 Authorization for the Use of Military Force, international law and the country’s inherent right to defend itself put it on solid legal footing for such attacks, including those outside traditional battlefields ... In his [March ASIL 2010] speech, Mr. Koh did not address whether U.S. citizens could be the targets of these strikes.

The American Civil Liberties Union took up Mr. [Anwar] Aulaqi’s cause last week, arguing that it would be unconstitutional for the government to carry out such a strike against an American, especially one located outside a recognized war zone.

U.S. citizens who take up arms against the country are enemy combatants and are indistinguishable on the battlefield from other belligerents. The political, legal and moral calculus of addressing the threat posed by an American enemy combatant such as Mr. Aulaqi changes when he is located outside a recognized war zone. The discussion should be — and we trust would be — dramatically different if he were residing in an allied country willing to use lawful means to capture and turn him over.

But when a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens.

I agree with the fundamentals of the editorial; so does Ben Wittes, commenting at the new – and I suspect soon to be indispensable – national security blog, Lawfare.  Not everyone does, to be sure; over at Opinio Juris, my co-blogger Kevin Jon Heller argues that, at least outside of a recognized war zone, an American is entitled to adversarial judicial process, and adds:

We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process. So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?

There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime. If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding.

It’s an interesting scenario – CCR Michael Ratner representing a gone-missing-in-Yemen Aulaqi, getting a chance to review the government’s secret evidence, being able to review the secret methods of secret evidence collection in a secret proceeding, not only the contents of which presumably need to be kept secret but the very fact of the proceeding as well?   I wonder what the internal reaction to this scenario would be inside Koh’s shop at the State Department, let alone at DOJ, DOD, NSC, DNI, or CIA.  But now a couple of final comments which go to issues that haven’t been so much discussed.

First, if one reads the ACLU-CCR filing as well as the Washington Post opinion piece by the two advocacy groups which has also been discussed at Lawfare and Opinio Juris, it is hard not to notice that the underlying argument is only secondarily about an American citizen being targeted – and primarily about the idea that an armed conflict in a legal sense is necessarily geographically bounded, limited to particular battlefields and acknowledged “theatres of conflict.”

On the citizenship point, one understands the problem – the progressive left of which these groups are a part tend to put no weight on citizenship much of the time, treating it as a morally accidental and therefore morally suspect category – except when it comes time when it can be invoked to offer protection.  (One might regard this as a theory of citizenship premised on the view that it promises only goodies, and is merely a mechanism for internalizing benefits and externalizing costs.  As with most situations of continuous moral hazard, such a conception can’t really last.)  At the end of the day, the advocacy groups see the citizenship issue merely as a strategic argument for protecting a group (Americans) that has no actual special moral claim.  And so, whatever the argument over targeted killing are at any given moment to advance the cause of prohibiting them, the advocacy work won’t be done until it also addresses the presumptive human rights of non-Americans equally.  Citizenship is merely strategic.

Second, going to the geographic definition of war as a legal concept.  This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law.  And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime).  I cannot say that these claims – although heroically urged by the advocacy groups and their academic allies – have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it.  Certainly the State Department, under Harold Koh, no less, does not even entertain it.  And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation.  (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)

Rather, the customary view of the US – and the traditional view of war-fighting states – has always been that the fight can lawfully go wherever the participants go.  It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself.  The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are.  The reason for this traditional rule is obvious – if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven.  Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.

The ACLU-CCR view acknowledges (at this point in its advocacy campaign, anyway) that a US citizen might be lawfully targeted – not to put too fine a point on it, and a note, per Orin’s earlier post, to judicial clerks – without the permission of Proconsul Kennedy, provided that he be on an “actual” battlefield as the ACLU legally defines it in its own way.  That being the ACLU’s view for the nonce, then the geographical distinction is crucial as a matter of law.  Within it, the US citizen can be treated as a combatant like any other; outside of it, then in the ACLU and CCR’s view, constitutional rights follow the citizen.

