nationalsecuritylaw more forthcoming scholarship

September 29, 2011

The CIA and Targeted Killings Beyond Borders

Philip Alston

New York University (NYU) – School of Law
Harvard National Security Journal, Forthcoming

This Article focuses on the accountability of the Central Intelligence Agency (CIA) in relation to targeted killings, under both United States law and international law. As the CIA, often in conjunction with Department of Defense (DOD) Special Operations forces, becomes more and more deeply involved in carrying out extraterritorial targeted killings both through kill/capture missions and drone-based missile strikes in a range of countries, the question of its compliance with the relevant legal standards becomes ever more urgent. Assertions by Obama administration officials, as well as by many scholars, that these operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability. The CIA’s internal control mechanisms, including its Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a ‘free pass’ to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself. As a result, there is no meaningful domestic accountability for a burgeoning program of international killing. This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining of the international rule of law, and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.

"The Fog of War Reform: Change and Structure in the Law of Armed Conflict after September 11"

Roger Williams Univ. Legal Studies Paper No. 110

PETER MARGULIES, Roger Williams University School of Law
Email: pmargulies

Since the attacks of September 11, 2001, the law of armed conflict (LOAC) has been locked in a bitter conflict between utilitarians, who generally defer to state power, and protective theorists, who seek to shield civilians by curbing official discretion. Consider Salim Hamdan’s conviction in a military commission for material support of Al Qaeda, recently upheld by the Court of Military Commission Review. Utilitarians view military commissions as efficient means for trying suspected terrorists. Protective theorists, in contrast, criticize the amorphous nature of material support charges.

The clash between utilitarians and protective theorists colors other issues, including “enhanced” interrogation and limits on targeting. Protective theorists merit praise for their scrutiny of interrogation, while utilitarians have trivialized interrogation abuses. However, protective theorists’ scrutiny of states is burdened by hindsight bias. Failing to recognize the challenges faced by states, protective theorists have ignored the risk to civilians posed by violent non-state actors such as terrorist networks. Because of this blind spot, protective theorists have embraced changes such as the ICRC’s Guidance on Direct Participation in Hostilities that exacerbate LOAC’s asymmetries, creating a “revolving door” that shields terrorist bomb makers while permitting continuous targeting of state forces.

To move beyond the utilitarian/protective debate, this piece advances a structural approach informed by two values: a linear time horizon and holistic signaling. Drawing on cognitive studies of humans’ flawed temporal judgment and the Framers’ work on institutional design, a linear time horizon curbs both myopia that infects officials and hindsight bias that plagues the protective model. Holistic signaling requires the United States to support the law of armed conflict, even when adversaries such as Al Qaeda reject that framework. Applying the structural test, a state can use a sliding scale of imminence and necessity to justify targeting Al Qaeda-affiliated terrorists in states unwilling or unable to apprehend those operatives. However, the material support charges against Hamdan signal a troubling turn to victors’ justice that will ultimately harm counterterrorism efforts. Stressing a linear time horizon and holistic signaling defuses rhetoric and sharpens deliberation about post-9/11 LOAC changes.

Sanctions, Transnational Organized Crime

Adam Ross Pearlman

U.S. Dep’t of Defense

Encyclopedia of Transnational Crime and Justice

This article, which will appear in the Encyclopedia of Transnational Crime and Justice when it is published in the spring of 2012, discusses Executive Order 13581, which blocks property of certain "significant transnational criminal organizations" (TCOs), determined by the Secretary of the Treasury under powers the International Economic Emergency Powers Act (IEEPA). The article reviews the origins and uses of IEEPA, and notes the parallels between the designation processes for TCOs, and the Secretary of State’s powers to designate Foreign Terrorist Organizations under the Anti-Terrorism and Effective Dealth Penalty Act (AEDPA).

The Obama Administration also released the Strategy to Combat Transnational Organized Crime simultaneously with the Executive Order. The Strategy further describes the growing national security threats posed by TCOs, and how the U.S. Government plans to disrupt the threats posed by and dismantle those groups, using all elements of national power.The article will appear in the Encyclopedia as "Sanctions, Transnational Organized Crime."

Mexico’s “War on Drugs”: Real or Rhetorical Armed Conflict?’

Patrick Gallahue

24 Journal of International Law of Peace and Armed Conflict 39 (2011)

The author considers Mexico’s “drug war” to determine if the ongoing violence between authorities and drug cartels can be classified as an armed conflict, which would make the situation subject to international humanitarian law. Looking at several influential decisions that determined the existence of an armed conflict as well as a consideration of modern, so-called “anarchic” conflicts, the current crisis seems well suited for such a categorisation. However, classifying Mexico’s situation as an armed conflict would be inappropriate. Though sophisticated in some respects, these groups lack the organisation requirement and the violence unique to this crisis make this “drug war” a rhetorical war rather than a real armed conflict

"Al-Skeini and Al-Jedda in Strasbourg"

European Journal of International Law, Vol. 23, 2012

MARKO MILANOVIC, University of Nottingham School of Law
Email: marko.milanovic

The article analyses the European Court of Human Rights’ recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.

