Author: Deborah Pearlstein

150 Years of War Regulation

ICRC and ASIL's Lieber Society on the Law of Armed Conflict are hosting what looks to be a great event celebrating the 150th anniversary of the ICRC and the Lieber Code, Tuesday, July 23, 2013, 3:00 p.m. at the American Red Cross historical building, 430 17th Street NW, Washington DC. The event features John Fabian Witt, author of the...

One of the Things We Learned About Targeting

There is now a set of important new documents regarding its targeted killing operations: (1) a letter from U.S. Attorney General Eric Holder to members of Congress describing the decision to target U.S. citizen Anwar al-Aulaqi; (2) a “fact sheet” on procedures for the use of force outside areas of “active hostilities"; and (3) the transcript from the President’s speech to the National Defense University. What can we glean from them about the legality of U.S. drone operations, as opposed to what we learned from the leaked DOJ White Paper some months back? I’m still sorting it out, but for now, here’s one: Whether or not you believe the United States is in a legally recognizable transnational non-international armed conflict with Al Qaeda – a view the United States embraces but the ICRC and most U.S. allies reject – the standards announced in these documents appear intended to keep U.S. targeting operations in line with the international law of self defense.

Starting at the End

Far too much to say for one blog post, so I’ll start with two things I liked about the speech. First, bravo on the President for giving it. Would that he had done it years ago. Indeed, having heard it, it is even more of a puzzle why it took as long as it did. Still,...

Link to White House Fact Sheet on Use of Force Procedures

Another must-read today from the White House, a one-pager titled "Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities." Here's the link. From the introduction: [T]he President has approved, and senior members of the Executive Branch have briefed to the Congress, written policy standards and procedures that...

Link to President Obama’s Speech

An hour long as delivered, and full of substantive content. Transcript is here. ...

So Was Congress Thinking of Authorizing Force in Syria?

As members of Congress begin calling more insistently for some unspecified form of U.S. military intervention against the regime of Syrian president Bashar al-Assad, I admit to suffering the same doubt as Julian. What exactly is the legal theory here – under domestic and international law – that would authorize the United States to use force in Syria? There was,...

Justice Kennedy’s One-Paragraph Concurrence

Would've been helpful if he'd said a wee bit more. For now, we'll have to comb through the majority opinion in search of the questions he has in mind. In the meantime, worth noting the Court was 9-0 in affirming the Second Circuit's decision to dismiss the ATS complaint in this case. JUSTICE KENNEDY, concurring. The opinion for the Court is careful...

Keeping up with the Drones’

Internal debate inside the Administration must be heating up, because someone in D.C. is in a leaky mood. McClatchy yesterday released a story on U.S. targeting operations billed as the “first independent evaluation of internal U.S. intelligence accounting” of such operations. The report is based substantially on classified reports covering most (not all) of the drone strikes carried out by the...

ASIL on Targeting

As usual, the American Society of International Law conference in Washington, D.C. is filled with panels of interest and great off line conversations with friends and colleagues. Good to see many OJ’ers there. Among many other things, I wanted to highlight yesterday’s lively discussions on targeted killing, including a panel featuring Daniel Bethlehem, Marco Sassoli, Hina Shamsi and David Glazier – a wonderfully thoughtful group. I take it the panel was available via live stream so would expect it will be posted in recorded form at some point as well. For now, a few assorted notes (in no particular order).

Counterterrorism in Court

Readers might be interested in this piece I've posted over at Foreign Policy with a co-author highlighting the virtues of the criminal courts as an essential tool in counterterrorism. Beyond the stats themselves - nearly 500 criminal cases related to international terrorism since 9/11, including 67 cases involving defendants captured overseas according to DOJ -I'd say the real significance...

Getting the CIA Out of the Drone Business

From Dan Klaidman of the publication formerly known as Newsweek, here’s what I’d call good news: “Three senior U.S. officials tell The Daily Beast that the White House is poised to sign off on a plan to shift the CIA’s lethal targeting program to the Defense Department.” There’ve been hints in the press before that new CIA Director John Brennan in particular favored this approach, but this makes it sound as though it may soon become a reality. Why do I think it’s good news, at least on the relative scale of U.S. targeting operations? A combination of reasons, both legal and organizational, which tend to persuade me that Defense Department (DOD) targeting authority is better constrained than CIA.

AUMF 2.0

I hope soon to get more directly to the important news of the prosecution of former Al Qaeda spokesman Sulaiman Abu Ghaith in U.S. federal court in New York and much else of interest in our pages, but I didn’t want to let pass without comment the also important piece in the Washington Post this week that the Obama Administration is examining whether it should seek to extend the legal authorization for targeted killing operations beyond those groups currently identified by the 2001 Authorization for Use of Military Force (AUMF). Per The Post: “The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. As the article rightly explains, these are “militant groups with little or no connection to the organization responsible for the attacks on Sept. 11, 2001.” The AUMF has been the cornerstone of U.S. domestic authority to detain and target members of the Taliban, Al Qaeda and “associated forces,” but it is limited by its terms, by Administration interpretation, and by the courts to uses of force against these groups. As the U.S. prepares to leave Afghanistan and as the Al Qaeda that attacked the United States on 9/11 collapses, the AUMF is of decreasing import. More, as Steve Coll recently wrote, distinguishing the AUMF’s target groups from various violent Jihadi successor groups in Yemen, Mali and elsewhere: “A franchise is a business that typically operates under strict rules laid down by a parent corporation; to apply that label to Al Qaeda’s derivative groups today is false.” So if the AUMF doesn’t authorize the use of force against the next generation of terrorist organization, what should we do?