nationalsecuritylaw forthcoming scholarship: McNeal on Collateral Damage Estimation in US Practice

November 16, 2011

(note: you may have seen the abstract for this paper previously, but now the underlying paper itself is posted on SSRN)

The U.S. Practice of Collateral Damage Estimation and Mitigation

Gregory S. McNeal

Pepperdine University School of Law

This paper explains how the U.S. military estimates and mitigates the impact of conventional weapons on collateral persons and objects in most military operations involving air-to-surface weapons and artillery. It is the descriptive part of a larger work discussing the normative implications of U.S. targeting practices.

In recent years, an entire body of academic literature and policy commentary has been based on an incomplete understanding of how the U.S. conducts military operations. The literature is incomplete because U.S. practices are shrouded in secrecy and largely inaccessible. As a result commentators have lacked a descriptive foundation to analyze and critique U.S. operations. Their writings have focused on easily describable issues such as whether a target was a lawful military objective, and then typically shift attention to the question of proportionality balancing and collateral damage.

These commentators skip an important aspect of actual practice – the scientifically grounded mitigation steps followed by U.S. armed forces. Those mitigation steps are designed to ensure a less than 10% probability of collateral damage resulting from any pre-planned operation. This paper’s description differs from the general and incomplete approach currently found in scholarship and more accurately describes the reality of modern operations. In those operations U.S. armed forces follow rigorous steps prior to engaging in any proportionality balancing.

This paper is intentionally descriptive and explanatory; it makes a contribution to theory by providing a qualitative empirical account (based on public documents and field interviews) that explains for the first time in scholarly literature the process of collateral damage estimation and mitigation as practiced by the U.S. military. While this paper will be especially useful for those seeking to understand how collateral damage is estimated in targeted killing operations, the paper’s relevance is not limited to the context of targeted killings.

Key Findings: In pre-planned operations the U.S. military follows a rigorous collateral damage estimation process based on a progressively refined analysis of intelligence, weapon effects, and other information. When followed, this process dramatically reduces the amount of collateral damage in U.S. military operations, and also ensures high levels of political accountability. However, due to the realities of combat operations, the process cannot always be followed; The U.S. military’s collateral damage estimation process is intended to ensure that there will be a less than 10 percent probability of serious or lethal wounds to non-combatants; Less than 1% of pre-planned operations which followed the collateral damage estimation process resulted in collateral damage; When collateral damage has occurred, 70% of the time it was due to failed “positive identification” of a target. 22% of the time it was attributable to weapons malfunction, and a mere 8% of the time it was attributable to proportionality balancing – e.g. a conscious decision that anticipated military advantage outweighed collateral damage; According to public statements made by U.S. government officials the President of the United States or the Secretary of Defense must approve any pre-planned ISAF strike where 1 civilian casualty or greater is expected.

nationalsecuritylaw new SASC detention bill

November 16, 2011

The Senate Armed Services Committee has passed a new version of the detainee language for the NDAA FY ’12. The version keeps the same fundamental structure in relations to its provisions expressly authorizing military detention and actually affirmatively requiring its use in certain cases, but also introduces a number of important and interesting changes. The bill is posted here, and I’ve posted extensive commentary here. A letter from SecDef Panetta objecting to the revised bill in certain respects is here.

nationalsecuritylaw forthcoming scholarship

November 15, 2011

"Taking Humans Out of the Loop: Implications for International Humanitarian Law"

Journal of Law Information and Science, Vol. 21, 2011
University of Miami Legal Studies Research Paper No. 2011-21

MARKUS WAGNER, University of Miami – School of Law
Email: mwagner

Written as a comment to Brendan Gogarty’s and Meredith Hagger’s 2008 article entitled The Laws of Man over Vehicles Unmanned: The Legal Response to Robotic Revolution on Sea, Land and Air, this brief article explores the international humanitarian law implications of the growing trend toward the deployment of autonomous weapon systems. It argues that while technological development has been impressive and continues to advance at a rapid pace, computer technology’s ability to make qualitative determinations is structurally difficult, if not impossible. In light of this, the deployment of fully autonomous weapon systems is illegal, quite apart from the ethical and political challenges that this development presents.

