The Prologue to my book No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix it, includes a section on the Ruby Ridge case. Much more on Waco and Ruby Ridge is available on the Waco page on my website. [...]
The debate over the morality and legality of targeted killing has been rekindled by the death of Osama Bin Laden and shows no sign of stopping. But most of the debaters have overlooked a key point. If it is moral and legal to individually target uniformed enemy military officers, surely the same goes for leaders of terrorist organizations. It cannot be the case that law and morality give the latter greater protection than the former. I made this point in a recent statement that got quoted by Al Jazeera (not a media outlet that I would ever have expected to be cited by, but they asked me to comment, so I did):
Ilya Somin, a professor at George Mason University’s School of Law, echoed Greenberg’s argument that “targeting individual enemy combatants in war is perfectly legal and moral”.
Somin points at US targeting of Admiral Isoroku Yamamoto, the commander of the Japanese fleet during World War II, and the British and the Czechs’ killing of German SS General Reinhard Heydrick [sic] in 1942, as precedents.
“Surely international law does not give terrorist leaders greater protection than that enjoyed by uniformed soldiers such as Admiral Yamamoto.”
“And if it is legal to individually target the commander of a uniformed military force, it is surely equally legal to target the leader of a terrorist organisation, including Osama bin Laden,” he told Al Jazeera.
To my knowledge, hardly any serious commentators claim that the targeted killing of enemy military commanders such as Yamamoto and Heydrich is either illegal or immoral. With the possible exception of Justice John Paul Stevens (who questioned the morality of the Yamamoto attack, but not its legality), everyone understands that individual military officers are legitimate targets. A capable high-ranking officer is a military asset in much the same way [...]
Presswires are reporting that Judge John Bates has dismissed the case which the ACLU and the Center for Constitutional Rights sought to bring on behalf of Anwar Al-Aulaqi’s father, contesting the ability of the President to target an American citizen hiding abroad in Yemen who the government says is a targetable participant in a terrorist group covered by the AUMF. (Thanks commenter Dom, the opinion is here; thanks also Instapundit, & corrected grammar above.) The news story points to standing problems for the father. Says the AP:
U.S. District Judge John Bates said in a written opinion Tuesday that al-Awlaki’s father does not have the authority to sue on his son’s behalf. But he says the case raises serious issues about whether the United States can plan to kill one of its own citizens.
Quick update: On a fast read of the opinion – well, anyone interested in these questions needs to read it post haste. Far from merely being a narrow discussion of standing, it goes on to discuss the political question doctrine in great detail, and concluding on this point:
…this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, see El- Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens. While it may be true that “the political question doctrine wanes” where the constitutional rights of U.S. citizens
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 [...]
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 [...]
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 [...]
(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 [...]
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 [...]
Behold, the personal drone, controlled by Ipad, Itouch, Iphone, available on pre-order for later this year from Amazon. [...]
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
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 [...]
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 [...]
… 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 [...]