Targeting Anwar Al-Aulaqi: A Case Study in U.S. Use of Force Justifications

Benjamin R. Farley

National Security Law Brief, Vol. II, Issue I

Anwar al-Aulaqi is a natural born American citizen of Yemeni descent who was reportedly added to U.S. targeted killing lists in early 2010. The United States argues that al-Aulaqi is a lawful target due either to his role in an ongoing armed conflict between the United States and Al Qaeda or under the auspices of self-defense. In fact, the United States relies on self-defense and armed conflict in general to justify the lawfulness of its targeted killing programs. When applicable, each of these frameworks provides legal authority for a state to use force against an individual. However, neither framework provides a blanket justification-or a blanket prohibition-on the use of targeted killing. Instead, each framework provides authority for use of force, including targeted killings, when that framework’s particular requirements are satisfied. This article argues that, although both self-defense and armed conflict provide authority for a state’s use of force when their respective parameters are satisfied, self-defense fails to justify the continuous targeting of Anwar al-Aulaqi and other individuals on U.S. targeted killing lists. Rather, al-Aulaqi is likely justifiably targetable on a continuous basis due only to his direct participation in an ongoing armed conflict between AQAP and Yemen in which the United States is intervening.

nationalsecuritylaw forthcoming scholarship

September 29, 2011

"Drones and the Boundaries of the Battlefield"

Texas International Law Journal, Vol. 47

MICHAEL W. LEWIS, Ohio Northern University – Pettit College of Law
Email: m-lewis

The HPCR Manual on International Law Applicable to Air and Missile Warfare appropriately proposes that armed drones be treated as the legal equivalent of manned military aircraft. However it does not address the biggest legal challenge facing the use of drones and that is how the boundaries of the battlefield are defined.

Although the determination of IHL’s scope and the boundaries of the battlefield places limitations on the use of any form of armed force, it has particular relevance to the future of drones due to their capabilities and limitations. Their exceptional endurance and real-time target area monitoring makes them an ideal tool for use in counter-insurgency and counter-terrorism operations. But their extreme vulnerability to even moderately capable air defense systems means that their use is currently restricted to permissive air defense environments, and for reasons of cost and effectiveness they will remain so constrained for the foreseeable future.

Because armed drones are not capable of offering surrender before employing lethal force, they may not be legally employed in a law enforcement environment, but may only be used when the laws of armed conflict (IHL) apply. This makes the question of whether counter-insurgency and counter-terrorism operations are governed by human rights law (IHRL) or IHL critical to the future of drones because, unlike traditional airpower which may be effectively employed in any air defense environment, drones are limited to such low intensity environments.

International and non-international armed conflicts take two different approaches to determining how geography cabins the use force and the application of IHL. In international armed conflicts (IAC’s) IHL applies to the participants in an armed conflict wherever they are found, subject to the restrictions of neutrality law. Non-international armed conflicts rely upon thresholds of violence and group cohesion (Tadic factors) to determine when internal conflicts within a given geographical area should properly be considered a NIAC.

These approaches work well for IAC’s and internal NIAC’s. However attempts to determine the scope of IHL in transnational NIAC’s (like the conflict between the US and al Qaeda) with reference to Tadic-like factors should fail. Accepting such an approach would turn the Geneva Conventions on their head. It would effectively grant sanctuary to and confer an important strategic advantage upon unprivileged belligerents, the same groups that the Conventions otherwise identify as the least protected and least privileged category. In contrast the application of neutrality law principles to transnational NIAC’s would prevent the unilateral use of military force without undermining the foundational principles of the Geneva Conventions.

"The Law of Operational Targeting: Viewing the LOAC Through an Operational Lens"

Texas International Law Journal, Forthcoming

GEOFFREY S. CORN, South Texas College of Law
Email: gcorn
GARY P. CORN, affiliation not provided to SSRN
Email: osmilhos

Understanding how air and missile warfare is planned, executed, and regulated requires more than just an understanding of relevant LOAC provisions. In U.S. practice (and that of many other countries), air and missile warfare is one piece of a broader operational mosaic of law and military doctrine related to the joint targeting process. Air and missile warfare is embedded within this broader targeting process. Accordingly, a genuine understanding of the law of air and missile warfare necessitates understanding how the LOAC influences and is integrated within this targeting process.

How operational commanders select, attack, and assess potential targets and how the LOAC reflects the logic of military doctrine related to this process is therefore the objective of this Essay. To achieve this ‘objective’, the authors will focus on a recent decision by the International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Gotovina. Although the military operation at the center to this case involved only limited use of air and missile warfare, the Tribunal’s extensive focus on the use of artillery and rocket attacks provides a useful and highly relevant illustration of why understanding the interrelationship between law and military doctrine is essential for the logical and credible development of the law. The author’s therefore seek to ‘exploit’ this case as an opportunity to expose the reader to this interrelationship, an interrelationship equally essential to the effective evolution of the law of air and missile warfare.

Risk and Inchoate Crimes: Retribution or Prevention?

