Mohamed v. Jeppesen Dataplan (en banc granted); ODNI GC on congressional notification; United States v. Headley and Rana; Beard on Law and War in the Virtual Era

1. Mohamed v. Jeppesen Dataplan (9th Cir. Oct. 27, 2009)

The Ninth Circuit has granted en banc review in this important case involving the state secrets privilege (thus delaying or potentially averting Supreme Court engagement with the issue).  The short order granting review is here.

2. Statement of ODNI General Counsel Bob Litt before HPSCI re notification of “significant intelligence activities” (Oct. 27, 2009)

As noted previously, HPSCI is holding open and closed hearings regarding the legal framework for oversight of intelligence activities.  Here is today’s written testimony from ODNI GC Bob Litt.  Interesting passages include:

In addition, the DNI has a statutory obligation to ensure that all Intelligence Community elements comply with the Constitution and laws of the United States, including the Congressional notification requirements of Title V of the National Security Act. DNI Blair takes seriously his responsibility to ensure that Congress has the information it needs to conduct oversight of the Intelligence Community, and I want to tell you a little bit about what Director Blair and his predecessors have done to carry out that obligation. In January 2006, an Intelligence Community Policy Memorandum (ICPM) entitled “Reporting of Intelligence Activities to Congress” was issued. That Memorandum, which is binding on all elements of the Intelligence Community, provides guidance about the requirements of notification to the committees. In March of this year, Director Blair issued a memorandum to the heads of all the Intelligence Community elements reaffirming the ICPM and directing that notification of any significant intelligence activity be provided to the intelligence committees within 14 days.

In addition, beginning last summer, Director Blair directed a comprehensive review of the Congressional notification policies and procedures throughout the Intelligence Community. This review examined whether all Intelligence Community elements were in compliance with Congressional notification obligations and had policies and procedures in place to ensure the intelligence committees would be kept fully and currently informed going forward. At the conclusion of this review, the DNI suggested that each element compare its current policies and procedures to a number of suggested “best practices” and make any necessary changes. These best practices include:

  • A process for the head of each IC element informally to canvass his or her leadership regularly for matters requiring Congressional notification. In turn, senior leadership personnel should canvass their offices or components.

  • Training and education programs to ensure that personnel understand the duty to identify and put forward matters requiring Congressional notification.

  • Written procedures that both establish the obligations related to Congressional notification and outline the internal processes to ensure that significant intelligence activities are identified and reported in a timely fashion, including specifying a point of contact that will have responsibility for ensuring that notifications are timely made.

The DNI will continue to review compliance with Congressional notification requirements by the entire Intelligence Community and, if necessary, will evaluate whether to modify the ICPM. Intelligence Community elements differ in size, structure, and mission. Some elements,  such as the CIA, are large and conduct extensive operations; others are small and purely analytical. Accordingly, there is no need for a detailed “one size fits all” policy on Congressional notification for the entire Intelligence Community. For example, a dollar threshold for “significance” might be very different for the State Department’s Bureau of Intelligence and Research, compared to the National Reconnaissance Office. Rather, different elements should adopt procedures that are adapted to their particular situations. It is essential, however, that each element have standards and procedures that are designed to ensure, to as great an extent as possible, that significant intelligence matters are identified according to a clear and consistent standard, and that such matters are promptly and fully reported to the intelligence committees.

3. United States v. Headley, United States v. Rana (N.D. Ill. Oct. 27, 2009)

A very important prosecution now underway in Chicago, involving a conspiracy to attack targets in Denmark in retaliation for the controversy over publication of a cartoon depicting Mohamed in a Danish paper a while back.  Two men are charged in relation to an 18 USC 956(a) conspiracy to commit violent acts outside the United States – one charged with a primary conspiracy violation, and both charged with providing material support in furtherance of that conspiracy (18 USC 2339A, the 1994 material support statute).  Perhaps the most notable points are that (i) Headley managed to travel from the US to the FATA region in Pakistan to meet with co-conspirators and (ii) the alleged conspiracy involved leadership figures in two Pakistan-based extremist groups ordinarily focused on Kashmir and India: Harakat-ul Jihad Islami, and Lashkar-e-Taiba.  Details from the complaint, related in the press release posted here, do raise some questions regarding the extent to which the LET-related co-conspirator was particularly concerned with pursuing this Danish operation as opposed to focusing on India.  In any event, any indication of LET turning its attention to Europe or elsewhere outside its region is notable.

