nationalsecuritylaw more forthcoming scholarship

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.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: