The Last Word (for now) on Targeted Killings: Rona Responds to Lewis

by Gabor Rona

[Gabor Rona is the International Legal Director for Human Rights First and he is responding to a post by Michael W. Lewis]

OK, let’s forget about drones for a sec. After all, drones are simply a form of targeting. And targeting in war is a good thing. (Since killing is legal in war under certain circumstances, the alternative to targeted killing is indiscriminate killing, which is a war crime.)

Let’s look at existing US targeting policy. First, it is not at all clear that it is restricted to contexts of armed conflict. Exactly who is the US at war against in Yemen, in Somalia? And even if our various wars do extend to those countries, what exactly is the basis under IHL for killing people who we may label “terrorist,” “insurgent,” or the most popular “militant,” but who may not be members of an enemy armed force or who may not be civilians directly participating in hostilities in that armed conflict? None.

To understand how we got here, remember that the Bush administration thought it necessary to create a previously non-existent category of people in order to DETAIN them outside the protections of the Geneva Conventions. No longer did we have the categories recognized n IHL, combatant and civilian, but instead, we now had “unlawful enemy combatant.” (And to those who cite Quirin, which uses the term, I respond that the case was about PRIVILEGED BELLIGERENTS – members of the German armed forces – whose CONDUCT was in violation of the laws of war. Not about unprivileged belligerents and not about the recognition of a new STATUS.) The Obama administration famously retired the term “unlawful combatant,” replacing it with “unprivileged enemy belligerent,” but is less apt to tout that the definition and consequences of the two designations remain essentially the same.

So what? Well, after the US manufactured a new status and a name, “unlawful enemy combatant,” for the purpose of justifying detention in violation of the Geneva Conventions, the notion began to take hold that if you meet the criteria for detention, you also meet the criteria for…

Michael Lewis’ Response to Gabor Rona on Targeted Killing

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

I want to thank Gabor for continuing a discussion started over on Lawfare a couple of weeks ago and to thank Opinio Juris for allowing me an opportunity to respond.  As I had the last word on Lawfare I believe Gabor will be given the final word here.

Gabor is correct that drones themselves are “stupid” in that they do not make any targeting decisions themselves.  Should that ever change it will fundamentally alter how IHL regulates the use of such weapons.  But we are a long way from having “untethered” drones loosed on the battlefield and I have found no appetite for such a development amongst operational military commanders.

However this “stupidity” does not change the fact that, as a weapons system, drones are capable of more accurately discriminating between civilians and legitimately targetable individuals than any other weapons system we currently possess.  This is because drones allow for a dispassionate assessment of each weapon employment by both senior military commanders and trained legal officers before the shot is taken.  No other weapons system (special forces, artillery, manned aircraft, regular ground troops) currently available allows senior commanders and legal officers such access to individual weapons employment decisions.

While Gabor seems to agree that drones as a weapons system possess this ability to distinguish between civilians and legitimate targets, he concludes that the military will be disinclined to take advantage of that capability.  Curiously he concludes that…

Gabor Rona on Targeted Killing: A Response to Michael Lewis

by Gabor Rona

[Gabor Rona is the International Legal Director of Human Rights First]

Over at Lawfare,  Mark Mazetti’s New York Times Magazine article “The Drone Zone” generated a rich discussion on targeted killing with entries by Ken AndersonGeoff CornmeCharles DunlapLaurie Blank, and Michael Lewis. Mike took particular aim at my comments and I’m grateful to Opinio Juris for giving me the opportunity to reply.

Mike says drones are good for civilians since they are the most discriminating weapon in the history of warfare. Actually, drones are, thankfully, stupid. They don’t, as of yet, make targeting decisions. Humans do. And Mike is right that those humans might exercise greater restraint than an “in theater” pilot whose life is at risk. But that addresses only the lesser of two factors influencing civilian casualties: mistaken determinations of targetability under pressure of attack, resulting in collateral damage.

The more significant factor that Mike does not mention is the pre-meditated determination, also made by humans, of who is targetable. This determination is not made merely by “drone pilots.” The other, arguably more influential, humans who Mike does not mention and who are also not at personal, physical risk are the politicians and military leaders who define and implement the criteria for killing. Question: are these people more inclined to take greater liberties on targetability if their personal risk, or that of their constituency, is reduced to zero? I think the answer is obvious and threatens to undermine the calculus of IHL much more than the benefits of safe distance would serve to lessen civilian casualties.