"Material Witness Detentions After al-Kidd"

Kentucky Law Journal, Forthcoming
Widener Law School Legal Studies Research Paper No. 11-26

WES OLIVER, Widener University – School of Law
Email: wmoliver

The Supreme Court’s decision in Ashcroft v. al-Kidd was a tempest in a teapot. The Court concluded only that a witness was no less susceptible to arrest under the Federal Material Witness Statute if the government was interested in prosecuting the witness himself. Unremarkably under the holding, it is no more difficult to detain an al-Qaeda member who witnessed a crime than it is to detain an innocent bystander who witnessed a crime. The fact that a criminal suspect can be held, however, raises concerns beyond the scope of the narrow question before the Court. If the government’s real interest is bringing a case against the witness, the government will be far less circumspect in its decision to seek an arrest warrant for the witness and will not have an incentive to hold the witness in the least restrictive conditions. Vague standards that assume the government’s good faith may be sufficient when the prosecution’s principal interest is the witness’ effective testimony. These standards are insufficient when material witnesses are potentially suspects. The egregious facts of the al-Kidd case reveal that Congress must establish clearer criteria for the arrest and treatment of material witnesses.

Taking Distinction to the Next Level: Accountability for Fighters’ Failure to Distinguish Themselves from Civilians

Laurie R. Blank

Emory University School of Law

Valparaiso University Law Review, 2011-2012

The nature of recent conflicts and the “civilianization” of the battlefield has led many to question the effectiveness of distinction going forward, in essence challenging the very foundations of the law of armed conflict. But is distinction truly on the defensive, or do we simply need to rethink how we approach this most fundamental protective principle? The nature of contemporary conflicts demands that we take distinction to the next level and hold non-state actors and others accountable for the failure to distinguish themselves from innocent civilians. Trumpeting the obligation to distinguish between combatants and civilians and then bemoaning the blurred and complex nature of the zone of combat, in which fighters purposely blend into the civilian population and fight from within the civilian infrastructure, simply falls short of the mark. The next step therefore is to reinforce this distinction not only in the conduct of hostilities but also in the post-conflict accountability phase. International criminal tribunals have issued numerous convictions and sentences for deliberate targeting of civilians, indiscriminate attacks on civilians and disproportionate attacks on civilians – all violations of the principle of distinction. Accountability for violations in this second part of distinction, however, lags far behind. This article will explore how the failure to hold persons accountable for perfidy and other violations of the obligation to distinguish will continue to undermine the ability of the law to provide maximum protection to innocent civilians during armed conflict. These violations pose an equal danger to civilians when soldiers cannot tell who is an innocent civilian and who is a fighter simply disguised in civilian clothes. When militants benefit both tactically and strategically from the use of the civilian population as a shield and as a disguise, the international community must take distinction to the next level and demand accountability for such violations as a critical step in the protection of civilians during armed conflict.

"Conspiracy Law’s Threat to Free Speech"

STEVEN R. MORRISON, University of North Dakota School of Law
Email: steven.r.morrison

In this article, I define the relationship between the systems of criminal conspiracy law and speech rights. This relationship is characterized primarily by two conflicting sets of interests — public safety and freedom to speak — and the fact that conspiracy law’s exigencies virtually always prevail. This means that the law largely fails to acknowledge the need to balance these two sets of interests against each other.

I attempt to engage a positivist approach to my topic by simply describing this intertwinement. This positivist approach leads ultimately to normative questions: what types of speech ought to be admissible to prove agreements and overt acts, and what types of speech should be inadmissible, protected by the First Amendment? should the admissibility of various types of speech remain a static absolute, or should it shift as a function of the remaining evidentiary landscape? should even core First Amendment speech be admissible if closely coupled with some other type of evidence, or should this speech be admissible on its own, at least for some purposes? how do we answer these questions when it comes to potential evidence that is a speech/conduct hybrid?

In this article, I refrain from fully addressing these normative questions. Rather, I present a functionalist approach that acknowledges that both conspiracy law and speech law support important social goals. I then seek to provide a theoretical roadmap toward Pareto improvement. At this point, normativity sets in, as I focus on increasing speech rights without undermining public safety.

To do so, I discuss the history of the intertwinement of conspiracy law and speech rights, beginning in 1867-69. I then argue that we are today living in the third First Amendment crisis. When it was once anarchists and communists being targeted, it is now Muslims. I illustrate how Muslims are being targeted for their unpopular speech through the medium of conspiracy law. This process is common to all abusive conspiracy charges since the early twentieth century, and points the way to Pareto improvement.

"The New Conspiracy to Support an Idea"

STEVEN R. MORRISON, University of North Dakota School of Law
Email: steven.r.morrison

This article sets forth the argument that conspiracy law in the United States may be entering a new stage, thanks to the efforts of government prosecutors in the terrorism context. The new stage is characterized by the criminalization of conspiracies to support an (unpopular) idea.

This new conspiracy paradigm confronts the intertwined relationship between conspiracy law and speech rights. Its foundational argument is that speech rights are limited in the context of a conspiracy trial because speech is used as evidence against a defendant. This is not a bad thing per se. The conflict between conspiracy law’s interests and speech rights is questioned, however, when defendants’ anti-American and pro-“jihad” speech is used when it could indicate support for terrorism, a fundamentalist (but nonviolent) religiosity, or mere protest against the U.S. military’s involvement in the Middle East.

