State Department Legal Advisor statement on legal justification for drone strikes

March 26, 2010

* State Department Legal Advisor Harold Koh addressing the legal justification for UAV strikes (American Society of International Law annual meeting, Mar. 25, 2010)

A seven-minute video of his speech appears here: http://fora.tv/2010/03/25/Legal_Adviser_Harold_Koh_International_Law_and_the_Obama_Administration#Harold_Koh_on_the_Obama_Admins_Detention_Practices

There does not yet appear to be an official written text from the State Department, but it seems that quotes from the text regarding the targeting question were given to ASIL for inclusion in a press release. Here are the quotes from that document:

“…[I]t is the considered view of this administration…that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war….As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….[T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

– First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

– Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

In U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum. …

[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law….

[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….

[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of war – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’”

In addition to the quotes above, I offer you my rough notes from watching the speech excerpt at the link above. I think in combination, the quotes and these notes give you just about everything he said about targeting law and policy:

– Asserts the continuing existence of an armed conflict involving al Qaeda, the Taliban, and associated forces.

– U.S. use of force is justified in jus ad bellum terms as an exercise of the inherent right of national self-defense and, in domestic law terms, under the AUMF.

– Whether to target a person in a particular location depends on multiple factors that will be specific to each case, including the imminence of the threat, sovereignty of other states involved, and willingness/ability of those states to suppress the threat in question themselves.

– In response to the claim that personalized targeting is unlawful, Koh gives the example of the killing of Admiral Yamamoto in World War II as illustration that it is permissible in war to target particular individuals with lethal force, if their status otherwise permits them to be killed.

If anyone has the full text of his speech (which I gather also addressed detention and conditions of confinement), or at least a more complete video, please do forward it to me.


next week: 3rd Annual National Security Law Faculty Workshop/IHL Training (Austin, April 1-2)

March 25, 2010

* Third Annual National Security Law Faculty Workshop/IHL Training – University of Texas, Austin (Thursday April 1 and Friday April 2)

My thanks to Geoff Corn at South Texas, Paul Kong at the ICRC, and Trevor Rush at the Army JAG School for helping assemble what promises to be a very fun event. While we have almost no space for additional guests on Thursday April 1st, we do have ample room for drop-ins on Friday April 2nd. Do join us on the latter day if you can!

Agenda

Wednesday March 31

7:00-9:30 Welcome dinner (at the AT&T Conference Center – Gabriel’s)

Thursday April 1 (The Eidmann Jury Room (room 2.310 on the map here) at the UT School of Law)

8:45-9:00 Introductions

9:00-10:00 Paper Presentation 1

Laura Donohue (Georgetown), The Long Shadow of State Secrets

Discussant: Bobby Chesney (Texas)

10:10-11:10 Instruction Block 1

LTC Jeff Bovarnick (TJAGLCS), Detention Operations and Detainee Review Boards in Afghanistan

11:20-12:20 Paper Presentation 2

Vijay M. Padmanabhan (Cardozo), Four Challenges to the Geneva Conventions Posed by Contemporary Conflicts (with John B. Bellinger, III)

Discussant: Scott Sullivan (LSU)

12:20-1:20 Lunch (including roundtable discussion of other attendees’ works-in-progress)

1:20-2:20 Instruction Block 2

Jamie Williamson (ICRC), IHL Hot Topics: Direct Participation in Hostilities, Air/Missile Warfare

2:30-3:30 Paper Presentation 3

Eric Jensen (Fordham) & Chris Jenks (Army), Detention and the Law of War

Discussant: Julian Davis Mortensen (Michigan)

3:40-4:40 Instruction Block 3

Discussion (led by Jamie Williamson, ICRC), IHL and the Future Battlefield

4:40-7:00 Free Time

7:00-9:30 Dinner (Garrido’s, downtown Austin (bus will pick up the group at the AT&T Center at 7:15, will return around 9:45)

Friday April 2 (The Brown Room, LBJ Presidential Library – map here)

9:00-10:00 Instruction Block 4

Roundtable: Military Commissions

10:10-11:10 Paper Presentation 4

Sudha Setty (Western New England), Comparative Perspectives on Specialized Courts for Terrorism Trials

Discussant: John Ip (Auckland)

11:20-12:20 Instruction Block 5

Maj Jeremy Marsh (TJAGLCS), MAJ Greg Musselman (TJAGLCS), Military Operations at the intersection of International Criminal and International Human Rights Law

12:20-1:20 Lunch (including roundtable discussion of other attendees’ works-in-progress)