I think Mike also misses an important point in suggesting…

The Boundaries of the Battlefield

by Michael W. Lewis

A busy week of grading prevented me from addressing Ken’s May 6 post on battlefield geography along with the May 6 news that the US conducted a drone attack in Yemen any sooner, but there should be an important take away on the boundaries of the battlefield from the bin Laden operation.

An often heard complaint about the US conduct of the “war on terror” is that it treats “the whole world as a battlefield.” Many contend that such a conception of the battlefield, particularly in the context of a NIAC, violates international law. Mary Ellen O’Connell is perhaps most readily identified with the position that if the NIAC threshold is not met within the geographical boundaries of a specific state then the use of the tools of armed conflict on that state’s territory is impermissible, even with that state’s permission. However many others have taken similar positions with regard to the Aulaqi case or other possible uses of US force outside of Afghanistan (see e.g. my January debate with Ben Wizner of the ACLU on the Aulaqi case).

In analyzing the bin Laden operation Kevin expressed his belief that there is currently a NIAC between the US and “original” al Qaeda, a group to which bin Laden clearly belonged. Although there is not sufficient violence taking place within Pakistan to say that there is currently a NIAC occurring on Pakistani territory, that fact did not prohibit the use of armed force in Pakistan when a participant in the NIAC between the US and al Qaeda could be found there. Likewise, if bin Laden were in Yemen, the same outcome would have been reached, the tools of armed conflict could be employed against bin Laden in Yemen (under certain circumstances) because he was a participant in the NIAC with the US.

The normative reason for this conclusion is that any other reading of IHL with respect to the boundaries of the battlefield would essentially turn IHL on its head. One of IHL’s principal goals is to spare the civilian population and members of the military that are hors de combat from the ravages of warfare. To this end it insists on proportionality and military necessity for all attacks, it requires the acceptance of surrender, it ties the availability of the combatants’ privilege to organizational respect for IHL, and it removes civilian immunity from those participating in an armed conflict either temporarily for such time as they directly participate in hostilities (DPH) or more permanently for those who continuously perform a combat function (CCF). Members of al Qaeda are targetable when they are engaged in attacks (DPH), and leadership (like bin Laden) that is consistently engaged in the planning and direction of operations is targetable at all times (CCF). IHL rewards organizations that enforce the laws of war by allowing members of those orgainzations the combatants’ privilege. IHL discourages terrorist organizations like al Qaeda that target civilians and blend in with the civilian population (thereby placing them at greater risk) by denying them the combatants’ privilege and removing civilian immunity from its members.

However, if IHL is read to prohibit the use of the tools of armed conflict outside of certain geographically defined areas it would be conferring a tremendous strategic advantage upon these same terrorist organizations that it disfavors. By limiting the use of the tools of armed conflict to territory on which the threshold of violence for a NIAC is currently occurring, IHL would effectively create sanctuaries for terrorist organizations in any state in which law enforcement is known to be ineffective (like Yemen, Somalia, Sudan and the FATA area of Pakistan). This reading of IHL would thereby cede the initiative in the NIAC between a state actor that abides by IHL and a non-state terrorist organization (which IHL disfavors in every other way because of its conduct during an armed conflict) to the terrorist organization. The disfavored terrorist organization would get to decide when, where and how the war is to be fought because they would be immune from targeting based purely on geography. That cannot be how IHL should be read when considering the boundaries of the battlefield.

This does not mean that IHL does not offer a number of other challenges to strikes in Yemen or elsewhere. Has the NIAC threshold been met just for al Qaeda, or are other organizations such as AQAP properly part of that NIAC? Do the strikes comport with military necessity and proportionality? What sort of positive identification procedures are required before such strikes take place? Is some form of independent post-strike review required? Is host state permission required? If not, (in the self-defense paradigm) has the host state shown itself to be unwilling and/or unable to apprehend the targeted individuals? What is the standard that should be used to make the unwilling/unable determination? All of these are legitimate questions that may call into question some, most or all of the US’ drone strikes outside of Afghanistan (depending upon how you choose to answer them).

But the question of whether IHL provides a geographically-based immunity for participants in a NIAC should be answered in the negative once and for all.

