Detention and Interrogation in the LA Times, and a Targeted Killing Conference at Penn

by Kenneth Anderson

The LA Times has a good story on the complete backing away of the CIA from any new detentions or interrogations in counterterrorism under the Obama administration (though it started back under the Bush administration).  It describes a general paralysis of policy, frozen among a variety of government actors wary of doing anything that might restart the detention wars of the Bush administration.  It’s a well reported piece by Ken Delanian, April 10, 2011.

The U.S. has made no move to interrogate or seek custody of Indonesian militant Umar Patek since he was apprehended this year by officials in Pakistan with the help of a CIA tip, U.S. and Pakistani officials say.

The little-known case highlights a sharp difference between President Obama’s counter-terrorism policy and that of his predecessor, George W. Bush. Under Obama, the CIA has killed more people than it has captured, mainly through drone missile strikes in Pakistan’s tribal areas. At the same time, it has stopped trying to detain or interrogate suspects caught abroad, except those captured in Iraq and Afghanistan.

“The CIA is out of the detention and interrogation business,” said a U.S. official who is familiar with intelligence operations but was not authorized to speak publicly.

The article goes on to discuss the policy paralysis underlying this condition.  But I want to add one caution.  The article says, and it has been said many times in recent years, that the lack of a detention regime gives incentives to favor targeted killing.

Despite having made exactly this point myself many times, however, it bears noting that there are plenty of independent reasons for using targeted killings in many situations — avoiding detention is almost certainly far less important than the current meme suggests.  Even if there were some protocol for detaining and interrogating people, there are plenty of circumstances in which seeking to capture is too risky and other operational reasons.  Put another way, it’s not as though people are sitting around the government all day saying, hey, here’s a terrorist, we can’t really capture him, so let’s kill him!  Some level of background incentive is there, no doubt, but it’s background to a much more complicated decision-making foreground.

More interesting is that the article’s main focus is on a person captured by Indonesia from a CIA tip, not targeted with a missile.  Even in that case, in which it is not a choice between targeted killing and detention, the CIA still does not want custody, even though the article says that experts believe that the CIA could get far more and better information if it controlled the detention and interrogation process.  This is far from an ideal situation, of course.

While on the topic of targeted killing and drone warfare, let me point readers to a conference at University of Pennsylvania Law School this weekend, a joint effort among lawyers, philosophers, diplomats, and national security and military personnel.  It’s an impressive lineup – including Deborah Pearlstein and John Dehn – and you can even get CLE credit, I believe.  (I’ve put the announcement below the fold.)

I’ll be talking at the Penn conference about an ethical tension between jus in bello and jus ad bellum.  Targeted killing through drones results (I will take by assumption) in less civilian damage in the category of jus in bello.  According to a common argument made today, however, that greater “efficiency” in jus in bello considerations thereby makes resort to force by the United States too easy, as a jus ad bellum matter, and indeed possibly “inefficient.”  Why?  According to this argument, the lack of personal risk to US personnel in drone warfare lowers to an inefficient level the disincentives upon the US to use force.

I have many problems with this argument. But I do think it’s an interesting one from a philosophical perspective, because even if the jus in bello and jus ad bellum considerations are not strictly inconsistent, there is at least substantial tension between them.  Moreover, the ideas of “efficiency jus in bello” and “efficiency jus ad bellum” are interesting all on their own, even if I think that particularly the idea of an efficient level of violence, or an efficient level of incentives and disincentives to resort to force, premised around personal risk to US personnel, is deeply incoherent.  But the incoherency seems to me to take part in an even deeper, and still more wrong, idea that an “efficient level of resort to force” can be extracted independent of the idea of “sides” in war with incommensurate ends.

I’m not a philosopher, though, and find all this philosophy stuff difficult.  So I have been careful to load up my remarks with a lot of practical stuff about where, on the basis of my conversations, reading, discussions, etc., with lots of different folks, both targeted killing and drone warfare are likely to go.  Since those are just my perceptions of where the technology, practices, and policies are going, there’s plenty to dispute.  The conference has a great lineup of experts from many fields, however — so even if my remarks are a big miss, in good conscience I can still highly recommend it to you.