It is important to understand, then, that the ACLU and CCR’s advocacy position is not limited at all to US citizens – it is to impede targeted killing by requiring, among other things, the permission of a Federal judge at a minimum, including for non-US citizens.  Since it seems, as a matter of political advocacy at least today, a bit of a stretch even for the ACLU or CCR to try and argue that an American shooting at US soldiers in Afghanistan is owed a judicial hearing, the crucial premise is to separate out those “active” war zones as a matter of law from places where constitutional due process meted out by a federal judge obtains.

The citizenship issue is best understood, then, as a stalking horse for a larger advocacy strategy in which, in the case of US citizens, constitutional rights follow US citizens even beyond territorial borders – a questionable proposition, in my view, if that is supposed to mean “all” or even “all important” ones.  (There are many reasons why territory matters in the existence of constitutional rights – the actual exercise of actual police powers over the national territory, versus Yemen or Somalia, for one thing; it is partly, but not just a formal concept about sovereign territory.  The Post editorial dealt with that correctly, in my view.)  And in the case of non-citizens, outside of what the ACLU defines as the legal armed conflict zone, full human rights law applies on the ACLU-CCR, to render the targeted killing an extrajudicial execution; likewise, in my view, a questionable proposition.  But in the discussion of the current ACLU lawsuit, I think the fundamental premise, and the most dubious one as a matter of law – geographical limits on the legal state of armed conflict – has been somewhat passed over as people have argued instead about citizenship.

Third observation – why the assumption that in everything, including crucial issues of national security abroad, there is always a role for the Federal judiciary?  The Washington Post editorial emphasized, correctly, in my view that indeed a US citizen was deserving of greater scrutiny in deciding whether or not to target; I deliberately use “scrutiny” as a non-legal term rather than “due process.”  The Post was seemingly careful not to suggest that this scrutiny should be that of a judicial process or Federal judge.  Rather, the Post quite correctly, to my mind, emphasized that this consideration should be built into the intelligence oversight process – some kind of mechanism to ensure that the fact of citizenship has been acknowledged and a heightened evaluation made.

The WP says that the bi-partisan intelligence committees should be informed – a matter with which I could not agree more, on this as well as other matters involving Congressional oversight of the intelligence community.  But there is a special salience here.  Because in these targeted killings and other intelligence actions, officials tasked to carry out these missions need to have assurance that they will not be scapegoated afterwards.  They do not have it now.  A crucial political mechanism is to ensure that the intelligence committees have been fully and completely informed – so that there can be no later deniability as to what Congressional leaders were informed in secret.

I would write that as an amendment – perhaps; I could also be persuaded putting anything in writing is merely an invitation to judicial intervention – into USC 50.  This would be partly to make clear both that the process is vested in the political branches as a matter of national security, but that in the case of Americans abroad and possibility the subject of forcible actions by the actors in the “intelligence community,” the President shall, in the lawful exercise of his discretion, take into account that the person is American.  But it would also be to say explicitly that nothing in the exercise of that discretion confers any substantive rights on any individual and that the judiciary has no power to review such exercise of Presidential discretion.

As various people have pointed out, the current ACLU lawsuit is not likely to go anywhere.  From the advocacy point of view, that is not really the point.  It is instead to keep create as much legal uncertainty as possible by raising the possibility that at some point down the road, perhaps some Federal judge will decide to entertain these possibilities, and hold some CIA official liable for something done years before – does any, these days, think that we are in a period of settled institutional views on liability?  If anyone thinks that even a small amount of legal uncertainty for individual officers involved does not have consequences, they should think again.  Leveraged legal uncertainty affects behavior.

Moreover, the US government, under any administration, is perennially unable to see the larger advocacy campaign – this as well as other ones.  They are textbook examples, whether one agrees with the cause or not, of The Logic of Collective Action; they look to the ten year framework, and they understand something that seems to elude too many law and economics scholars, viz., the framing power of legitimacy.  Hence the current formulation of the ACLU lawsuit – execution without trial of an American citizen abroad by his government.  One might think that “execution without trial” tendentiously presumes the conclusion, but it has been faithfully picked up and repeated by numerous journalists and commenters as though it were the obvious starting point rather than a tendentious conclusion.