Killing Bin Laden (and Sovereignty?): How Not to Argue Legal Basis for Killing OBL

by Chris Borgen

Parag Khanna of the New America Foundation has an essay at which gave me cognitive whiplash. He tries to set out an argument that the killing of Bin Laden signifies an important evolution in the rule of law. Khanna, however, seems to like the idea of the rule of law without actually wanting to deal with the details of legal rules.

Khanna starts by arguing that

the narrative of the [killing of Bin Laden] must be dramatically shifted away from rhetorical overtones about a “war of ideas” or “struggle for soul of Islam” towards a more neutral and universal appeal to a global rule of law.

But then what Khanna does with the idea of the “rule of law” makes my head snap back. As he sees it, the legal significance of the killing is in part because it was Americans acting in Pakistan:

That it was American counterterrorism operatives who conducted the assassination on the sovereign soil of a foreign country is an even more important marker. Many see the assassination of rogue individuals as a violation of sovereign immunity and even “playing God,” a right that no nation can arrogate to itself. This is false. It is a powerful symbol of our collective evolution that individual perpetrators are targeted for their crimes rather than entire societies punished in wars.

He then criticizes international law for being too, well, legalistic and saying that what is important about the killing is that it wipes away some old notions of sovereignty:

Over the past decade, international law has evolved in such a way as to justify such direct interventions, if only we could act more quickly on the thicket of protocols and deliberations we have invented. The International Criminal Court which oversaw the trial of Serbian war criminal Slobodan Milosevic, has indicted sitting heads of state such as Omar Bashir of Sudan. The Responsibility to Protect (R2P) doctrine, ratified in 2005 by the United Nations General Assembly in 2005, sets forth a process for determining whether the international community can be obligated to intervene to prevent crimes against humanity.

The core principle behind these institutions and treaties is that sovereignty is a responsibility, not a privilege. This applies not only to dictators and terrorist fugitives, but to the governments that give them safe harbor.

Let’s set aside for the moment that R2P is anything but settled in terms of either process or content and that General Assembly resolutions are not binding. A bigger problem is trying to tie together the killing of Bin Laden, the ICTY (not the ICC), and the NATO bombing in Kosovo in a single normative package. This brings together examples with more disparities than commonalities.

And when it comes to applying legal principles, details and distinctions matter. Consider this statement:

The arguments against political assassinations hinge on an overly legalistic commitment to sovereignty and a misplaced fear of retribution. It is precisely the accretion of a body of international humanitarian law that justifies interventions from Kosovo to East Timor and assassinations of figures like Osama bin Laden.

That sounds like the work of someone looking for a “big think” tagline and misunderstanding the law regarding assassination and targeted killing along the way. Lawyers try not to overturn old paradigms when current rules are perfectly adequate. In this case, Khanna was just looking at the wrong rules. I much prefer Jordan Paust’s  argument, set out in a brief comment to the post in this link (and at greater length in this article):

As international law experts, we should recall that the killing of bin Laden was permissible under Article 51 of the U.N. Charter, which allows the U.S. to target the leader of al Qaeda in self-defense in response to ongoing armed attacks on U.S. military personnel and other nationals in Afghanistan across the porous border areas with Pakistan. The U.S. does not need the consent of Pakistan in order to engage in self-defense actions against those in charge of attacking U.S. nationals, but apparently had consent in this instance. This was not simplistically a “law enforcement” operation, but a self-defense and law of war operation, especially since the de facto theater of war has migrated to parts of Pakistan and to the very spot where bin Laden had been directing attacks through his couriers.

Greg Mc Neal points to a similar argument made by John Bellinger, with the added point of Pakistani consent.

No need to proclaim the end of sovereignty or the rise of some new paradigm. Just mind the details and do the legal analysis.

That’s more than enough.

Judge Bates Dismisses Al-Aulaqi Case

by Kenneth Anderson

Presswires are reporting that Judge John Bates has dismissed the much-noticed case in which the ACLU and the Center for Constitutional Rights sought to bring suit on behalf of Anwar Al-Aulaqi’s father, contesting the ability of the President to target his son, an American citizen hiding abroad in Yemen who the government says is a targetable participant in a terrorist group covered by the AUMF.  The opinion is here. The news story points to standing problems for the father.  Says the AP:

U.S. District Judge John Bates said in a written opinion Tuesday that al-Awlaki’s father does not have the authority to sue on his son’s behalf. But he says the case raises serious issues about whether the United States can plan to kill one of its own citizens.