Conference Schedule

THURSDAY, APRIL 14

4:30–6 pm | Gittis 213, Kushner Classroom

Reception to Follow

Title: Counter-Terror: The Model, the Reality

Featuring Dell Dailey, former Ambassador-at-Large and Coordinator for Counter-Terrorism, U.S. Department of State and Director, Center for Special Operations, U.S. Special Operations Command

Moderator: Claire Finkelstein

Commentator: Deborah Pearlstein, Visiting Faculty Fellow, University of Pennsylvania Law School

In recent years, we have come to appreciate that the United States faces real and profound terrorist threats from both domestic and international terrorists. But what happens when military and civilian leaders become aware of an imminent threat? What national and international tools are available to the U.S. government to identify and prevent a terrorist act from taking place? How do American laws and policies intersect with international law when a terror threat hits the radar in real time? Please join Ambassador Dell Dailey for a wide-ranging discussion that will look at cutting edge issues facing America’s counter-terrorism operations today. Ambassador Dailey will present the current counter terror model, discuss new or existing organizations to assist countering terror, and provide an updated assessment of Al Qaeda. A question and answer period will follow. This presentation is jointly sponsored by the Penn Law Office of International Programs, the Institute for Law and Philosophy and the Penn Law National Security Society. It is free and open to the public.

CONFERENCE SCHEDULE

FRIDAY APRIL 15

08:45 am Bus departs hotel

09:00 — 09:30 am Breakfast

09:30 — 11:00 am SESSION 1: The Problem of Targeted Killing

Moderator: Professor Claire Finkelstein

Colonel Max Maxwell, “Like Playing Whack-A-Mole Without a Mallet? Allowing the State to Rebut the Civilian Presumption”

Abstract (pdf) | Paper (pdf)

Professor Kenneth Anderson, “Targeted Killing, Drone Warfare, and the Chimera of Optimizing the Resort to Force”

Abstract (pdf) | Paper (pdf) [rough draft, to be updated soon]

Commentator: Professor Deborah Pearlstein

11:00 — 11:30 am Break

11:30 — 01:00 pm SESSION 2: Targeted Killings and the Rights of Non-Combatants

Moderator: Professor William Ewald

Professor Jens Ohlin, “Targeting Co-Belligerents”

Abstract (pdf) | Paper (pdf)

Professor Craig Martin, “Going Medieval: Targeted Killing, Armed Conflict, and Self-Defense”

Abstract (pdf) | Paper (pdf) [revised]

Commentator: Professor Alexander Greenawalt

01:00 — 02:00 pm Lunch

02:00 — 03:30 pm SESSION 3: Targeted Killing and its Political Implications

Moderator: Professor Stephen Morse

Professor Amos Guiora, “Targeted Killing: A Legal, Practical and Moral Analysis”

Abstract (pdf) | Paper (pdf)

Professor Fernando Tesón, “Is Targeted Killing Ever Justified?”

Abstract (pdf) | Paper (pdf)

Commentator: Professor Andrew Altman

03:30 — 04:00 pm Break

04:00 — 05:30 pm SESSION 4: Implementation of Targeted Killing in the Changing Landscape of Modern Warfare

Moderator: Professor John Dehn

Professor Gregory McNeal, “Collateral Damage and the Administrative Process of Targeted Killing”

Abstract (pdf) | Paper (pdf)

Professor Kevin Govern, “Guns for Hire – Death on Demand?”

Abstract (pdf) | Paper (pdf)

Commentator: Professor Jean Galbraith

05:30 — 06:30 pm Break. Return to hotel or take guided hike in Fairmount Park

06:30 pm Cocktails and Dinner at the home of Claire Finkelstein & Leo Katz.

Keynote address:

Ambassador Dell Dailey, “Targeted Killing — An Operators Perspective”

SATURDAY APRIL 16

08:45 am Bus departs hotel

09:00 — 09:30 am Breakfast

09:30 — 11:00 am SESSION 5: Targeted Killing under Military versus Criminal Law Paradigms

Moderator: Professor Matt Lister

Professor Claire Finkelstein, “Targeted Killing as Preemptive Action”

Abstract (pdf) | Paper (pdf)

Major Richard Meyer, “An Argument for Formalizing the Commencement of Hostilities”

Abstract (pdf)

Commentator: Professor Luis Chiesa

11:00 — 11:30 am Break

11:30 — 01:00 pm SESSION 6: Targeted Killing and Self-Defense

Moderator: Professor Michael Moore

Professor Russell Christopher, “Targeted Killing and the Imminence Requirement”

Abstract (pdf) | Paper (pdf)

Professor Phil Montague, “Defending Defensive Targeted Killings”

Abstract (pdf) | Paper (pdf)

Commentator: Professor Larry Alexander

01:00 — 02:30 pm Lunch

02:30 — 04:00 pm SESSION 7: The Boundaries of Consequentialist Calculation

Moderator: Professor Larry Alexander

Professor Peter Vallentyne, “Enforcement Rights against Non-Culpable Non-just Intrusion”

Abstract (pdf) | Paper (pdf)

Professor Leo Katz, “Targeted Killings and Cyclical Choices”

Abstract (pdf) | Paper (pdf)

Commentator: Doug Weck

04:00 — 04:30 pm Break

04:30 — 06:00 pm SESSION 8: The Normative Framework of Targeted Killing

Moderator: Professor Stephen Perry

Professor Jeremy Waldron, “Can Targeted Killing Work as a Neutral Principle?”