I show that the government’s current targeting of Muslims is a continuation of our historic struggle to secure speech rights in light of criminal charges against other unpopular groups, namely anarchists and communists. I also show how contemporary criminal statutes and the evidentiary rules in conspiracy trials enable the targeting of an unpopular group.

I then offer an approach to solving the problem of abusive conspiracy charges (those charges involving defendants who were not engaged in crime, but were simply exercising their speech rights). This approach rejects the zero sum notion that an increase in speech rights means reduced effectiveness of conspiracy law to secure public safety. Rather, I believe we live in a system of non-zero-sumness, in which we can both maximize speech rights and protect society from truly dangerous conspiracies.

To illustrate my rejection of the zero sum approach, I introduce the concept of “interest brinkmanship.” In the speech-conspiracy context, this means that with every increase in speech rights, application of conspiracy law also increases. The zero sum approach logically would result in vast direct speech protections, but also a universally applied conspiracy law that ultimately restricts speech by proxy. We need to engage a non-zero-sum approach if we are to secure our right to speech and maintain a legitimate conspiracy law system that actually protects society.

nationalsecuritylaw United States v. Bujol (S.D. Tex.)

November 15, 2011

From the DOJ press release:

HOUSTON — Barry Walter Bujol Jr., a 30-year-old Hempstead, Texas, resident and former student at Prairie View A&M University, has been convicted for attempting to provide material support to Al Qaeda in the Arabian Peninsula (AQAP), a designated foreign terrorist organization, Kenneth Magidson, U.S. Attorney for the Southern District of Texas, announced today, along with Lisa Monaco, Assistant Attorney General for National Security. The verdict was returned today in Houston federal court by U.S. District Judge David Hittner.

Bujol requested a bench trial before Judge Hittner which lasted nearly four days, during which he acted as his own attorney. The United States presented a total of 325 trial exhibits and 12 witnesses. During the trial, Bujol did not testify on his own behalf nor did he present any witnesses. Closing arguments were completed on Thursday, Nov. 10, at which time the court requested the weekend to consider all the evidence. This afternoon, Judge Hittner presented his ruling, finding Bujol guilty on both counts with which he was charged – attempt to provide material support or resources to a designated foreign terrorist organization as well as aggravated identity theft.

The charges against Bujol resulted from a long-term investigation conducted by the FBI’s Joint Terrorism Task Force. The investigation, which began in 2009, involved a confidential human source (CHS) who purported to be an AQAP recruiter interested in helping Bujol pursue his goal of conducting “violent jihad.” Bujol was arrested on May 30, 2010, after boarding a ship docked at the Port of Houston, which Bujol believed was bound for Algeria where he would stay at an Al Qaeda safe house before continuing on to Yemen. Bujol intended to stow away to join AQAP and to deliver items the CHS gave him to AQAP. AQAP was designated a foreign terrorist organization as the term is used in Title 18, United States Code, Section 2339B(g)(6) and Section 219 of the Immigration and Nationality Act by the United States Secretary of State on Jan. 19, 2010.

Evidence at trial revealed that Bujol had been in contact with Anwar Al-Aulaqi, a now-deceased Yemeni-American AQAP associate and a proponent of violent jihad against the United States. Bujol had asked Al-Aulaqi for advice on raising money for the “mujahideen” without attracting police attention and on his duty as a Muslim to make “violent jihad.” Al-Aulaqi replied to Bujol’s e-mails by sending Bujol a document entitled “42 Ways of Supporting Jihad,” which asserted that “jihad’ is the greatest deed in Islam…[and] obligatory on every Muslim.” Court records indicated that the “jihad” Al-Aulaqi advocated involved violence and killing. The document implored Muslims, among other things, to conduct firearms training, improve their physical fitness for guerrilla warfare and to make “violent jihad.”

In 2009, Bujol made three attempts to depart the United States for the Middle East, but law enforcement, believing these were Bujol’s efforts to make “violent jihad,” thwarted him each time he tried to leave. Concerned about Bujol’s violent intentions and to further the investigation, agents arranged for a CHS to meet Bujol. Bujol eventually told the CHS he desired to fight with the “mujahideen.” The CHS, who testified at trial, told Bujol that he recruited people for AQAP and could help him. Each time the CHS told him he would be joining AQAP, Bujol replied by saying “God willing” in Arabic.

