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Books

04 Jun

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his comments to my chapter “Targeting Co-Belligerents,” Craig Martin asks a very pertinent question: Is the US really in an armed conflict with al-Qaeda?  Or, more abstractly, can a state ever be in an armed conflict with a non-state terrorist organization?  Martin is correct to assume that an affirmative answer to this question is necessary before any of the in bello linking principles are used in my analysis.

Although this is an issue that I largely cabined from my argument in the chapter, it is now a question that very much animates my current research.  Here is my thinking:  At least part of the skepticism regarding the existence of an armed conflict with AQ or other NSAs, stems from an uncertainty regarding classification.  The armed conflict allegedly cannot be a non-international armed conflict (NIAC) because it crosses international boundaries.  On the other hand, though, it cannot be an international armed conflict (IAC) because one of its parties is not a traditional state actor – presumably a condition-precedent for any IAC.  It not falling into either sub-category, it cannot be an armed conflict at all.

I find this argument suspicious, though my thinking on the issue is still evolving.  I am not quite clear on the supposed legal evidence for the proposition that IAC and NIAC occupy the entire field of the concept of armed conflict.  That’s only true when the concepts are defined in opposition to each other (where NIAC would simply refer to anything that is not a traditional IAC).  That was the style of analysis that the Supreme Court used in Hamdan, and that led them to conclude that the armed conflict against AQ was indeed a NIAC.  I found this argument persuasive.

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04 Jun

[Craig Martin is Associate Professor of Law at Washburn University School of Law, and author of another of the chapters in Targeted Killings]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. Jens Ohlin’s chapter in Targeted Killings, “Targeting Co-Belligerents,” provides an important analysis of one of the key questions in the targeted killing debate, and makes a persuasive argument in favor of one possible response to it. In doing so, however, I wonder if it leaves another fundamental question hanging, which I lay out below for him to address. First, however, let me provide a sketch of his argument. Jens begins by noting how the US targeted killing policy, and the transnational terrorism against which it is directed, raises difficult questions regarding which legal regime should be controlling. Not only is there an ongoing debate as to whether responses to terrorism should be governed by domestic criminal law within a law enforcement paradigm, or public international law in the context of armed conflict, but even for those who accept the armed conflict paradigm there are debates over whether the principles of jus ad bellum or jus in bello are best suited to justify the targeted killing. Against that backdrop, and assuming for the sake of his analysis that some targeted killing will be permissible in some circumstances, Jens addresses the question: “who can be targeted and why?” His stated objective is to investigate “the tension between national security and civil liberties through a distinctive framework: what linking principle can be used to connect the targeted individual with the collective group that represents the security threat?” As he explains, regardless of whether one approaches the problem from a jus in bello or a jus ad bellum perspective, the problem of linking the individual targeted to some collective is an essential step in the justification process.
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04 Jun

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.] In April 2011, a group of legal scholars gathered at the University of Pennsylvania Law School for a conference on targeted killings.  The idea was to bring together experts in diverse fields – international law, legal and moral philosophy, military law, and criminal law – into...

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24 May

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the final day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. Thank you all for your insightful comments and...

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22 May

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the sixth day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. Steve Vladeck's post focuses on the interesting question...

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21 May

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the fifth day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. In my previous posts, I have identified three mechanisms of accountability and constraint.  In this final post, I focus on a fourth such mechanism, one that is often ignored by legal scholars but one that might actually be the most important of all:  the role that organizational structure and institutional culture play in creating a context where public values are likely to be internalized within groups. To illustrate what I mean, consider one of the uniformed military lawyers I interviewed shortly after he returned from being embedded with a combat brigade.  This lawyer told me how important it is that “lawyers sit in the room” when combat decisions are made.   He emphasized that, “when there’s a military decision-making process in place, the lawyer should be there.  If you are involved, everyone can see the value added.  The staff and the commander see you as part of the team rather than a weenie lawyer.”  Another lawyer recounts, “My brigade commander was brilliant, and he expected alternative views … If an IED [improvised explosive device] went off, and we were going to respond, he wanted to know, ‘Is it a good shoot or a bad shoot? … [And if] I had concerns, he listened to me.” These and other interviews I conducted with uniformed military lawyers illustrate the critical role that these lawyers play on the battlefield in supporting an organizational structure and institutional culture that fosters respect for core public values.  The existence of accountability agents, such as uniformed military lawyers, is important.   So too is the fact that these lawyers are integrated with operational employees (they comingle with troops and serve on the commander’s staff), they are committed to the core values at stake, they are at least somewhat independent within their own culture (a lawyer who doesn’t see eye to eye with a commander can seek “top cover” by talking to the lawyer assigned to that commander’s commander), and they can recommend that a commander invoke the military justice system in cases of abuse. As I note in the book:
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18 May

