Guest Post: Obama Got it Right on Drones

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.] 

On drones there was not that much new from President Obama yesterday, but what he emphasized tells us something about where the debate on drones remains.  Echoing statements that have been previously made by a number of his advisers he challenged the continuing claims that drones are inaccurate, counterproductive and continue to cause increasing numbers of civilian casualties.  He also officially provided some new information on oversight and the approval process, although much of this information is found in Klaidman’s “Kill or Capture”.

Although there have been exchanges here at OJ as much as a year ago in which there seemed to be a consensus on all sides that drones were not causing disproportionate or excessive civilian casualties when compared to other tools of warfare, that issue still appears to be the primary criticism of drones.  You have to look no further than yesterday’s New York Times to see an editorial that claims that drones continue to cause increasing civilian casualties.

As a result it was important for Obama to outline the alternatives to the continued use of drones in places where the local government is unable or unwilling to counter a terror threat to the US.  As I pointed out in the LA Times in February the alternatives are special forces, manned aircraft strikes and cruise missiles, invasion or turning over the matter to law enforcement.  It is important to remember that “law enforcement” in these contexts is the Pakistani or the Yemeni Army.  In the past, attempts by the Pakistani Army to regain control of areas of FATA have been humanitarian disasters.  The Swat Valley campaign in 2009 displaced over a million civilians when the Pakistani Army used artillery, armor and airstrikes to go after ~5,000 Taliban/al Qaeda fighters.  Last year rumors of a new Pakistani Army offensive in Waziristan sent thousands of civilians fleeing the area even though no offensive took place.

The other options, night raids by special forces, manned aircraft or cruise missile strikes or a full scale invasion by ground troops, would all cause more displacement and disruption of the local civilian population than drones do.  It is important to emphasize, as Obama did yesterday, that…

Brennan’s Speech: A Response to Bobby Chesney

by Gabor Rona

[Gabor Rona is the International Legal Director of Human Rights First. He first posted his thoughts  here about Monday’s counterterrorism speech by John Brennan.]

I’m grateful to Bobby Chesney, over at Lawfare, for taking the time to react to my post on the recent Brennan speech. As with so many of the more thoughtful defenses of U.S. counterterrorism policy, Bobby relies heavily on analogies to non-analogous facts and law to support conclusions that existing facts and applicable law do not support.

For example, he uses (a U.S. interpretation of) armed conflict detention authority to determine the rather distinct question of who may be extrajudicially killed. The “broad range of judges” Bobby refers to “who, in the context of the Guantanamo habeas cases, have repeatedly construed the AUMF to encompass al Qaeda as a whole rather than just the small number of al Qaeda members personally involved in the 9/11 plot” were, indeed, deciding habeas cases, they were not issuing death warrants. Bobby concedes that the AUMF requires a link to 9/11, but he says the link “can be supplied at the organizational rather than the individual level—and that is precisely how the AUMF has been interpreted for more than a decade now.” Yes, for detention, not for targeting. (Why the Bush administration chose the dumb label “enemy combatant” for anyone it wanted to detain is a different argument, but it might help explain why there’s so much improper conflation between detention and targeting in contemporary U.S. discussion. After all, what could be wrong with targeting an “enemy combatant?”)

Perhaps Bobby would respond that I’m mixing apples with oranges – that I’m talking about…

Thoughts on Brennan’s Speech

by Gabor Rona

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

The Obama administration’s charm offensive on targeted killings continues in response to calls from a broad spectrum of political and legal observers for greater government transparency. The latest entry is Monday’s speech by John Brennan, the president’s chief counterterrorism advisor. Each successive speech by a government official brings some new tidbit, gloss or nuance into the public domain. Sometimes though, it appears that instead of being a deliberate and coordinated drip feed, the speeches by Brennan, by State Department Legal Advisor Harold Koh, by Department of Defense General Counsel Jeh Johnson and by Attorney General Eric Holder are the tips of competing icebergs, reflecting pitched battles within and across government agencies about the legality of targeted killings. For example, earlier this year, NY Times reporter Charlie Savage highlighted a dispute between Koh and Johnson about the scope of targetability under international laws of armed conflict. The latest Brennan speech has some new tidbits, but may also be a signal that Johnson’s expansive view of targetability has prevailed over Koh’s views that are more consistent with the limitations of international law.

Brennan’s says that  “(i)n this armed conflict, individuals who are part of al-Qa’ida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.”  The use of the WW II analogy is not new, but Brennan’s sweeping and incorrect claim…

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.

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…)

Drones and the CIA and Charlie Savage’s NYT Article

by Kenneth Anderson

Although I was up at six, I think Julian must get up a lot earlier than I do, as he is regularly beats me to the punch on what’s in the newspapers on drones.  I will post something more once Philip Alston’s report is out next Tuesday and I have had a chance to read the text.  But here are a couple of comments per Charlie Savage’s exceedingly interesting NYT piece.