Abstract (pdf) | Paper (pdf)

Professor Jeff McMahan, “Targeted Killing in Morality and Law”

Abstract (pdf) | Paper (pdf)

Commentator: Professor Michael Moore

06:00 pm Cocktails and Dinner at Chestnut Hill Cricket Club

Keynote address:

Professor Michael Moore, “Ethics in Extremis: The Morality of Hard Choices”

Abstract (pdf) | Outline (pdf)

http://opiniojuris.org/2011/04/13/detention-and-interrogation-in-the-la-times-and-a-targeted-killing-conference-at-penn/

3 Responses

  1. The underlying assumption that US anti-terrorism efforts are negatively affected or degraded by CIA not detaining or interrogating individuals such as this one in these circumstances seems to me to both unsound as well as a lot of sound and fury over not much.  According to the article:  “U.S. officials say they expect the CIA will be given access to intelligence gleaned from Indonesia’s interrogations of Patek, and may even be allowed to sit in and provide guidance, given the close ties between U.S. and Indonesian counter-terrorism officials.

    But that is not the same as controlling the questioning, critics say. “Having access to someone in someone else’s custody is never the same as setting the conditions of their interrogation,” said a congressional aide who is briefed on intelligence issues but who was not authorized to speak publicly.”

    It may not be the same as controlling the questioning; but it may be better, for a host of reasons, to out source that effort, while still getting the intel, while sitting in and providing guidance to the questioners.

    Some of the guidance, conceivably, could even involve suggestions to refrain from torture.

  2. Alan! What a novel idea for a suggestion by the CIA! ”Refrain from torture!” Best, Ben  (I hope that the gentle joshing intended in that message came through.)

  3. I am not at all convinced that the lack, by the CIA, of a detention regime creates an incentive for targeted killings.  Detention and interrogation, accomplished with CIA support, but by others, may still create disincentives to targeted killings.  It might be useful to examine the degree to which the military is detaining people overseas in operations in Afghanistan…

    Regardless, see this link for a view on the question:  http://www.huffingtonpost.com/human-rights-first/the-truth-behind-us-inter_b_851044.html 

    The article claims that it author, “Joe Navarro spent 25 years working as an FBI special agent in the area of counterintelligence and behavioral assessment and is a founding member of the National Security Division’s Behavioral Analysis Program. Navarro authored the book that the FBI uses to train advanced interrogators. He is author of a number of books about interviewing techniques and practice including Advanced Interviewing, which he co-wrote with Jack Schafer, and Hunting Terrorists: A Look at the Psycopathology of Terror.”

    He states:
    “The CIA’s role in countering terrorism has never traditionally included detention and interrogation [though they have done some].  Instead, the CIA has typically focused on what it’s good at: clandestine intelligence gathering.
    It was only after 9/11 that the CIA began detaining and interrogating terrorism suspects.  At that time, the CIA had literally no detention and interrogation experience, so it hired contractors to reverse-engineer interrogation methods from the military’s Survival, Evasion, Resistance, and Escape (SERE) program-a program designed in part to prepare American soldiers to resist torture and other abusive interrogation methods if captured.  As a result, the CIA came up with an interrogation program that relied heavily on unlawful, secret detention at “black sites,” where terrorism suspects were tortured or subjected to cruel, inhuman, and degrading treatment.”

    “I was somewhat surprised to read the quotes from Republican lawmakers lamenting that high-value terrorism suspects like Umar Patek – who allegedly coordinated the 2002 bombings in Bali, Indonesia and is thought to have substantial intelligence on al Qaeda – could be turned over to foreign authorities.  Members of Congress should know that worries about terrorism suspects ending up in the hands of foreign governments are overblown.  The FBI, along with other departments and agencies within the United States government, has a long history of working with foreign security officials to interrogate and facilitate the transfer of terrorism suspects to the United States for prosecution, when appropriate. “

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