nationalsecuritylaw a second batch of forthcoming scholarship

Kill-Lists and Accountability

Georgetown Law Journal, Volume 102 (forthcoming)

Gregory S. McNeal, Pepperdine University School of Law

This article is a comprehensive examination of the U.S. practice of targeted killings. It is based in part on field research, interviews, and previously unexamined government documents. The article fills a gap in the literature, which to date lacks sustained scholarly analysis of the accountability mechanisms associated with the targeted killing process. The article makes two major contributions: 1) it provides the first qualitative empirical accounting of the targeted killing process, beginning with the creation of kill-lists extending through the execution of targeted strikes; 2) it provides a robust analytical framework for assessing the accountability mechanisms associated with those processes.

The article begins by reporting the results of a case study that began with a review of hundreds of pages of military policy memoranda, disclosures of government policies through Freedom of Information Act (FOIA) requests by NGOs, filings in court documents, public statements by military and intelligence officials, and descriptive accounts reported by the press and depicted in non-fiction books. These findings were supplemented by observing and reviewing aspects of the official training for individuals involved in targeted killings and by conducting confidential interviews with members of the military, special operations, and intelligence community who are involved in the targeted killing process. These research techniques resulted in a richly detailed depiction of the targeted killing process, the first of its kind to appear in any single publication. After explaining how targeted killings are conducted, the article shifts from the descriptive to the normative, setting out an analytical framework drawn from the governance literature that assess accountability along two dimensions, creating four accountability mechanisms. After setting forth the analytical framework, it is applied to the targeted killing program. The article concludes with accountability reforms that could be implemented based on the specified framework.

"The Power to Kill or Capture Enemy Combatants"

European Journal of International Law, Vol. 24, 2013
NYU School of Law, Public Law Research Paper No. 13-02

RYAN GOODMAN, New York University School of Law
Email: ryan.goodman

During wartime a critical legal question involves the scope of authority to choose whether to kill or capture enemy combatants. An important view, expressed by many contemporary experts, maintains that a combatant can be subject to lethal force wherever the person is found — unless and until the individual offers to surrender. I argue that, in certain well-specified and narrow circumstances, the use of force should instead be governed by a least-restrictive-means analysis. That is, I contend that the modern law of armed conflict supports the following maxim: if enemy combatants can be put out of action by capturing them, they should not be injured; if they can be put out of action by injury, they should not be killed; and if they can be put out of action by light injury, grave injury should be avoided. The article shows how this maxim fits into the overall structure of the laws of war. It also shows how a parallel set of rules — on the definition of hors de combat — achieves many of the same effects. And it identifies plausible scenarios in which these rules would apply. Admittedly, there are all manner of caveats and conditions that will qualify the application of this maxim. However, the general formula — and its key components — should be understood to have a solid foundation in the structure, rules and practices of modern warfare. In sum, belligerents must comply with an important (albeit conditional) set of constraints in planning and conducting kill or capture operations against enemy fighters.

"Targeting and the Concept of Intent"

Cornell Legal Studies Research Paper

JENS DAVID OHLIN, Cornell Law School
Email: jens-ohlin

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively redefined what it means to “intentionally” target a civilian population. In particular, these accounts rely on the civil law notion of dolus eventualis, a mental state akin to common law recklessness that differs in at least one crucial respect: it classifies risk-taking behavior as a species of intent.

This problem represents a clash of legal cultures. International lawyers trained in civil law jurisdictions are nonplussed by this development, while the Anglo-American literature on targeting has all-but-ignored this conflict. But when told of these decisions, U.S. military lawyers view this “reinterpretation” of intent as conflating the principles of distinction and proportionality. If a military commander anticipates that attacking a building may result in civilian casualties, why bother analyzing whether the collateral damage is proportional? Under the dolus eventualis view, the commander is already guilty of violating the principle of distinction. The following Article voices skepticism about this vanguard application of dolus eventualis to the law of targeting, in particular by noting that dolus eventualis was excluded by the framers of the Rome Statute and was nowhere considered by negotiators of Additional Protocol I of the Geneva Convention. Finally and most importantly, a dolus eventualis-inspired law of targeting undermines the Doctrine of Double Effect, the principle of moral theology on which the collateral damage rule rests. At stake is nothing less than the moral and legal distinction between terrorists who deliberately kill civilians and lawful combatants who foresee collateral damage.

"Autonomy in the Battlespace: Independently Operating Weapon Systems and the Law of Armed Conflict"

International Humanitarian Law and the Changing Technology of War (2012)

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

The article analyzes the use of autonomous weapon systems (AWS) and the challenges that such systems pose with respect to compliance with the law of armed conflict. Importantly, AWS pose different questions than those surrounding the current use of unmanned aerial systems. For that reason, the article briefly sketches the history of AWS. It then distinguishes the current technologies, which operate either by way of remote control or through automated mechanisms, from systems which are currently under development and which operate either wholly autonomously or at least at a higher level of autonomy and without direct human input while carrying out their missions (II.).