When I talk with government lawyers about this public advocacy issue, however, their response tends to be ... but Harold Koh already addressed this in his speech!  It’s been settled, already!  But if you are engaged in an advocacy campaign for the long run, Koh merely gave momentarily the wrong answer, and the task is to endlessly reframe until everyone has forgotten what he said and what’s left is, “execution without trial.”

Finally, the long march of advocacy groups through the institutions puts a greater importance on that least-impressive branch of government, the US Congress.  It needs to get involved – to take up its responsibilities as one of the political branches to set the most basic terms of national security.

But for a sharply contrary view to all of this – a view that, when contrasted with this or with Harold Koh’s views, shows just how much these basic conceptions of national security are today ships passing in the night – read Kevin’s (several) posts at OJ as well as Ben’s comments at Lawfare to which Kevin is partly offering a reply.

Adam Serwer has a post up flagging a new suit by the ACLU and the Center for Constitutional Rights (CCR) against the Treasury Department’s Office of Foreign Assets Control (OFAC) over funds expended over the question of whether the Obama administration can designate and then target Al-Awlaki as a terrorist hiding out presumably in Yemen.  Adam tried to contact me to discuss it, but despite this post, I am really, truly out of touch.  In and out of the mountains, about to drive across the desert, and an iffy internet connection.  However, without having read anything at all besides Adam’s post, this is an important lawsuit.  I, as I have remarked various times, see no problem with the US government targeting Al-Awlaki, US citizen or not.  I don’t have a problem with the refusal of OFAC to issue the required license for the expenditure of funds on someone the US government has designated as a terrorist under existing US law.  However, those are separate legal questions, and there are others besides, not least the recent Supreme Court decision approving, if my sun and altitude-addled recollection is correct – and it might not be – something pretty much like what OFAC just did.  But I leave it to everyone else to sort out; I just wanted to flag it to everyone’s attention, and kudos to Adam for being on top of it.

Although officially offline and on vacation, I thought I would share one conversation with one of the rangers here in the national park. She remarked that the ranger services – national parks, national forest, etc. – had been watching with great interest the growth of unmanned aerial vehicles (UAVs) in civilian use. So far this includes things like crop dusting and surveillance. Because the air bases that command some of the UAVs are located in Nevada, relatively nearby (in the Empty Quarter, that might mean 300 miles of desert driving, of course), there is a lot of awareness of UAVs and their potential – University of Nevada, Las Vegas has just begun a program to graduate UAV controllers, for example.

When people talk about surveillance UAVs, they are typically thinking about border patrol, but here, the park services are thinking about fire patrols – an immensely expensive task from aircraft now, because of the vast areas to be surveyed in real time – but worth it because the faster the fire is spotted, the better the chance of containing it before it spreads. LIkewise, search and rescue for lost and injured back country hikers. That one is somewhat ahead of existing technology, for what the park services would ideally like, because flying in the steep valleys and canyons is difficult and hazardous now, but UAV technology is not sufficiently up to speed to take over those tasks. But it will happen soon, as smaller UAVs that are more like large birds can be deployed in difficult, deep, or narrow spaces. Likewise, as the sensor technology gets better, cheaper, and more available, it will be easier to find a single lost hiker using not just things like infrared signatures, but sensor arrays that are ... well, if they exist, they are still only available to the military.

Point being that UAVs are going to spread rapidly and widely across a huge array of tasks and functions currently carried out by manned aircraft. It will happen because UAVs will be so much cheaper, efficient, and in many functional aspects superior to using people in airplanes. The impetus will rapidly turn from being military, as it still is now, to civilian. Everybody, everywhere in the world will shift that direction.