Quick update:  On a fast read of the opinion — well, anyone interested in these questions needs to read it post haste.  Far from merely being a narrow discussion of standing, it goes on to discuss the political question doctrine in great detail, and concluding on this point:

…this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, see El– Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens. While it may be true that “the political question doctrine wanes” where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. [p. 77 opinion, emphasis added]

But opinion contains much, much more.  A very interesting discussion of why the Alien Tort Statute does not offer an avenue; state secrets doctrine; there is a lot of stuff here.  More when I’ve read it more closely.  It is an impressive work in judicial opinion-crafting, regardless of what one thinks of the outcome.

Update:  Larkin Reynolds at Lawfare offers a bunch of snippets from the opinion; also at Lawfare, Bobby Chesney offers an objective outline, sans commentary, of the quite long opinion, and Jack Goldsmith and Ben Wittes weigh in with commentary.  I was puzzled, frankly, at the coverage in both the Post and the Times this morning; Charlie Savage, for example, seemed to think that the language I quoted above was what Judge Bates rejected, if I understood his writeup correctly.  Rather, this is what he found, albeit in a collateral and perhaps purely dicta way, given that he did not need to reach this once he had dismissed on standing grounds.  The best one might say for plaintiffs here is that he confined himself to narrow facts, even while concluding that the executive’s decision was unreviewable.

Basically, I agree with Ben’s five points at Lawfare, and agree with him that the ruling is likely bullet-proof on appeal. The one point I’d add to Ben’s discussion is that it seems to me that Judge Bates’ motivation was to provide at least the beginning of clear institutional settlement on a crucial aspect of the executive’s national security prerogatives, even if it was arguably “mere” dicta.

I’d also note in passing that this holding illustrates in a backhanded way one of the aspects of the Alien Tort Statute that I find troubling, at least as applied to conduct outside the territorial United States.  Viz., it confers special rights  upon aliens that are not available to US citizens – including, in this case, a citizen named Al-Aulaqi.  His alien father can at least begin to bring a claim that the citizen son cannot, because he is, well, not an alien.  This makes sense to me in one context only, viz., when the conduct occurs in the territorial United States, and the alien present in the US might suffer at the hands of state courts or US citizens, who themselves have ample avenues open to them; it levels the playing field.  Abroad, arguably, it gives aliens something that US citizens don’t have.

China’s Drone Production

by Kenneth Anderson

China has been moving to catch up with the US and Israel in production of military UAV drones, reports the Wall Street Journal today, in an article by Jeremy Page (Friday, Nov. 19, 2010, A11).   The article says that the uptick in drone output has surprised the West:

Western defense officials and experts were surprised to see more than 25 different Chinese models of the unmanned aircraft, known as UAVs, on display at this week’s Zhuhai air show in this southern Chinese city. It was a record number for a country that unveiled its first concept UAVs at the same air show only four years ago, and put a handful on display at the last one in 2008.  The apparent progress in UAVs is a stark sign of China’s ambition to upgrade its massive military as its global political and economic clout grows.

I don’t think Western experts should have been all that surprised, at least looking to the long term.  As has been noted repeatedly here at OJ, drones are not some fantastically advanced technology, beyond the reach of all but DARPA.  On the contrary, the avionics and flight control mechanisms have been around for a long time, with tweaks to the basic concept of remote controlled flight provided by advanced in communications and computers.  Sometimes journalists and others make dire predictions about the US or Israel having set off an “arms race” over drone deployments – the US and Israel, then China and Russia, then India and Pakistan …. but this misses the point.  Drones will spread because they will take over significant parts of civil aviation in coming decades, no matter what, and that will be so in any industrialized economy.  The technology is widely available and represents a vast cost savings – military aviation has many additional reasons why drones are useful, but this is part of a broader wave for all aviation.

It is not really all that different from DARPA subsidizing research into self-driving vehicles.  This has obvious applications to urban warfighting, which is why DARPA has funded it for years – but winning researchers from the DARPA competitions for self-driving vehicles have now moved over to work with Google, finally deploying self-driving vehicles on the streets of the Bay Area this year.  It’s not an arms race; it is the future of parts of vehicle automation for both civilian and military vehicles.

