nationalsecuritylaw forthcoming scholarship

October 26, 2011

* forthcoming scholarship

Targeting Co-Belligerents

Jens David Ohlin

Cornell Law School
TARGETED KILLINGS: LAW & MORALITY IN AN ASYMMETRICAL WORLD, Claire Finkelstein, Jens David Ohlin, Andrew Altman, eds., Oxford University Press, Forthcoming

One of the central controversies of the targeted killing debate is the question of who can be targeted for a summary killing. The following chapter employs a novel normative framework: how to link an individual terrorist with a non-state group that threatens a nation-state. Six linking principles are catalogued and analyzed, including direct participation, co-belligerency, membership, control, complicity and conspiracy. The analysis produces counter-intuitive results, especially for civil libertarians who usually eschew status principles in favor of conduct principles. The concept of membership, a status concept central to international humanitarian law, is ideally suited to situations, like targeted killings, that involve summary killing on the battlefield. This chapter defends one version of the concept, called ‘functional membership’, which takes into account the uniqueness of irregular terrorist organizations. The defense relies on the fact that the alleged dichotomy between status and conduct is partially illusory. Second, functional membership is a hybrid between status and conduct and preserves the best elements of the law of war paradigm with the criminal law enforcement paradigm. Third, functional membership is necessary for applying the pre-existing international humanitarian law standards of ‘directly participating in hostilities’ and engaging in a ‘continuous combat function.’

TARGETED KILLINGS: LAW & MORALITY IN AN ASYMMETRICAL WORLD, Claire Finkelstein, Jens David Ohlin, Andrew Altman, eds., Oxford University Press (forthcoming)



1. Allowing the State to Rebut the Civilian Presumption: Playing Whack-A-Mole Without a Mallet? Colonel Mark "Max" Maxwell

2. Targeting Co-belligerents Jens David Ohlin

3. Can Just War Theory Justify Targeted Killing? Three Possible Models Daniel Statman

4. Justifying Targeted Killing With a Neutral Principle? Jeremy Waldron


5. The Ethics of Targeted Killing on a Moral Continuum Jeff McMahan

6. Targeted Killing as Preemptive Action Claire Finkelstein

7. The Privilege of Belligerency and Formal Declarations of War Richard V. Meyer


8. Going Medieval: Targeted Killing, Self-Defense, and the Jus ad Bellum Regime Craig Martin

9. Imminence in Justified Targeted Killing Russell Christopher

10. Defending Defensive Targeted Killings Phil Montague


11. The Importance of Criteria-Based Reasoning in Targeted Killing Decisions Amos N. Guiora

12. Are Targeted Killings Unlawful? A Case Study in Empirical Claims without Empirical Evidence Gregory S. McNeal

13. Operation Neptune Spear: Was Killing Bin Laden a Legitimate Military Objective? Kevin H. Govern

14. Efficiency in Bello and ad Bellum: Making the Use of Force Too Easy? Kenneth Anderson


15. Targeted Killing and the Logic of Double Effect Fernando R. Tesón

16. Targeted Killings and the Morality of Hard Choices Michael S. Moore

17. Targeted Killing and the Strategic Use of Self-Defense Leo Katz

"Transcending, but Not Abandoning, the Combatant-Civilian Distinction: A Case Study"