I raise this because there is a meme that still circulates with some velocity in the international law community, journalists, and others, that the US is risking setting off some kind of UAV arms race by its increasing roboticization of conflict – not just UAVs, but ground vehicles, and so on. I don’t think that’s right; the meme fundamentally misunderstands the technology and its application. Rather, UAVs are going to spread across a very wide range of aviation in any case, in which military uses will just be one of them. The same technology, cost, safety, efficiency, and so on, drivers that push for fire surveillance in the Sierra Nevada will be exactly the same ones that drive the military to use the technology. One can call it an arms race, I suppose, but only if one imagines that it is all about military use, otherwise it is a misleading way of thinking about the technology.

A better way to think about this is to go back to what make robots robots. In general, there are three conceptual pieces: A locomotion function or means of gross movement or action in the world; computing and central processing power to be able to analyze; and sensors to bring in streams of data which, being analyzed, result in some form of gross mechanical action. (In the case of US military UAVs, we can add an additional piece that brings them into an intersection loosely with ‘cyber’ – the communications net that allows them to be piloted over Afghanistan from the US.) Focusing on the UAV’s gross locomotion part, the flying part, and saying that it will lead to an arms race in which everyone will want one and arm it with a missile misses the point. There is no arms race about that – the technology for flying remotely has been around for decades; anyone who wants to build one can do so at a hobby shop. Putting a missile on it is child’s play, literally – presumably no one would be so politically incorrect as to propose building a Predator with a missile as the next high school robotics competition for high school teams, but apart from political sensitivities aside, one reason is that it’s just too darn easy. Flying is easy; making a machine that walks up stairs is hard.

Everyone will have UAVs because everyone will want them for so many, many things, mostly unrelated to military or police missions. Any government that wants to arm one with a missile will have no difficulty doing so. The real technology issues are not with flying, or with weaponization – or even with computing power. That’s all off the hobby kit shelf. No, the real technology issues arise with sensors. One robotics scientist in Silicon Valley told me last year that it was largely unrecognized, but the real advances in technology of the past decade had not been in computers as such, but in sensors and controllers, ranging from new ways and kinds of bringing data streams online to direct neurological, direct brain control of robotic limbs for amputees, and so on.

But now, note the issue. Some of this technology is classified for military R&D; other parts are not. The importance of robots outside of the UAV context are immense in large part because the Baby Boom generation does not have sufficient children to see us off to our reward; we are going to slide into dementia and be cared for and comforted by cuddly robotic dolls that we will think are human, to judge by where things are going in Japan. In the US, we are not so aware of this, yet, although it is striking that the Times and the WSJ have both moved on in their robotics coverage from targeted killing via UAVs to much more friendly news stories about Alzheimer’s patients in Japan being soothed by robot plush dolphins. Dolphins that will be smart enough to monitor medical conditions and call 911 if needed, to take obvious examples, or monitor whether a patient has taken the meds, or any number of things. What lies behind this is sensor technologies.

In an armed conflict context, however, it is questionable how many of the fighting forces in the world, state or non-state, will feel any great obligation to minimize collateral damage or attempt to more and more affirmatively id a target before striking. If you don’t feel that obligation – I would estimate that the countries involved will be the US and Israel, and the rest of NATO only insofar as it ever intends to do any more fighting, but in any case, they will simply acquire US technology. China will likely do so, because it would at least want every capability, and because it can most likely steal the technology and reverse engineer any missing parts. But either sensor technology will spread across civilian uses, such as elder care robots, so as to make the concept of an ‘arms race’ moot, or else the number of countries that will be “racing” to have such technologies will be almost entirely limited to countries that (a) fight and (b) care about the rules. That makes the list frankly pretty short. It is possible that India might join that list, along with Taiwan, South Korea, and a handful of others in Asia. But there will not be an “arms race” around sensors, because they are useful primarily for reasons related to more discriminating targeting, and the militaries in the world interested in that is not a long list.

