Jack Goldsmith notes at Lawfare: Last Monday Harvard Law School conferred its medal of freedom on one of its graduates, General Mark Martins, Commander of the Rule of Law Field Force -Afghanistan. The Harvard National Security Journal has just posted the speech, with slides, that General Martins gave for the occasion....
The US has now deployed armed drones over Libya, according to press reports. Drone systems have been operating as surveillance systems for weeks now, but acting on a NATO request, the US has now put up at least two weaponized drones in the Libya conflict. The logic of this move is inescapable. NATO countries launch air strikes against Libyan army assets, making...
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.
I don't have anything of my own to add to the very instructive debate underway over Congressional authority and war powers, and actions authorized by the Security Council under Chapter VII. However, to go with the terrific interventions by Michael Ramsey and others, I wanted to flag Michael Glennon's 1991 AJIL article on this topic, which he has now put...
Can the coalition forces using force in Libya under the Security Council’s authorizing resolution lawfully target Gaddafi personally? This question has provoked some heated back and forth among political leadership of several coalition countries, including the US and the UK: Yesterday a war of words erupted between the U.S. and Britain after the U.K. government claimed Muammar Gaddafi is a legitimate target for...
In case you weren't aware, Eric Posner is discussing his and Adrian Vermeule's new and highly provocative book, The Executive Unbound, in a series of posts this week at Volokh Conspiracy. The Libyan conflict has unsurprisingly raised the stakes over this discussion - Eric is engaging with vigor, and linking up the book's argument to current events and arguments. Well...
Alas, I won't be at ASIL this year, and apologies to everyone, as I will miss seeing folks. But I did want to flag particularly the meeting that Kevin mentioned in his post, taking place on March 23, co-sponsored by my law school, Washington College of Law and ASIL's Lieber Society, on emerging issues in the law of armed conflict. It...
Kristof had previously suggested that the U.S. should assure safe passage for Libyan defectors. But the officer’s story reminded me of an alternative, more economic, incentive deployed in Iraq, where the U.S. offered defecting officers cash to lay down their arms. As reported by Fred Kaplan inSlate in 2003: A fascinating piece in the May 19 Defense News quotes Gen.Tommy Franks, chief of U.S. Central Command, confirming what had until now been mere rumors picked up by dubious Arab media outlets—that, before Gulf War II began, U.S. special forces had gone in and bribed Iraqi generals not to fight. “I had letters from Iraqi generals saying, ‘I now work for you,’ ” Franks told Defense News reporter Vago Muradian in a May 10 interview. The article quotes a “senior official” as adding, “What is the effect you want? How much does a cruise missile cost? Between one and 2.5 million dollars. Well, a bribe is a PGM [precision-guided munition]—it achieves the aim, but it’s bloodless and there’s zero collateral damage.” A “Smart Bribe” can be a lot cheaper than a “Smart Bomb.” Gideon Parchomovsky and Peter Siegelman (friends and coauthors) have published a fascinating article detailing the pros and cons of bribing enemy combatants to switch sides.Ayres includes a chart from the Parchomovsky and Siegelman article that walks historically through instances of such bribes in wars in the past and the results; I’ll stick it below the fold, but you can get a more readable view at Ayres’ original post.
I have some views, but they are not entirely solidified, so let me put this out as a question. France has recognized the the rebels as the sole legitimate representatives of the Libyan people, and withdrawn its recognition of the Qaddafi government. If that is so, what, if any, are the international law consequences of that recognition? I understand that many...