The real areas of technical competition in UAVs are not in avionics, nor in the weaponry – though improvements there will make them smaller and more discriminating as well – but in the sensors deployed on the drones.  Sensors are hard – even today, the drone sensors, as far as we know publicly, are still in the range of video.  There’s a lot of room for sophistication.  The Economist had a good article recently on both the difficulties and the gradual improvements in the abilities of robotic “eyes” to “see” things.  That’s the future technical competition in robotics, or at least an important part of it – much less so the avionics.  As for arms races, the true arms race in the military UAV world will not be a race to deploy – everyone who wants UAVs will have them, in various sizes.  The race that matters will be the technological counters to drones – the counter-technologies that will bring them down out of the sky.  That, we have yet to see deployed, but it will arrive very soon.

The Mary Ellen O’Connell and Benjamin Wittes Debate on Targeted Killing and Drone Warfare

by Kenneth Anderson

Interest in targeted killing and drone warfare is not letting up in intensity to judge by the pace of events on the topic. Right on top of my debate with Mary Ellen O’Connell on this at Washington University two weeks ago, Mary Ellen and Ben Wittes undertook another one, this past Saturday at International Law Weekend in New York.  It was considerably more testy than the Washington University debate.  Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate.  I’m sure it will generate a lot of interest and a lot of pushback in several directions.  Ben has posted up video of the event at Lawfare.

Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen’s statements at what they say, Barack Obama is not therefore a “serial killer” for having directly ordered the CIA to carry out what Mary Ellen characterizes as “crimes” and Harold Koh at the least an aider and abetter.  Ben has in mind, for example, statements in Mary Ellen’s widely noticed article, “Unlawful Killing with Combat Drones,” which among other things declares that “members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime.”  One might argue Ben’s choice of provocative words in the debate – serial killing – or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well).  His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator.  Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law.  Crime is a charge of more than mere non-compliance.  If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you.

And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It’s not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental “crimes” for which corporations routinely pay criminal fines in the domestic United States.  Killing is not like that, presumably, at least not when it’s systematic, systemic, large-scale, and under direct orders.

The article by Mary Ellen specifically says who commits a crime – members of the CIA.  Yet they are not acting as rogues in this, but rather under direct orders of the President.  If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes.  So what is it to be?  I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both.  I take it that was Ben’s larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing. (more…)

Self-Defense and Non-International Armed Conflict in Drone Warfare

by Kenneth Anderson

Over the past year, I’ve been spending much time on the questions of drone warfare and the legal issues raised – many talks, panel discussions, debates, and so on.  In the course of those discussions, as well as discussions with many experts one-on-one, I’ve wanted both to clarify a couple of my views and acknowledge a change in how I would currently characterize some of what we might call the “legal geography” of armed conflict.

So, I have been strongly identified with, and have been robustly urging, that one possible ground justifying the use of drone warfare and targeted killing, as well as setting rules for its conduct, is the international law of self defense.  I maintain, and certainly continue to maintain, that there are circumstances in which the use of targeted killing can and as a proper legal description should be understood to be the use of force as a lawful act of self defense even though it takes place outside of an armed conflict, and even though that use itself does not create an armed conflict.  It seems to me, before as now, crucial to be clear of the existence of this category of the use of force as a lawful possibility for the United States, particularly looking down the road to conditions and situations that do not implicate the current struggle with Al Qaeda, has nothing to do with 9/11, is not covered by the AUMF – a new terrorist group with different terrorist aims, for example, emerging in Latin America or somewhere in Asia twenty-five years from now, and having no connection to any of today’s issues.

I have suggested that this is an appropriate way of characterizing the legal status of attacks carried out by the US in Yemen or Somalia, or elsewhere that terrorists might go in seeking safe haven, or by new groups emerging that increasingly are not directly linked to AQ even if they take inspiration and aims from it.  I have queried at what point jihadist groups threatening the US become only “notionally Al Qaeda” and part of our existing legal framework of a non-international armed conflict only in theory, increasingly remote from the reality.  Territory or legal geography of conflict matters in that, not because the armed conflict is inherently bound to a territory or geography, but instead because the group at issue is only tenuously connected to the group initially defined as part of the armed conflict – partly under domestic law considerations and partly under international law considerations.  The non-international armed conflict goes where the participants go; and likewise if new groups engage in co-belligerent action, then they become part of the armed conflict.  But it has seemed to me in the past several years that some of these groups are in other places and not obviously connected, except by a forced abstraction, to the groups under the AUMF.