[Note for any DOJ readers: The NSD’s press releases recently have begun to contain much more detail, which is great…but it sure would be nice if they also always contained links to the primary documents themselves]

4. Forthcoming Scholarship

Had a chance to read the lead article in the new issue of the American Journal of International Law on a flight tonight, and thought it was a very interesting take on the manner in which technological change can disrupt or impact legal regimes: in this case, the manner in which jus in bello or “means and methods” rules may be impacted by “virtual” military technologies such as UAVs (which result in vast increases in the availability to commanders of ISR data, and various other consequences that might impact the very meaning of proportionality analysis).  Check it out:

“Law and War in the Virtual Era”

Jack M. Beard (UCLA)

103 American Journal of International Law 409 (2009)

From the conclusion:

Virtual military technologies are taking law, war, and military institutions on an uncharted path into the future at breakneck speed. Some of the transformational effects of these new weapons systems are clear; others are still emerging. One undeniable fact is that remotely controlled and semiautomated weapons systems are continuing to assume new, important roles in military operations in more and more countries throughout the world. Furthermore, the absence of humans as the actual combatants in armed conflicts seems to be steadily achieving acceptance and entering society’s collective consciousness with relatively little reflection.

Remotely controlled machines—or “virtual combatants”—are systematically replacing human combatants, paving the way for armed conflicts in which humans will increasingly be absent from the battlefield and many dangerous war-fighting missions.165 At some point, the replacement of humans by virtual combatants and the corresponding lack of concern about the death or capture of military personnel could even challenge two conditions seen by some as limiting the willingness of states to comply fully with and enforce their law-of-war obligations in conflicts with terrorists: reciprocity and symmetry.166 While states will always have humanitarian, political, strategic, and military reasons to comply with law-of-war obligations even if terrorists can be expected to ignore them, eliminating the need for reciprocity and symmetry could nonetheless contribute to relieving pressure on states to pursue harsher measures against terrorists and other militant groups outside the law-of-war framework.

The movement toward virtual combatants does not come without risks or dangers. The long-term and understudied consequences of replacing human combatants with virtual ones raises fundamental questions in many fields. One problematic area, which lies beyond the scope of this article, concerns the overall consequences of this phenomenon for the jus ad bellum, or international law governing recourse to war. Inasmuch as technological developments reduce the political costs of going to war by eliminating the risk that human operators will be killed or captured, some commentators fear that those developments will make it easier and more attractive for states to become involved in armed conflicts.167 The power of virtual technologies to improve the observance of thejus in bello gives rise to the contrasting concern that these technologies remain dependent on the competence of human operators. Who is to be entrusted with operating virtual weapons systems and how will those persons be affected by these technologies? Although it remains to be seen whether virtual technologies will create an elite class of techno-warriors, states will certainly have to focus on at least one key factor for future operators of these systems: aptitude. An increasingly high-tech U.S. Army already needs soldiers with a high degree of aptitude. A 2005 study by the Rand Corporation commissioned by the Pentagon evaluated a variety of factors affecting military performance; it found aptitude to be critical and concluded that it becomes even more important as tasks become more technical.168

The implications of the emerging robotic military model for human staffing, recruiting, and training requirements are complex and far-reaching. In shifting from a model in which the primary purpose of technology was to support human combatants to a model in which the role of humans is to support the technology, the robotic military will necessarily demand greater levels of technical competence from the human “robotists.” As these demands for greater competence proliferate and virtual technologies merge humans and machines even more closely, each component of these new virtual weapons systems, along with the sum of their parts, will continue to be scrutinized. It is in this context and on this basis that law-of-war obligations in the virtual era will be assessed.