Part III. provides a detailed analysis of AWS under the principle of distinction and the principle of proportionality. It argues that while AWS may be able to satisfy the former principle under certain conditions, it is not clear that the same is true for the latter. The critical challenges with respect to the principle of proportionality and its applicability for AWS is manifold. The principle is difficult to apply in the abstract and thus is difficult to "translate" into machine code in a manner that allows it to be applied to real-life situations and changing circumstances. This problem originates in the lack of a generally accepted definition of what exactly the principle of proportionality requires in each situation. The article therefore concludes that current technology is incapable of allowing AWS to be operated within the existing framework of the law of armed conflict. While there may well be situations in which these requirements are met, these situations include only a fraction of modern military operations and AWS do not provide additional benefits over existing weaponry for these situations. Part IV. provides concluding observations.

The 9/11 Military Commission Motion Hearings: An Ordinary Citizen Looks at Comparative Legitimacy

Benjamin Davis

University of Toledo College of Law
Southern Illinois University Law Review, Fall 2013

Under the Military Commission Act of 2009, since May 2012 the 9/11 Military Commission has been proceeding at Guantanamo Bay. As an ordinary citizen observer in October 2012 at a remote feed in Fort Meade, Maryland and in late January 2013 at Guantanamo Bay, the author has followed the 9/11 military commission motion hearings. Numerous dualities became readily apparent: such as, Guantanamo Bay as tropical paradise and an unseen tropical detention hell; the impact of unseen detention and interrogation “offscreen” on the courtroom process “onscreen;” the virtual presence of offscreen classification authorities in the courtroom and the judge’s control; the flexible law space of a military commission act built to stand alone and its amenability to diverse interpretations with other federal law and practice (Article III courts and courts-martial); the operability/inoperability and applicability/inapplicability of the Constitution; the defendants and the families of 2976 victims; military honor and duty and the intelligence community; legitimate and illegitimate government secrets and the citizen’s right to the truth; the domestic observer and the international observer; a domestic law vision and an international law vision. All of these dualities (and others that become apparent as one processes the experience) flow together to make Guantanamo Bay more than a place but an idea. After grappling with the legitimacy of the Guantanamo Bay idea, the author suggests one ordinary citizen’s view of what should be our next choices on adjudication, torture, indefinite detention, and accountability.

Targeted Killing: When Proportionality Gets All Out of Proportion

Amos N. Guiora

University of Utah – S.J. Quinney College of Law
University of Utah College of Law Research Paper No. 1

Targeted killing sits at the intersection of law, morality, strategy, and policy. For the very reasons that lawful and effective targeted killing enables the state to engage in its core function of self-defense and defense of its nationals, I am a proponent of targeted killing. However, my support for targeted killing is conditioned upon it being subject to rigorous standards, criteria, and guidelines. At present, new conceptions of threat and new technological capabilities are drastically affecting the implementation of targeted killing and the application of core legal and moral principles. High-level decision makers have begun to seemingly place a disproportionate level of importance on tactical and strategic gain over respect for a narrow definition of criteria-based legal and moral framework. Nonetheless, an effective targeted killing provides the state with significant advantages in the context of counterterrorism. Rather than relying on the executive branch making decisions in a “closed world” devoid of oversight and review, the intelligence information justifying the proposed action must be submitted to a court that would ascertain the information’s admissibility. The process of preparing and submitting available intelligence information to a court would significantly contribute to minimizing operational error that otherwise would occur.

Comparing Three Wrongs of Global Concern: Terrorism, Trafficking, and Piracy

Wayne McCormack

Thode Professor of Law

University of Utah

Terrorism, slavery, and piracy may be linked in a number of ways. Terrorist tactics can be used to enslave a population, and enslaved populations can be trained in the ways of terrorism. In the modern world, human trafficking may provide both funds and camouflage for terrorist organizations. Both are linked in organized crime along with drug trafficking and piracy. It was not until 2003 that a treaty committed most nations of the world to taking effective steps to stamp out trade in humans, placing a special emphasis on children and women. Despite universal revulsion toward slavery, there are many forms of forced labor still in practice, and international law retains some definitional issues to be resolved. Similarly, terrorism is now subject to almost universal condemnation but has a number of definitional problems and virtually no transnational enforcement mechanisms. This article uses both U.S. experience with racial terrorism and the growing body of international criminal law to propose an international body of criminal law to fill some of the remaining gaps. The international experience with piracy provides a model for comparison that shows how effective militarily-aided law enforcement can be when the commercial sector exerts sufficient pressure.


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