I still think that is a perfectly good way to see the use of force.  The new groups present a threat; they present a threat in a place where the armed conflict is not actually underway with respect to them; the US targets them as self-defense in the absence of an armed conflict.  Alternatively, however, if you think either that the people you are targeting are part of the armed conflict to start with because they are linked sufficiently to AQ and the authors of 9/11, or even more directly because they are AQ or affiliates fleeing Pakistan or Afghanistan in search of new safe havens, then the case for viewing this as simply the continuation of the existing non-international armed conflict is also highly plausible.<!–more–>

I view these rationales as permissive, rather than a forced choice between them, and think that each is a perfectly plausible and justifiable way of looking at current actions in Yemen or Somalia.  With regards to Pakistan, insofar as those being targeted are as part of the counterterrorism campaign, that seems to me unremarkably part of the on-going armed conflict, albeit one that has broadened out to include Pakistan Taliban and various terrorist groups in Pakistan that have allied themselves with AQ.  The point, however, is that the question of whether the proper framework for legal analysis is armed conflict or self-defense begins not from geography but instead from the identity of whom you fight; if it is a genuinely unrelated group and, even more plainly as a hypothetical, a genuinely unrelated issue – a new form of transnational Maoism in the Andes, say – then the question of legal geography comes into play to ask whether hostilities of sufficient intensity, etc., suffice to evidence a non-international armed conflict.

This is a change in emphasis for me, and in part a shift in view; in the past I have emphasized far more the geography as to where hostilities are underway, but I am persuaded that the correct analytic frame is to ask “who” and then whether, “where” the fighting takes place, the threshold of sufficient hostilities has been met for a non-international armed conflict not already underway.  But this is in the context of understanding that, in places such as Yemen, it seems to me the facts can be plausibly understood to fit either view.  Indeed, an important shift in my view concerning Yemen in particular is that as we understand better the relationships between Al Qaeda in the Arabian Peninsula and other groups in Yemen and AQ proper, the facts increasingly suggest that both in the past and even more strongly today, the best – and not merely a decently plausible – characterization is to understand them as part of the non-international armed conflict.  It seems to me that there are good legal grounds to understand Somalia and Yemen as attacks as individual acts of self-defense, but as I read the Woodward book and what John Brennan in particular says about the movement of AQ operatives into those new safe havens, and talk with well-informed reporters, those factual descriptions are persuading me that the better of the two views today is to see attacks there as part of the on-going non-international armed conflict.  That would include the targeting al Al Aulaqi.

I also understand that the Obama administration has reasons grounded in domestic law for preferring to see the best international legal frame as non-international armed conflict in Yemen or Somalia.  This arises from its view that for domestic law purposes, the terms of the conflict are set by the AUMF, and not the discretionary scope of the executive.  I think this is perfectly plausible as an international law rationale – either seems to me available to it – and in any case, my reading of the facts on the ground in those places suggest that the administration is not simply making a “notional” argument by any means for how it sees attacks in Yemen or Somalia.  The Obama administration is on sound grounds, in my view, in saying that the non-international armed conflict goes where those who participate go, and extends to groups that co-participate with them.  But that is a shift in my read of the facts from two years ago, and it is also a shift in emphasis as to taking geography into account.

As one government lawyer put it to me, the administration’s view is that, yes, it does have independent grounds for self-defense, exactly as Harold Koh said, and in an appropriate circumstance will invoke it nakedly, without recourse to an armed conflict.  But it also holds the view that once parties initiated a non-international armed conflict, and met the thresholds of intensity and all that, the same non-international armed conflict goes where they go, irrespective of geography.  As he immediately added, with notable weariness, this does not mean Predators over Paris, whether France or Texas; Yemen is not France.  Territorial integrity is an important, vitally important principle of international law – but it can be overcome where a state either cannot or will not control its territory – which is to say, assert the lawful sovereignty over territory for which it has both a privilege but an obligation.  “No safe havens” has also been a bedrock qualification on territorial integrity of states, as a matter of self defense and evidenced by consistent state practice.

At this moment, strategically, safe havens for both AQ and the Taliban in Pakistan are at the center of the storm, because they represent the intersection of Petraeus’s counter-insurgency strategy as well as what Woodward terms the Biden “counterterrorism-plus” strategy of attacking the safe havens in Pakistan as the locus of the terrorist groups; there is convergence on attacking the safe havens from every strategic view, combined with a view that the real source of the threat is not just <em>in</em> Pakistan, for leading players in the adminstration’s strategic team, it <em>is</em> Pakistan, far more than Afghanistan.  And finally, if one adds to this the John Brennan view, the safe havens already have largely shifted to Yemen and Somalia and will continue to shift into other places in Africa.  If that is the Obama administration’s strategic lens in a nutshell, then the traditional and consistently held US view that safe havens are not immune from attack will not remotely be up for discussion, whether on an armed conflict view or an independent self-defense view of targeted killing and drone strikes.