Rutgers Law Review, Vol. 63, No. 4, 2011

ALEC D. WALEN, Rutgers School of Law, Camden

The distinction between combatants and civilians determines who can be prosecuted for using force, who can be subjected to long-term preventive (as opposed to punitive) detention, and who can be killed even when they do not pose an imminent threat. The traditional law of war uses the first issue as the key to understanding the second two. In doing so, it relies on a basic legal symmetry. Those who are privileged to use military force cannot be prosecuted for having done so (at least as long as they respected the legal limits on the use of military force), but they can be fought with the basic tools of fighting a war: detaining or killing the forces on the other side. Meanwhile, those who are not privileged to use force may be prosecuted if they use it, but they may not be fought using the normal tools of war fighting. Recent threats from al-Qaeda and affiliated terrorist groups have put pressure on that connection. Many argue for a more functional definition of a combatant, such that if a person is part of a group that uses military levels of force, then he is a combatant. The conflict between these two models – the traditional law of war model and the functionalist model – is at the heart of the recent five-to-four decision of the Fourth Circuit in al-Marri v. Pucciarelli. Both models, however, are inadequate. The functionalist approach is insufficiently respectful of basic civil rights, and the traditional approach is too dismissive of the problems presented by using traditional criminal law techniques when fighting enemies who use military levels of force.

In this paper, I describe the two sides, as developed in al-Marri. I then explain why each is failing to come to terms with important concerns that the other treats as central. I then argue that this impasse can be avoided if we transcend the combatant-civilian distinction. In saying that we should transcend the combatant-civilian distinction I do not mean to reject the distinction altogether. I argue that the traditional combatant category, at least as applied to aliens, successfully marks out people who can be justifiably be subject to long term detention without trial. My point is that the category of combatants should not be taken to arise in some sort of fundamentally different legal regime. Rather, the law with regard to combatants should be viewed as grounded in a deeper liberal, constitutional legal order that is committed to respecting autonomy. Within that deeper legal order, some, but not all, suspected members of groups like al-Qaeda can justifiably be detained for long periods of time without trial. Ultimately, the most important questions, as I have argued at length elsewhere, are not limited to whether an individual is a combatant in the traditional sense; they also include (a) whether he can be held accountable for any future use of force against the state, and (b) whether the detaining state has an obligation to release and police him if it cannot or chooses not to try to convict him for a past crime.

"The World We Live in"

Temple Law Review, Vol. 83, No. 2, pp. 295-308, Winter 2011

OWEN M. FISS, Yale University – Law School
Email: owen.fiss

This Essay focuses on a threat to our constitutional order — the curtailment of freedom of speech in the name of fighting terrorism. Specifically, my subject is the Supreme Court’s decision last June in Holder v. Humanitarian Law Project, which upheld the authority of Congress to criminalize political advocacy on behalf of foreign terrorist organizations. Like warrantless wiretapping, the risk of a criminal prosecution for political advocacy — for example, an utterance by an American citizen in an American forum that a foreign terrorist organization has a just cause — poses a threat to our democracy, but the danger is greater. The risk of warrantless wiretapping inhibits speech; the risk of a criminal prosecution stops it altogether.

"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.

"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.

"What’s Terrorism Got to Do with It? The Perils of Prosecutorial Misuse of Terrorism Offenses"

MICHAL BUCHHANDLER-RAPHAEL, Washington and Lee University – School of Law
Email: mb3ff

State and federal statutes contain many criminal prohibitions that are commonly perceived as terrorism-related crimes. These statutes, however, do not make the definition of terrorism – a term whose components legislatures do not agree upon – an element of the crime. Instead, the terrorism classification is merely inferred based on features that typically characterize crimes of terrorism. These include the scope of the harm intended or inflicted, the nature of the technical measures used to carry out the attack, or the aid provided to terrorist organizations. These statutes, however, are too broad, covering a wide variety of crimes above and beyond the terrorism context.

The Article suggests that one direct implication of the failure to accurately define terrorism and make it an element of terrorism crimes is that the distinction between terrorism and “ordinary” crime becomes ambiguous. The Article identifies an unexplored problem in the criminal law against terrorism: unlimited prosecutorial discretion enables prosecutors to misuse terrorism-related offenses in cases that are unrelated to terrorism as this term is commonly understood. The Article examines the risks and unintended consequences of this prosecutorial practice, ranging from treating similarly situated defendants differently to potentially opening the door to additional applications of terrorism-related offenses in contexts such as drug trafficking.

To remedy the above problems, the Article proposes legislative reform concerning the elements of terrorism offenses by making specific intent to coerce governments to change their actions and policies the required mental state for conviction.