There are two ways of seeing a call for drone strikes to be turned over to the US military, rather than the CIA.  One is fundamentally grounded in the binary that all uses of force must be either law enforcement or else armed conflict – and if so, there is no room for the CIA to be conducting these strikes.  In that case case, the call to take the CIA out of it is a way of reasserting the basic binary.  This is problematic from the US standpoint, if it is a way of reasserting this fundamental binary, since the Legal Adviser’s ASIL speech specifically preserves an independent ground of self-defense that is not a matter of armed conflict.  If CIA participation is unlawful because the binary holds, then the US has simply rejected the underlying premise – indeed, said that it has never accepted it, going back clear to the 1980s and beyond.

The other way to see a call to take the CIA out of the activity is on the ground that because this is an armed conflict, uses of force must be undertaken by lawful participants, and the CIA, as a civilian agency, is not a lawful participant.  Insofar as this is offered as something that is not driven by the fundamental binary above, then it is essentially a claim about the CIA not meeting the requirements lawfully to engage in hostilities – some version of the claim that the war with Al Qaeda is an armed conflict, and the CIA are not privileged combatants.  This is a technically more complicated claim in the rules of war than much of the public discussion has treated it.  Much of the public discussion seems to revolve around the idea that if you are a civilian, you are not allowed to take part in hostilities; the legal point, rather, is that there are numerous categories of civilians that have varying roles in direct participation in hostilities and the point is not to say that their participation is unlawful, it is that – if they were facing a lawful foe – they are themselves lawful targets.  Whether they wear uniforms or not is a question of whether the circumstances in which they wear uniforms, or non-standard uniforms (e.g., special forces in Afghanistan), etc., is a question of whether they fail to distinguish themselves from the non-combatants.  Insofar as they do this from Langely in some cubicle, that does not really present a problem.

As to the assertion that they have made themselves lawful targets – that would be true if engaged with a foe that could lawfully target anything.  In the case of a terrorist group – Al Qaeda, the IRA, ETA, etc., the automatic assumption that military lawyers sometimes make, that jus ad bellum and jus in bello are independent, is beside the point; these groups have no reciprocal right to target anything, irrespective of whether, in a lawful conflict, something or someone would be a target.  It is not the case that by flying a drone from Langley, the CIA operator is now a lawful target – he or she would be if flying it in a conflict with, oh, North Korea, but not Al Qaeda.  Al Qaeda has no belligerency rights jus ad bellum, just as it has no combatant privilege jus in bello.  To suggest that the CIA at Langley has put itself into an “equivalent” position is not correct.  If the CIA at Langley were fighting a lawful actor, its participants would be lawful targets – although not, merely in virtue of not wearing uniforms inside Langley, “unlawful combatants.” But not as regards Al Qaeda. (more…)

Why the President’s Targeted Killings are Illegal (According to Professor O’Connell)

by Julian Ku

Kevin has done, and is doing, a very nice job of critiquing the legality of the Obama Administration’s targeted killing policy.  On the critical side, it is also worth noting the views of Mary Ellen O’Connell, Professor at Notre Dame, who has become a leading public critic of the legality of this policy.  Her basic point is that international law only permits such killings on the battlefield, and any killings off of the battlefield (as she defines it) are illegal acts of extrajudicial murder. This would be true whether or not the U.S. actor is a privileged combatant.  I think this makes sense, even if I doubt it is right.  It does show, however, that the Obama and Bush Administration’s policies as to the nature of this war is pretty close (and getting closer).  Because it is President Obama, and because he has folks like Harold Koh, Neal Katyal, and Marty Lederman to defend these views, I don’t think there will be nearly the same level of controversy as during the Bush years.

The Constitutionality of President Obama’s Targeted Killing of U.S. Citizens

by Julian Ku

The NYT reports that the Obama Administration has authorized the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, The article notes the international law justification for his killing: he is an avowed member of Al Qaeda actively engaged in hostilities against the U.S.  Under either the law of armed conflict or the general law of self-defense, the Administration probably has the legal authority to kill him.  (Unless international human rights law applies, but the administration plainly believes this law does not apply). 

But, as I noted here a few months ago, this international law analysis does not answer questions about al-Awlaki’s constitutional rights.  Under U.S. Supreme Court precedents, U.S. citizens often can invoke constitutional rights against the U.S. government, even when they are abroad. (See Reid v. Covert). Maybe this is a situation where granting constitutional protections would be, as Justice Harlan  suggested, “impracticable and anomalous.”  It certainly seems that way, and I assume the Obama Administration has concluded that the Constitution does not apply.  Alternatively, the Constitution might apply, and the theory is simply that al-Awlaki’s rights substantive and procedural Due Process rights are not being violated.  This seems a harder argument to make, and it would be fascinating to see someone (like Harold Koh again?) make it.