Will there be an evolution of arms around UAVs, then? Yes, but not likely along those parameters. The likely arms race is along a quite different one. Predators are slow and noisy for targeted killing; it will not take long before some party – Iran – begins doing what the US did via the CIA in Afghanistan against the Soviets, and supplies rudimentary surface to air missiles to attack the drones. The arms race will get underway in the classic evolution of protecting air dominance. The Predator, for example, might launch not a missile, but instead a still smaller drone with a single-person weapon, specifically designed for up close use. That will be a function not of flying technology or weapons technology, however, but, once again, sensors. But an arms race over air superiority is not one that has the implications for the supposed dangerous spread of this new military technology – introducing dangerous new dynamics between India and Pakistan, for example – that numbers of commentators seem (still) to imagine.

I am returning to the solitude, which is to say, the off-lineness of the mountains.

CIA director Leon Panetta has named a new National Clandestine Service chief, reports Peter Finn in the Washington Post today.  The new chief, John Bennett, has been serving as station chief in Pakistan, overseeing in particular the expansion of the drone campaign carried out by the CIA there.  One may take that as further evidence that the Obama administration does not regard deep, senior participation in drone activities and targeted killing as something to be embarrassed about; quite the contrary.

Bennett, a former Marine and Harvard graduate, had retired in May after a nearly 30-year career at the CIA, but was coaxed back to take charge of the service, which runs human intelligence and covert operations. Among other posts, Bennett previously served as chief of Special Activities Division, the agency’s covert paramilitary unit ....  While station chief in Pakistan, one of the agency’s most sensitive positions, Bennett was deeply involved in the drone campaign that has killed hundreds of al-Qaeda and Taliban operatives, including at least 20 senior figures.

Julian Barnes has a good story in today’s Wall Street Journal on the expanding and deepening boots on the ground role of US special operations forces in the Pakistan border region.  It is well sourced and reported, and overall points to a deeper cooperation with the Pakistan military.  I wanted to flag a couple of things.

First, the special ops units are going on aid missions, and as the article notes, they sometimes do so in civilian dress:

The Special Operations teams join the aid missions only when commanders determine there is relatively little security risk, a senior U.S. military official said, in an effort to avoid direct engagement that would call attention to U.S. participation.  The U.S. troops are allowed to defend themselves and return fire if attacked. But the official emphasized the joint missions aren’t supposed to be combat operations, and the Americans often participate in civilian garb.

The rules for when uniforms are required or not, and when non-standard uniforms are permitted, are more complicated and context dependent than many realize.  The dean of the Department of Defense laws of war studies, a friend and adjunct professor at my law school, Hays Parks, has written several articles addressing the technicalities of uniforms, but the bottom line is that the rule is not that servicepeople always have to perform their duties in standard military uniforms.  Special forces personnel operating with Northern Alliance groups early in the Afghan conflict, for example, dressed like the Northern Alliance groups – there was no obligation to call attention to oneself through one’s uniform as specifically US military.

The on the ground effort signals a greater emphasis on counterinsurgency by the Pakistani army itself, as it has gradually come to see itself in a war inside Pakistan against its own Taliban enemies, and not simply as a staging area for the Afghan fighting.  As Adam Entous of Reuter’s noted in an excellent article a few weeks ago, this is a shift for the Pakistan military and for the US as well.  Drone strikes, for example, are occurring in Pakistan no longer as simply part of the US counterterrorism strategy of seeking to strike at terrorists in their safe havens, but as part of regular combat.  It is a distinct strategic role in which the US is supplying an air weapon for the Pakistani army, and, as this article suggests, money and equipment for counterinsurgency as well.

During the past two years, Pakistan has stepped up military operations against the militant groups that operate in the tribal areas. Although Washington has praised the Pakistani offensives, Pentagon officials have said Pakistan’s military needs help winning support among tribal elders. If successful, the joint missions and projects may help the Pakistani military retain control of areas in South Waziristan, the Swat valley and other border regions they have cleared of militants.