I am (still) completing a new essay on the operational roles of drones, a roster of strategic uses, one that leaves aside the legal issues in favor of trying to get an analytic handle on the increasingly variegated uses of drones and targeted killing.  It seems to me important for legal analysis because the variations are sufficiently great at this stage that different uses suggest different legal frameworks – some are involved in armed conflict, for example, and some might not be.  But as the argument over the use of drones in Afghanistan, Pakistan, Yemen, and beyond intensifies, I thought it would be worth taking a moment both to clarify and advance my own baseline legal position.  Thus:

Although asserting the framework of self defense, and elaborating its constraints based in necessity, discrimination, and proportionality is crucial, because not all uses of force by the United States will always and forever be instances of armed conflict, it does seem to me plausible and – given the current understanding of facts on the ground in Yemen and Somalia – the best understanding of who is being targeted to regard those uses of force as part of the on-going non-international armed conflict.

(Added:  Thanks to the comments below.  Two quick thoughts.  First, with respect to Alan’s comment on assassination, my understanding of the legal meaning of the assassination ban at this point, as a descriptive legal matter, is that it is indeed only the restatement of the illegality of something that was already illegal; Koh’s speech restates Sofaer’s 1989 statement that the ban applies to acts that would already be illegal.  Hence it does not add a new category of previously illegal things, and in that sense says that the original executive order was hortatory or a restatement of existing US law and policy.  I understood Koh to be reaffirming precisely that interpretation in his speech.  Second, to Nathan, no worries.  But I’d add that I don’t think my factual view of AQAP from two years is correct, on the basis of what has been publicly shown; I had been inclined as a matter of factual characterization to see it as “inspired” by but not coordinated with AQ in any substantial way, and that was, I believe, not actually the case, and not the case now in any event.)

More Targeted Killing …

by Kenneth Anderson

Re the Volokh post to which Kevin refers below. Fear not, I was not trying to withhold content from OJ readers, but it did seem to me that I was days late in arriving at the issue that Ben and Kevin had already been discussing, whereas my VC post went into a lot of other stuff that didn’t strike me as relevant to OJ readers.  Although we are pretty eclectic in our tastes here, as my personal drone post shows, I’ve sometimes had email complaints from readers wondering what the connection to international law is re some post of mine.  Am I wrong about that among our readers?  But anyway, my fundamental motivation in posting it to VC and then linking back to the OJ discussion was blog-strategic – drive some traffic over to OJ from Volokh.  I’m not trying to deprive OJ or its readers of my ‘invaluable’ thoughts.

Very quickly as to substance in one matter of Kevin’s response.  Kevin says I’m offering a caricature of Nils’ view on territoriality and armed conflict.  Maybe.  But what Kevin calls caricature, I’d say is a reasonable statement in a couple of paragraphs on a blog of the center of Nils’, and the ICRC’s, views.  That’s not a criticism.  There is a lot to be said for the view that armed conflict has geographical limits on it.  The ICRC, if I may summarize, or caricature, as you will, reached this view on the perfectly sensible and understandable grounds of its alarm over the Bush administration’s Global War on Terror claims.  I think that the GWOT reached too far – as I have said many places, in my view – once again, a summary or caricature, as you will – what the Bush administration sought was the tail of law wagging the dog of war, the ability to use the law of war anywhere in the world with or without actual hostilities.