Records indicated that to prove his worth to the CHS and AQAP, Bujol performed numerous purported “training exercises” often involving surveillance detection and covert means of communication. Moreover, Bujol began to e-mail the CHS military manuals and articles on military unmanned aerial vehicles (UAV) that he had found on the Internet, explaining to the CHS how the information could be helpful to AQAP. In a running conversation about UAVs, Bujol repeatedly told the CHS, often using metaphorical language, that AQAP should attack the human beings essential to operate the UAVs instead of attacking the UAVs themselves. Bujol suggested multiple targets, including one in the Southern District of Texas.

On May 30, 2010, the CHS contacted Bujol with a code word they previously agreed would signal the beginning of Bujol’s travel to the Middle East to join AQAP. They drove together to the Port of Houston where the CHS told Bujol he would stow-away on a ship bound for Algeria. After a short stay in Algeria for training, the CHS told Bujol he would travel to Yemen to fight for AQAP. The CHS gave Bujol various items to carry to AQAP’s purported operative in Algeria, which included two public access restricted military manuals, global position system receivers, pre-paid international calling cards, SIM cards and approximately 2,000 in Euros, among other items. Bujol secured these items in his baggage and quickly boarded the ship. Minutes after stowing away in a room on board the ship, agents took him into custody without incident.

Simultaneously, agents executed a search warrant on his apartment and his laptop computer. On the computer, agents found a home-made video montage of still photographs, including images of Osama bin Laden, Najibullah Zazi and multiple armed “mujahideen” fighters, which Bujol narrated. On the video, which was offered into evidence at trial, he addressed his words to his wife, explaining that he had left her suddenly and without forewarning to pursue “jihad.” Bujol told her he would likely not see her until the afterlife.

The aggravated identity theft charge, of which he was also convicted, stemmed from a false transportation worker identity card (purporting to be a card issued by the Transportation Security Administration) that Bujol possessed to access the Port of Houston. Bujol supplied the CHS with a passport photo and a false name and the CHS used these materials to acquire the false card for use in the sting operation. On the night of the operation, Bujol used the false card to gain access to the port.

Bujol has been in federal custody since his May 30, 2010, arrest and will remain in custody pending his sentencing, at which time he faces a maximum of 15 years in federal prison for the terrorism charge and an additional five years for the aggravated identity theft conviction as well as a $250,000 fine.

This multi-agency investigation was conducted by the U.S. Attorney’s Office; the Department of Justice’s Counterterrorism Section; the FBI’s Joint Terrorism Task Force in Bryan, Texas — comprised of the Brazos County Sheriff’s Office, the Texas A&M University Police Department, the Bryan Police Department, the U.S. States Secret Service, the Waller County Sheriff’s Office and the College Station Police Department. Other investigating agencies were the Houston FBI Joint Terrorism Task Force, the Prairie View A&M University Department of Public Safety, the New Jersey State Police, the Coast Guard Investigative Service, Immigration and Customs Enforcement – Homeland Security Investigations, Houston Police Department and the Canada Border Services Agency.

The case was prosecuted by Assistant U.S. Attorneys Mark McIntyre and Craig Feazel, as well as Garrett Heenan, Trial Attorney from the Counterterrorism Section of the Justice Department’s National Security Division, and former Assistant U.S. Attorney Mark W. White III.

nationalsecuritylaw United States v. El Kebir (E.D.N.Y.)

November 11, 2011

* United States v. El-Kebir (E.D.N.Y.)

Abdeladim El-Kabir was arrested in Germany, along with two other men, back in April of this year. German officials at the time alleged that the men were planning to build a bomb to use somewhere in Europe; that there was correspondence indicating that this was an al Qaeda-related group; and that the men had trained at a camp in Waziristan, Pakistan. It appears that Germany had charged him only with membership in a terrorist organization, however. Der Spiegel provides much more information about his al Qaeda links, in a story near the time of his original arrest, here.

A grand jury in Brooklyn has now indicted El-Kabir. The indictment, here, is very brief. The first count is a material support conspiracy charge under 18 USC 2339B, and the second count is conspiracy to carry a destructive device or firearm in connection with a crime of violence (that crime being the one alleged in the first count).

Extradition proceedings will follow, though it is interesting to ponder whether and why Germany would send him here rather than prosecute him itself.

nationalsecuritylaw upcoming event: “Barriers and Innovations in Civil Rights Litigation Since 9/11” (UT, Feb. 3, 2012)

November 11, 2011

Save the Date_hyperlink.pdf

nationalsecuritylaw Call for papers on the ICC

November 9, 2011

* Call for papers

The New England Journal of International and Comparative Law seeks papers concerning the ICC, in view of the upcoming 10th anniversary of the Rome Statute’s entry into force. All the details are in the attached pdf. Note that they are seeking short pieces, and the deadline for submissions is February 1st, 2012.

Call for Papers.pdf