Predators over Pakistan …

by Kenneth Anderson

My new Weekly Standard essay – although “polemic” is probably closer to it.  And thanks, Julian, for the plug below! Well, regular readers have been hearing about this piece for a while, and I have posted various arguments from it (concerning targeted killing and Predator drones and the CIA and armed conflict and self-defense, and my general concern that the Obama administration has embraced a policy that its lawyers have not so far stood up publicly to defend as lawful against its gradually emerging critics in the international “soft law” community) here at Opinio Juris and at Volokh Conspiracy.  I will post a couple of comments on the piece later, including of couple of things I wish I had clarified or said differently.  Meanwhile, if you are interested, it is the cover in this week’s Weekly Standard (March 8, 2010).  It is also very, very long, at some 8,000 words — for which I am deeply grateful to the WS’s editors but you perhaps will not be — and so you might find it easier to read a pdf of the print edition at SSRN.

I have been meaning to add, though, that several positions are emerging in new scholarship coming out on this topic.  I’m not the only person defending “self defense” as the correct paradigm, for example.  Jordan Paust has an important new paper on this, and although we come to very different conclusions as to what and how self-defense does things for you, we share a foundation in international law of self-defense.  Mary Ellen O’Connell also has a well known position, ably set out in this book chapter, and which I criticize in passing in the WS.  John Radsan and Richard Murphy stake out an interesting position that calls for some form of judicial review of targeted killing, in this new Cardozo paper.  And, of course, the Ur-Text on the subject (even when I disagree with it!) Nils Melzer’s treatise, Targeted Killing in International Law (Oxford 2008), which I see is now out in paperback at $50 (but no Kindle edition).  I will come back in a separate post both to comment on some things from the WS essay at a less political level, and also to give a better sense of where my position sits in relation to others in the international law community.  Finally, I’d like to thank and congratulate the Harvard National Security Journal for its upcoming symposium on robotics, drones, and related topics this week – it promises to be very interesting, and I believe the journal might post some account of it or perhaps some video of the program.

Targeted Killings: the NYT echoes Ken and Demands an Accounting

by Julian Ku

Our own Ken Anderson is one of the most knowledgeable and thoughtful legal scholars on the question of targeted killings by the United States. And he has noted here and the Volokh that he has developed a complex analysis of the U.S. policy toward targeted killings, which grounds such killings in the international law of self-defense rather than the law of war.  And he has criticized the failure of the Obama Administration to provide any legal justification for these killings.

Right on cue, Roger Cohen of the NYT argues for, basically, the same thing, although he is a bit confused in his argument.

Yale Journal of International Law Conference on Government Lawyering and International Law

by Julian Ku

The release of the final report on the Yoo/Bybee “torture memos” reminds us of how government lawyering can intersect with the interpretation of international law.  And so just in time, the Yale Journal of International Law will be hosting a conference next Friday, February 26, on “Government Lawyering and International Law.” Harold Koh, John Bellinger, and lots of other less famous but no less important and experienced folks will be participating. I don’t think I can make it up to New Haven this Friday, but I encourage those of you who can to attend.

The End of the War Over the Torture Memos?

by Julian Ku

After five years, the U.S. Department of Justice has finally released its report of its internal investigation into the legal advice provided by its attorneys that became known as the “Torture Memos.”  The lead investigator was the Office of Professional Responsibility (OPR) which issued a report recommending referring John Yoo and Jay Bybee to their state bars for disciplinary proceedings.  But this recommendation (which was not officially made until December 2008), has been soundly and completely rejected by David Margolis, the Associate Deputy Attorney General empowered by the DOJ to decide whether to accept the OPR recommendations.   All of the relevant documents have been posted on the House Judiciary Committee website.  I’ve only scanned them, but here is the bottom line: Yoo and Bybee’s work on the torture memos is called “poor judgment” and “flawed” but there is no evidence that this advice reflected any professional misconduct.

The decision memo by Margolis (who is a career attorney, not a political appointee) is tough on John Yoo’s work, but it is even tougher (and at times contemptuous) of the work done by the OPR.  The OPR report is rejected in every single way possible.  (Indeed, I wondered at times whether the OPR attorneys are going to be investigated for professional misconduct themselves).

Does this mean the end of the war over the “torture memos”?  Uh, hardly. Congress is going to go over these memos again.  But it is the beginning of the end. The chance of a criminal prosecution of the Bush attorneys in the U.S. is now, effectively, zero. (I argued this point in this essay here and I am glad that I will be proven right)  Civil suits are going to face some serious problems, if the analysis in these documents is accepted.  Even international prosecutions are going to have to take seriously the fairminded analysis in the Margolis memo, which drew tough but persuasive distinctions between good faith legal analysis and professional misconduct.  It would be odd for something that wouldn’t even qualify as an ethics violation in the U.S. to be the basis for criminal liability under a theory of universal jurisdiction.  But then again, I’m not Judge Garzon.