Larry Alexander

University of San Diego School of Law

Kimberly Kessler Ferzan

Rutgers, The State University of New Jersey – School of Law – Camden

San Diego Legal Studies Paper No. 11-064

In this book chapter we give a definition of inchoat e crimes and argue that inchoate crimes, so defined, are not culpable and do not deserve punishment. Our argument against the culpability of inchoate crimes is based on several points: the ability of the actor who intends a future act that might be culpable if performed to change his mind prior to the act’s performance; the conditionality of all future-oriented intentions; uncertainty regarding the culpability-enhancing or culpability-mitigating circumstances that will exist at the future time of performance; and the roles of vacillation and duration in assessing culpability. We argue that punishment for inchoate crimes should be regarded as preventive rather than retributive.

"The Limits of Change: International Human Rights Under the Obama Administration"

Virginia Public Law and Legal Theory Research Paper No. 2011-30

PAUL B. STEPHAN, University of Virginia School of Law
Email: pbs

As a candidate for President, Barack Obama made “change” a central theme of his campaign. In particular, he railed against the Bush Administration’s human rights policy, including its resort to a war of choice that resulted in many civilian casualties, its detention of suspected terrorists at Guantánamo, its use of military tribunals instead of civilian courts to punish persons accused of terrorism, its expansive sense of what constitutes war crimes and who can be punished for committing them, and its general hostility to human rights litigants. Two-and-a-half years into the Obama administration, we find the nation embroiled in a new war of choice in Libya as well as an expanded conflict in Afghanistan, and an ongoing one in Iraq. Guantánamo remains in business, military tribunals once again have become the preferred option for punishing foreign terrorist ringleaders whom our government cannot kill outright, the law of war remains the dominant model for framing the legal limits of U.S. projections of force overseas, and courts have continued to narrow the scope of human rights litigation without serious resistance from the executive. At a glance, it appears that President Obama has become the person that candidate Obama ran against.

All this is familiar. My response will be limited, but perhaps helpful. Whether the Bush Administration or the Obama Administration responded better to the challenges posed by terrorist threats, in light of our human rights values and commitments, is not my concern. I have no interest in excoriating the current Administration for its human rights failures or defending it for its pragmatism. In 2008 I did not expect candidate Obama, once elected, to reverse, or even change significantly, the course taken by the U.S. government to meet terrorist threats or otherwise to address human rights issues. This expectation has largely been realized. My objective is to explain the institutional dynamics that brought about this result. This little paper’s objective, in other words, is positive, not normative. I want to explain why administrations behave the way they do, not guide them to some other path than the one they have taken.

The institutional constraints that limit what a serving U.S. administration can do regarding human rights include: (1) the challenge to win re-election; (2) the policies and practices developed by career civil servants and military personnel; (3) the profound difficulty of the issues and the risks presented by all conceivable choices, due to the dynamic and uncertain environment that surrounds and forms the modern national security presidency; and (4) the distinct and opposing interests of Congress and the judiciary. I will discuss how each limits the ability of a new administration to break with the past. I then will discuss a particular human rights dispute on which I have done some work, and where the Obama Administration has taken exactly the same approach as did the Bush Administration.

nationalsecuritylaw upcoming event: Brennan Center for Justice presents “Curbing Needless Secrecy: Reducing Overclassificaiton through Accountability” (Oct. 5th, at the National Press Club)

September 29, 2011

RSVP’s are required for this one, at the address indicated below:

Visit our Website
The Brennan Center for Justice at NYU School of Law


Curbing Needless Secrecy: Reducing Overclassification Through Accountability

Classification is one of the most important tools our government has to keep us safe. But what happens when too much information is classified, making it difficult to determine what secrets are truly important?

Please join the Brennan Center for Justice as it unveils its latest report, Reducing Overclassification Through Accountability, which finds that unnecessary classification has reached epidemic proportions, harming democratic decision making and national security alike. The Brennan Center’s report analyzes the causes of overclassification and proposes a solution that would introduce accountability for classification decisions into the system.

The Center will host a lunch-time discussion featuring a number of classification insiders and experts, including:

  • Scott Shane (moderator), New York Times national security reporter
  • Hon. Christopher Shays, former Congressman from Connecticut, former chair of the House Government Reform Subcommittee on National Security, Emerging Threats, and International Relations
  • Martin C. Faga, chair of the Public Interest Declassification Board, the president’s advisory committee on classification
  • J. William Leonard, former director of the Information Security Oversight Office from 2002 to 2007
  • Elizabeth Goitein, co-author of Reducing Overclassification Through Accountability

Lunch will be served.

October 5, 2011
12:30 p.m. to 2:00 p.m.

National Press Club
First Amendment Lounge
529 14th St. NW, 13th Floor
Washington, DC 20045

RSVP to Kimberly Lubrano at kimberly.lubrano or 646-292-8342.

Brennan Center for Justice at NYU School of Law | 161 Avenue of the Americas, 12th Floor | New York, NY 10013 | 646.292.8310 phone | 212.463.47308 fax | brennancenter