The use of drones, then, needs to be understood in two different strategic contexts – an air weapon in an overt war, alongside the high value, intelligence driven targeting of terrorist leadership that has mostly been the center of attention.  I’ve been having conversations with various journalists in the past couple of weeks; I am struck by their perception – accurate – that drone strikes have been on the increase in Pakistan, but their unawareness of the differing roles, combat counterinsurgency versus counterterrorism that in part accounts for the rise in drone use.  (In another post, I’ll take up the questions of counterinsurgency strategy; I have a somewhat different perspective, having seen it for many years through the lens of a human rights monitor seeing how it sometimes worked, and sometimes didn’t, in conflicts in which the US was not, or was only peripherally, involved.  Wars in Latin America, and other places.)

... and pray for their safety and honor their sacrifices, the chief foreign affairs correspondent for ABC news, Martha Raddatz, delivers herself of the following opinion concerning American fighting forces and drone warfare:

Traditionally, when a nation went to war, it had to invest its blood and treasure, but today’s joystick-wielding drone pilots can launch a missile strike from here at home, then hop in the minivan to meet the wife and kids for dinner. War couldn’t get any more impersonal.

And this is bad, why?  Because it is striking, all on its own, that Ms. Raddatz thinks this state of affairs obviously undesirable in some way; the disapproval stands out, along with the apparent sense that it is so obvious that one need not even explicitly state why it is bad.  But two views stand out from Ms. Raddatz’ account.  First, American forces wielding drones have a playstation mentality when it comes to war.  I last raised this at a conference a few days ago of military lawyers; the reaction was a collective sigh and roll of the eyes.   Second, through the use of drones, the United States and its fighting men and women invest insufficient  amounts of their own blood (why else phrase it “had to invest”?).

This comes in a special “big ideas” section of the July-August 2010 Atlantic.  Actually, there’s nothing big or special about it.  Ms. Raddatz is recycling conventional wisdom that got started back with some bits of Peter Singer’s Wired for War, and then elevated into a shared journalistic meme with Jane Mayer’s New Yorker piece last fall.  Ms. Raddatz does not seem to have received the memo, however, that the conventional wisdom among journalists is that even if you think that drones mean that US forces are not sufficiently engaged with their own blood, it is impolitic to mention it.

After I and a number of others began to call journalists and advocates and activists out on the question of whether they really, truly wanted to go on the record with what they were saying – ‘drones reduce the personal risks to US forces below the “efficient” level that would disincentivize “inappropriate” recourse to violence’, as a too-clever law student at one of our elite law schools put it to me last year – well, there was a sudden backpedaling.  No, no, you misunderstand us (this from the ACLU), we always respect the professionalism, &tc., &tc., of US servicemen and women (although the CIA, another story; it is the Designated War Criminal, so far as I can read where the international advocacy community would ideally like to carry this over the next few years, once the Obama administration is safely departed from office).

Ms. Raddatz’ “big idea” is at least six months behind the times.  Perhaps her bosses at ABC will encourage her to do a walk-back.  But it is helpful to have the unfiltered biases of journalists at least occasionally on public display so that we all know what they are, particularly when it comes to the lives of American servicemen and women, as viewed by our leading foreign correspondents.

My view is ... thank you to all American forces for your sacrifices and your heroism, this 4th of July and the rest of the year.  Any time the United States can find technology that will make your task safer – particularly while reducing civilian collateral damage over what war traditionally has meant (e.g., a rolling artillery barrage by the Pakistani army) – then, well, faster please.

Harvard professors Gabriella Blum and Philip Heymann have a new, short article online at the Harvard National Security Law Journal (which, by the way, is doing many interesting things), Law and Policy of Targeted Killing (June 27, 2010).  (A version of it will appear as a chapter in their forthcoming book on terrorism and counterterrorism.)  It is a fine essay, not over-long, and well worth reading if you at all take an interest in these topics.  Below the fold is a little bit from the introduction. Continue reading ‘Gabriella Blum and Philip Heymann on Targeted Killing’ »

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.

Continue reading ‘My House Testimony in “Drones II”’ »

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’ »