The virtual era is rapidly expanding to encompass the entire international community. The demand for UAVs, for example, is soaring as more and more countries, including many in the developing world, are obtaining and becoming familiar with virtual technologies and their ISR capabilities, in part because UAV systems cost much less than their manned counterparts.169

The acquisition by many countries of UAVs manufactured in the United States, France, and Germany; by Georgia and India of UAVs manufactured in Israel; and by Pakistan and Egypt of UAVs manufactured in China demonstrates that the implications of the virtual era already extend far beyond U.S. military operations alone.170 This growing worldwide familiarity with UAVs, even if some countries use them only for basic reconnaissance or artillery-spotting missions, will inescapably direct more attention in the future to the improving ability of military forces, especially those belonging to states that can afford to deploy many advanced systems, to verify objectives and take other precautionary measures to ensure observance of the proportionality principle in attacks.

Virtual technologies are thus on the verge of significantly shaping the views and conduct of all states, even those that do not possess them or cannot afford to deploy them in great numbers. New, extensive virtual surveillance capabilities come with new burdens for the states that benefit from them—burdens that are more and more likely to be invoked by poor or other less technologically advanced states in any discussion about the corresponding legal duties. The developed states that seek to avoid these burdens may again find themselves haunted by the new legal content of words such as “available.” Once relied upon as permissive terms, these words may now unexpectedly impose constraints. For example, at the diplomatic conference that ultimately adopted Protocol I, one state observed that the obligation to identify military objectives as targets under Article 57(2) “depended to a large extent on the technical means of detection available to the belligerents.”171 In its Commentary, the International Committee of the Red Cross agreed, observing that “[s]ome belligerents might have information owing to a modern reconnaissance device, while other belligerents might not have this type of equipment.”172

Drawing on such considerations, less developed states can argue that richer countries with extensive, widely deployed and sophisticated virtual surveillance capabilities and unprecedented access to once-unimaginable levels of ISR information are subject to a higher standard of care in verifying targets as military objectives and taking other precautionary measures.

The more exacting legal standards likely toflowfrom virtual surveillance capabilities will not be diminished by the global newsroom, which increasingly enhances its reporting with video footage furnished by virtual platforms overhead. Even the five-day standoff and military action against Somali pirates holding an American hostage on a small lifeboat in a remote corner of the Indian Ocean in April 2009 were not exempt from news reports showing video footage from aUAVused by U.S. forces in the operation.173 When a military operation is not successful or what actually happened is disputed, no small similarity may be remarked to the instant replay so familiar to American football fans; although it may lack the assigned referees, the process involves a close examination of digitally recorded facts, subjects disputed calls to wide public debate, prompts a more exacting application of rules, and sometimes leads to the refinement of those rules. Similarly, whether the home team likes the call or not, a new era of openness and debate has arrived, and with it new life for some of the rules on the playing field. Virtual weapons systems are poised to transform the conditions of future battlefields for humans and change law, war, and military institutions in profound, far-reaching ways. While military-technological advances have routinely worsened the plight of civilians in war and made law an even more distant concern on the battlefield, virtual technologies are unexpectedly bringing laws that protect civilians closer to war than ever before. These technologies are in fact giving unprecedented traction, transparency, and relevance to venerable jus in bello rules that states have often ignored, manipulated, or consigned only to theoretical applications. At the same time, virtual technologies are refashioning the way military operations are conducted, the way military institutions function, and the way objectives are defined in war itself. The implications of the dawning virtual era deserve to be more carefully studied across a wide spectrum of human behavior. For the military institutions that must address the unfolding consequences of virtual technologies originally designed to help project military power, such a project is in some respects a study in irony.

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