The ICRC unsurprisingly became alarmed at this, and has – including through Nils’ work – moved to a largely geographically based view of armed conflict.  I understand and sympathize with the reasons, in part because I share them and in part because even where I don’t share the final conclusion and come to a different view, I do try to start with a sympathetic view to the argument and understand it on its own terms.  The sympathetic read of that argument is that the Bush administration wanted a global war in order to invoke the law of armed conflict anywhere, at any time, but without any connection to actual hostilities.  As I say, I reach a different view – different from the GWOT view or Nils’ view, but I think I am starting from a position of seeking to understand it.  And for that matter, one of the reasons I think I understand it as a “large” view in the law of war is that some of the senior ICRC staff deliberately reached out to me for exactly the same reason – they heard what Koh was saying, what I was saying, what different people were saying, and they were admirably trying very hard to understand the positions and how they differed from their own. (more…)

ACLU Sues Obama Administration Over Targeted Killings of U.S. Citizens

by Julian Ku

I’m a little late (in blogospheric time) to comment on the ACLU/CCR lawsuit today challenging the legality of the Obama Administration’s policy on targeted killings of U.S. citizens. (Hat Tip WSJ Law Blog) Here is the complaint. It’s is not surprising. As I noted before, the ACLU has been making noises about this lawsuit for several months. And, at least with respect to the targeted killings of U.S. citizens outside an armed conflict, they have a pretty decent argument.

To their credit, the ACLU/CCR is making the narrowest possible legal challenge to targeted killings.  They are challenging “the executive’s asserted authority to carry out ‘targeted killings’ of U.S. citizens suspected of terrorism far from any field of armed conflict.”  The challenge mainly rests on U.S. constitutional due process grounds and focuses only on the targeted killing of a U.S. citizen in Yemen, thereby sidestepping any confusion over the status of the war in Afghanistan or Pakistan.  The complaint also seems to concede that there might be circumstances where such a killing might be constitutional due to emergency circumstances or if the sufficient process was provided.  There is also a challenge based on international law and the Fourth Amendment, but I think the Due Process challenge is the strongest claim.

I am not an expert on declaratory injunctions, but I think that is going to be a problem, for reasons I can’t go into here in detail. I assume there will be a political question defense raised here, and I think declaratory injunctions are uniquely vulnerable to this type of defense. Second, although wisely styled as a rights-based challenge, there are lots of reasons to think the Obama Administration will point out it has broad authority from Congress to engage in this kind of targeted killing.  As a matter of domestic law, expect the Obama Administration to stand on pretty firm ground.

The main conceptual issue, though, is the problem of whether there really is an armed conflict outside of Afghanistan/Pakistan for the purposes of the war on terrorism.  If there isn’t, than presumably Congress’ authorization doesn’t extend to targeted killings to places like Yemen.  And the lack of an armed conflict would weaken the international legal foundation for targeted killings.

This has the potential to be a blockbuster lawsuit, forcing the centerpiece of the Obama Administration’s war on terrorism strategy to go under the legal microscope.  It could be a fascinating case, although I expect there to be innumerable procedural hurdles and delays before we get to any interesting parts of this case.

ACLU and CCR Sue OFAC over Expenditures Related to Al-Awlaki Lawsuits

by Kenneth Anderson

Adam Serwer has a post up flagging a new suit by the ACLU and the Center for Constitutional Rights (CCR) against the Treasury Department’s Office of Foreign Assets Control (OFAC) over funds expended over the question of whether the Obama administration can designate and then target Al-Awlaki as a terrorist hiding out presumably in Yemen.  (Adam tried to contact me to discuss it, but despite this post, I am really, truly out of touch.  In and out of the mountains, about to drive across the desert, and an iffy internet connection.  However, without having read anything at all besides Adam’s post, this is likely an important lawsuit.)  I, as I have remarked various times, see no problem with the US government targeting Al-Awlaki, US citizen or not.  I don’t have a problem with the refusal of OFAC to issue the required license for the expenditure of funds on someone the US government has designated as a terrorist under existing US law.  However, those are separate legal questions, and there are others besides, not least the recent Supreme Court decision approving, if my sun and altitude-addled recollection is correct – and it might not be – something pretty much like what OFAC just did.  (We’ve written on it here, but I don’t dare leave this page.)  But I leave it to everyone else to sort out; I just wanted to flag it to everyone’s attention, and kudos to Adam for being on top of it.

(Also, while I am thinking of it, Mary Ellen O’Connell and I have an “issues debate” – about 500 words each, pro and con format – on targeted killing and drones up at the Congressional Quarterly blog.  I’ll try to find a link later; not sure if it is public or not.)

(ps.  Thanks to Ben for his comment on my earlier Eastern Sierra post – just wanted to say that among other day hikes, we did indeed make it to Heart Lake.)

Update:  Politico is now reporting that OFAC will permit the license for the underlying lawsuit, on the fundamental targeting issues, to proceed, presumably mooting this suit. (Thanks to Mark Field.)