1:20-2:20 Paper Presentation 5

Kathleen Clark (Washington University), Congress’ Right to Counsel in Intelligence Oversight

Discussant: Tung Yin (Lewis & Clark)

2:30-3:30 Instruction Block 6

MAJ Rob Barnsby (TJAGLCS), Intelligence Law

3:40-4:40 Paper Presentation 6

Paul A. Walker (Navy), Rethinking Computer Network “Attack”: Implications for Law and U.S. Doctrine

Discussant: Eric Jensen (Fordham)

4:40 – Event concludes; no formal dinner plans


a GTMO habeas petition denied on the merits, and another dismissed without prejudice

March 25, 2010

1. Makhtar Yahia Naji Al Warafi v. Obama (D.D.C. Mar. 24, 2010)

Judge Lamberth yesterday denied habeas relief, on the merits, to GTMO detainee Makhtar Al Warafi. There is a short order to that effect here, and that order indicates that there is a classified opinion explaining the outcome. No word on whether a redacted, unclassified opinion will be forthcoming.

2. Zahar Omar Khamis Bin Hamdoun v. Obama (D.D.C. Mar. 24, 2010)

Judge Kessler has dismissed without prejudice the habeas petition filed on behalf of GTMO detainee Zahar Bin Hamdoun. The short order to that effect is here. Based on some of the underlying filings in the public record, this appears to be another example of the scenario in which the petitioner does not wish to pursue habeas relief. It appears in this instance that Hamdoun’s attorneys asked the court to delay action in order to give them time to meet with their client and brief him regarding certain evidentiary developments relating to his case, presumably in order to persuade him to authorize continued pursuit of the matter. In any event, the petition has now been dismissed, albeit without prejudice to refilling should Hamdoun change his mind.


recent scholarship; recent events

March 24, 2010

1. Scholarship

Should Bush Administration Lawyers Be Prosecuted for Authorizing Torture?”

Pennsylvania Law Review’s online component, PENNumbra, has posted a very interesting exchange of short essays between Professors Claire Finkelstein and Michael Lewis on the question of prosecuting lawyers involved in the post-9/11 interrogation policy.

2. Recent events of interest

Harvard National Security Journal Symposium: Drone Warfare: New Robotics & The Legality of Targeted Killings (Mar. 5, 2010)

Panel 1: Unmanned Military Robotics: Drones & Your iPhone

· Missy Cummings, MIT Humans and Automation Lab

· Ken Anderson, American University

· Tad Oelstrom, Harvard Kennedy School

· Click here to view part 1 of the symposium

Panel 2: Targeted Killings of Alleged Terrorists

· Gabriella Blum, Harvard Law School

· Afsheen John Radsan, William Mitchell College of Law

· Jonathan Manes, ACLU National Security Project

· Brett McGurk, Council on Foreign Relations (Moderator)

· Click here to view part 2 of the symposium


GTMO transfers; forthcoming scholarship

March 24, 2010

1. Still more GTMO transfers…

DOJ reports that two more Uighur detainees at GTMO have been transferred, this time to Switzerland. Details here: United States Transfers Two Uighur Detainees from Guantanamo Bay to Switzerland.

2. Forthcoming scholarship

Obfuscation and Candor: Reforming Detention in a World in Denial

Benjamin Wittes

Brookings

Forthcoming in Future Challenges in National Security and Law, edited by Peter Berkowitz (Stanford, CA: Hoover Institution Press, 2010)

[There is no abstract for this 14-page essay, but you can get the flavor of
it from the following excerpt. I highly recommend this to anyone who follows
the detention policy debate.
]

“…The Western World does not believe in detention. Even when it needs detention, the West does not believe in it or want to acknowledge it. And over the years, Western nations have developed elaborate systems for pretending they don’t engage in it. The chief system for this pretense has been us, the United States; in more recent years, the Afghan criminal justice system has played an increasingly important role in helping the West pretend.

None of the United States’ major coalition partners in Afghanistan engages in detention operations. While U.S. forces have the authority to hold Taliban or Al Qaeda operatives whom they capture, coalition forces do not. Under standard coalition procedures, rather, they either turn detainees over to the Afghan criminal justice system within ninety-six hours of capture or they release them. The result is that U.S. detention operations and Afghan prosecutions, in practical terms, function on behalf of the coalition more broadly. Given that the United States is far more secure from terrorism than is Europe, it seems preponderantly likely that American detention operations have done more—probably much more—to protect European security than American security. Yet European countries not only refuse to participate in detention operations, they have become detention’s principal critics.

