United States v. Chapman, United States v. Metsos (S.D.N.Y. June 27, 2010) (espionage arrests)

June 28, 2010

* United States v. Chapman, United States v. Metsos (S.D.N.Y. June 27, 2010) (espionage arrests)

A number of individuals were arrested this past weekend on charges of serving as undeclared Russian agents. The press release appears below, and the two criminal complaints (forwarded by DOJ along with the press release) are attached.

Complaint # 2.pdf
Complaint # 1.pdf

Stigall on DPH in the context of the Civilian Response Corps

June 28, 2010

* forthcoming scholarship

The Thickest Grey: Assessing the Status of the Civilian Response Corps Under the Law of International Armed Conflict and the U.S. Approach to Targeting Civilians

Dan E. Stigall (DOJ – Office of International Affairs)
American University International Law Review, Vol. 25, pp. 101-130, 2010

The U.S. approach to armed conflict has recently undergone a profound shift as policymakers and military commanders have been forced to seek solutions to the seemingly intractable problems associated with developing countries and their relative instability. This focus on reconstruction and stabilization has led to the rise of “stability operations” – a relatively new addition to the military lexicon. Moreover, what is now called “stability operations” is a hybrid area that fuses a core military mission with a field of knowledge and experience that is dominated, at least in theory, by civilians. In that regard, there is another grey area surrounding the question of what conduct disqualifies a civilian from the protections and immunity traditionally given to civilians during armed conflict. The resultant lack of clarity can translate into significant legal consequences – both for civilians who are mobilized pursuant to such an effort and for U.S. policymakers who seek to criminalize the conduct of terrorists and insurgents.

This article explores the phenomenon of U.S. government civilians who engage in stability and reconstruction operations in conflict zones and their legal status under the law of armed conflict, paying specific attention to the corps of federal civilians being developed for this specific purpose: the Civilian Response Corps. Because the field of stability operations is a hybrid area that requires both civilian and military resources to attain a common objective, the objectives of each are conflated and, thus, necessarily colors the civilians engaging in such work with a belligerent hue. Ultimately, this article posits that the complex nature of civilian operations is such that neither the military nor civilians can be extricated from it and, as such, U.S. interests are best served by articulating a single, formal, and more restrictive interpretation of what it means to “directly participate in hostilities”.

forthcoming scholarship: Blum and Heymann on Targeted Killings

June 28, 2010

Law and Policy of Targeted Killings

Gabriella Blum and Philip Heymann (Harvard Law)

Harvard National Security Journal

From the conclusion:

Targeted killing operations display more clearly than any other counterterrorism tactic the tension between labeling terrorism a crime and labeling it an act of war. If a terror attack is simply a crime, counterterrorism forces would follow the same laws and rules as the Chicago or Miami police department do in fighting crime, where intentional killing could rarely if ever be lawful, other than where necessary in a situation immediately requiring the defense of self or others, or in making an arrest of an obviously dangerous felon. From the perspective of international peacetime relations, targeted killings face even greater legal constraints when targeting a terrorist outside the state’s jurisdiction.

If a terrorist plan is an act of war by the organization supporting it, any member of any such terrorist organization may be targeted anytime and anywhere plausibly considered “a battlefield,” without prior warning or attempt to capture.

Known or anticipated collateral damage to the innocent is generally prohibited in law enforcement, but is legitimate within the boundaries of proportionality in fighting wars. In fighting crime, the government’s obligation to protect its citizens applies to all citizens—criminals and innocents. In fighting wars, the government’s primary obligation is to its own citizens, with only limited concern for the well-being of its enemies.

Assuming, as we do, that states do have a right to defend themselves against acts of terrorism, targeted killings cannot be always illegal and immoral. But because terrorism is not a traditional war, nor a traditional crime, its non-traditional nature must affect the ethical and strategic considerations that inform targeted killings, the legal justification behind them, and the choice of targets and methods used to carry them out.

As we have shown, targeted killings may be justified even without declaring an all-out “war” on terrorism. A war paradigm is overbroad in the sense that it allows the targeting of any member of a terrorist organization. For the United States, it has had no geographical limits. When any suspected member of a hostile terrorist organization—regardless of function, role, or degree of contribution to the terrorist effort—might be targeted anywhere around the world without any due process guarantees or monitoring procedures, targeted killings run grave risks of doing both short-term and lasting harm. In contrast, a peacetime paradigm that enumerates specific exceptions for the use of force in self-defense is more legitimate, more narrowly tailored to the situation, offers potentially greater guarantees for the rule of law. It is, however, harder to justify targeted killing operations under a law enforcement paradigm when the tactic is used as a continuous and systematic practice rather than as an exceptional measure. Justifying targeted killings under a law enforcement paradigm also threatens to erode the international rules that govern peacetime international relations as well as the human rights guarantees that governments owe their own citizens.

Whichever paradigm we choose as out starting point, greater limitations than those offered by the Parks memorandum or that are currently operating in the American targeted killings program should be adopted. The limits set by the Israeli Supreme Court—ironically, within the paradigm of wartime operations—are a good place to start.

First, the tactic should not be used unilaterally by the endangered state if the host country of the terrorists is willing and able to act on its own to arrest or disable in a timely manner the source of the threat. Host country cooperation in capture and extradition must be the first alternative considered. That is, targeted killings must only be carried out as an extraordinary measure, where the alternative of capture or arrest is unfeasible.

Second, only those who are actively and directly involved in terrorist activities are legitimate targets; not every member of a terrorist organization is or should be.

Third, the fact that terrorists do not wear uniforms should not give them an unfair legal advantage over soldiers in uniform in the sense of immunity from deliberate attack. But their lack of uniform does raise legitimate concerns about the ability to ensure the correct identification of the target, in terms of personal identity as well as specific culpability. Any targeted killing operation must therefore include mechanisms in its planning and execution phases that would ensure an accurate identification. Such mechanisms need not involve external judicial review; judges are neither well situated nor do they have the requisite expertise to authorize or reject an operation on the basis of intelligence reports. Rather, the system should be based on verified and verifiable intelligence data from different and independent sources, careful monitoring, and safety mechanisms that would allow aborting the mission in case of doubt.

The concern about collateral damage requires specific attention. Unlike ordinary battlefield strikes, the fact that the targeting forces have control over the time, means, and methods of strike mandates that a heightened degree of care should be exercised to choose an occasion and means that will minimize collateral harm to uninvolved individuals, especially where the operations are carried out outside an immediate conflict zone. In those cases, we believe that where innocent civilians suffer collateral damage, those injured should generally be compensated.

Finally, the aggression of the targeted killing tactic mandates its measured use in only the most urgent and necessary of cases. The government’s interest should be to tame violence, not exacerbate it. Where alternatives exist, they should be pursued, not just as a matter of law but also as a matter of sound policy.

This article appears as a chapter in Gabriella Blum & Philip Heymann, Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism (MIT Press, forthcoming Sept. 2010).