The arrangement—in which the United States conducts detentions on behalf of the West as a whole while our Western allies refuse meaningful participation in those operations and energetically criticize them—mirrors the larger relationship between the

United States and Europe on security matters. It is part of a larger pattern of European free-riding on the American security umbrella, and as with much such behavior, it gives European countries all of the benefits and none of the costs of a robust detention

policy. The United States neutralizes some dangerous enemies who pose a threat both to European forces in the field and to European civilians at home. At the same time, Europe’s hands are clean from a process that would raise political hackles at home—just as it does in the United States—and European officials are neatly insulated from the very difficult policy problems associated with these detentions. Indeed, they can publicly take the high road vis-à-vis the United States and pretend to maintain a pure law enforcement model for counterterrorism. It is an ideal detention arrangement for a public that doesn’t believe in detention.

We should not wax too contemptuous, however, for we are fast becoming the new Europeans…..”

The Shadow of State Secrets

Laura Donohue
Georgetown University Law Center
University of Pennsylvania Law Review, Forthcoming

Abstract:
Despite the recent explosion in scholarship focused on state secrets, very little is known about how the privilege actually works. This article fills the lacuna, demonstrating that the shadow of state secrets casts itself longer than previously acknowledged. The 2001-2009 period proves illuminating. The article begins with disputes related to government contractors, where breach of contract, patent disputes, trade secrets, fraud, and employment termination cases emerged, proving remarkable in their frequency, length, and range of technologies. Wrongful death, personal injury, and negligence extended beyond product liability to include infrastructure and services, as well as conduct of war. Empirical research suggests a conservative executive branch, more likely to intervene when breach of contract, trade secrets, or patent disputes present themselves, and unlikely – once it asserts the privilege – to back down. Critically, the expansion of the military-industrial complex appears to be giving birth to a new form of “greymail”: companies embedded in the state may threaten to air legally- or politically-damaging information should the government refuse to support their state secrets claim. The government also may depend on a corporation for a key aspect of national defense – thus creating an incentive to protect the company from financial penalties associated with bad behavior. The article next turns to the telecommunications cases that arose out of the NSA’s warrantless wiretapping program. In excess of fifty such suits emerged 2006-2009, with the government acting, variously, as plaintiff, intervenor, and defendant. Although many of these cases ultimately turned on amendments to the Foreign Intelligence Surveillance Act, state secrets assertions grounded on a closely held executive branch jurisprudence played a key role throughout. Following this, the article looks at disputes where the government defended both the suit and state secrets assertions. These cases stem from allegations of Fourth and Fifth Amendment violations, torture, environmental degradation, breach of espionage contracts, and defamation. As in the corporate cases and the telecommunications suits, the executive does not change its course once it asserts the privilege. State secrets also played a role in the criminal context. Remarkably, in two cases, the executive did not even need to assert the privilege; instead, the court simply read it into the case. Collectively, these cases underscore the importance of looking more carefully at how the doctrine works. They challenge the dominant paradigm, which tends to cabin state secrets as an evidentiary rule within executive privilege, suggesting in contrast that it has evolved to become a powerful litigation tool, wielded by both private and public actors. It also has become intimately connected to the military-industrial complex, undermining contractual obligations and perverting tort law, creating a form of private indemnity for government contractors in a broad range of areas. Patent law, contracts, trade secrets, employment law, environmental law, and other substantive legal areas have similarly been affected, even as the executive branch has gained significant and unanticipated advantages over opponents in the course of litigation.


three GTMO detainees transferred to Georgia; habeas granted to GTMO detainee Slahi

March 23, 2010

1. More GTMO transfers

DOJ reports that three GTMO detainees have been transferred to the Republic of Georgia. No identifying information was given. Press release here: United States Transfers Three Guantanamo Bay Detainees to Georgia.

2. Slahi v. Obama (D.D.C. Mar. 22, 2010) (habeas granted)

Judge Robertson has granted the habeas petition of a GTMO detainee alleged to have been an al Qaeda member involved as a facilitator in the 9/11 plot. The underlying opinion is not yet available to the public.


cert denied in Kiyemba II

March 22, 2010

* Kiyemba v. Obama (S. Ct. Mar. 22, 2010) (cert. denied)

“Kiyemba II” was an attempt to obtain review of a D.C. Circuit decision that precludes judges from reviewing decisions to transfer or release GTMO detainees to third countries, in circumstances in which the detainee objects on risk-of-torture grounds. Today the Supreme Court denied cert., leaving in place the Circuit’s opinion.

The order list containing the denial is here: http://www.supremecourt.gov/orders/courtorders/032210zor.pdf