[Scott Horton is a Contributing Editor of Harper's Magazine and a Lecturer-in-Law at Columbia Law School.] This is the fourth day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. It’s useful generally to turn the accountability issue on its head and to view the question from the sovereign’s perspective.  Laura’s book takes a view of this question largely from the perspective of a single sovereign, the United States.  She’s done a remarkable job of developing that, recording the efforts to exercise accountability controls, the failures and the possible paths going forward.  But there are other sovereign players in the game, and their attitudes have significant ramifications. Both Iraq and Afghanistan furnish good examples.  In Iraq, few decisions of the Coalition Provisional Authority proved more controversial or cast a longer shadow that CPA Order No. 17, which granted immunity from prosecution under Iraqi criminal law to contractors deployed alongside coalition troops.  That rule, issued on the last day of Paul Bremer’s service as America’s proconsul in Baghdad before power was officially surrendered to an interim civilian government, stayed in place for many years largely as a result of the dysfunctionality of the civilian government that took its place—Iraqi political figures pretty much across the board decried it as an act of colonialist hubris. In both Iraq and Afghanistan, the United States encountered extraordinary difficulty in concluding a status of forces agreement (SOFA).  Iraq may furnish an interesting case-study. Public reporting about this process has been limited and focused largely on high-level political issues.  However, persons close to the negotiations on both sides have confirmed that the most contentious single issue related to the treatment of civilians and civilian contractors.  The Pentagon viewed both DOD civilians and contractors as an essential part of the force deployed; accordingly the United States insisted that both be covered by immunity provisions under the SOFA.  The Iraqis replied that they were essentially prepared to enter into a SOFA along the lines of those that the United States had concluded in the years following World War II—they would have concurrent jurisdiction with the United States over U.S. personnel stationed in country, and would expect to defer to the United States with respect to uniformed service personnel.  They also expressed willingness to compromise with respect to DOD civilians. As for contractors, however, Iraq held firm to the notion that their law should control and that contractors should be covered by it and subject to prosecution in Iraqi courts. 
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17 May

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. Following-up on my earlier post on the difficulty of changing contracting practices by executive agencies, I thought I’d highlight a few quotes from a January 2011...

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17 May

[Jeffrey K. Walker is Assistant Dean for Transnational Programs at St. John's University School of Law] This is the third day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. With Outsourcing War and Peace, Laura Dickinson did a remarkable job canvassing an area of the law that has received a significant amount of attention and scholarship since the publication of Peter Singer’s landmark 2003 book, Corporate Warriors. Laura has done the heavy lifting for those of us who haven’t been able to keep up with this burgeoning research, laying out a tightly crafted survey of the scholarship while adding a lot of value to the debate with her “now where do we go from here?” recommendations for change. So I loudly applaud her fine efforts. Because Laura has bitten off a very big scholarship challenge with Outsourcing War and Peace, the work does suffer a bit at the margins from being overly broad in some areas that call for deeper and more nuanced analysis and discussion. For example, in discussing the possibility of broadening the tort liability of contractor personnel engaged in direct support of military activities, she comes down on the side of allowing Federal Tort Claims Act (FTCA) immunity for contractors, albeit with the narrower test for immunity proposed by the dissent in the D.C. Circuit’s Saleh case. While I agree that an overly broad definition of FTCA immunity is a mistake and the majority in Saleh got this dangerously wrong, I would have liked to have seen deeper discussion of the more fundamental issues at play here. Although contractors may appear to be “integrated into combat activities” as Judge Silberman claims in his majority opinion, how truly integrated can contractor personnel be when they are not subject to military command authority with the penal sanctions faced by military members for disobeying, can quit whenever they really don’t like something they’ve been told to do or not do, and ultimately do not enjoy combatant immunity for their otherwise criminal acts? Laura’s discussion would have benefited from drilling deeper here. I was very pleased by her recommendations concerning enhancing the enforcement of the Military Extraterritorial Jurisdiction Act (MEJA) by establishing a DoJ entity specifically tasked with investigating and prosecuting MEJA cases. Let’s face it, these cases have no natural constituency among the notoriously parochial U.S. Attorneys unless they are generating a lot of press. In most cases, no U.S. Attorney wants the responsibility, trouble, or expense of a MEJA prosecution with its remote witnesses and evidence, expensive travel headaches, and translation difficulties. As a guy who, with the strong support of my then-boss, unsuccessfully proposed a plan to deploy collateral damage/war crimes/friendly fire investigation teams with the coalition maneuver forces in the 2003 Iraq invasion, I find her concern about the importance of investigative capacity on the ground to be absolutely spot on.
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17 May

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the third day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. While they are not often viewed in this way, government contracts can serve as a tool for implementing public values such as human rights or humanitarian law principles.  In the domestic setting, with privatized prisons, health care, and welfare-to-work programs, we actually have some experience writing public values into contracts and including them in the contract management and oversight regime.  In the book, I compare domestic contracts of this sort and foreign affairs contracts – and the foreign affairs contracts fall short. The contracts, in my view, fail to specify with sufficient precision terms that would require appropriate and meaningful training in particular human rights and humanitarian law principles, as well as vetting of potential contractor employees for problematic human rights records and other issues.  In the wake of the Nisour square shooting, for example, a State Department report noted that while the U.S. Embassy in Iraq “provides comprehensive guidance on permissible uses of deadly force and the circumstances under which deadly force can be used,” that guidance is less explicit on how deadly force should be used.” (at 6).  The report emphasized the discrepancies in rules applicable to state department and defense department contractors.  And at the time of the Abu Ghraib prison abuse scandal, military reports emphasized the poor vetting and training of contract interrogators and translators. To be sure, since then the Bush administration and the Obama administration have made strides to improve the contracts.  A Memorandum of Understanding harmonized key differences in contract terms among the agencies.  Defense recently implemented a rule that laid out much better training requirements for security contractors.
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17 May

[Steve Vladeck is Professor of Law and Associate Dean for Scholarship at American University Washington College of Law.] This is the third day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. One needn’t look far for proof that the issues raised by Laura Dickinson’s Outsourcing War and Peace with regard to the absence of liability for military contractors are at the forefront of contemporary law and policy. If outsourcing is here to stay, then it seems only right to ask how we might ameliorate some of the concerns that such privatization raises. And although I think Deborah Pearlstein is exactly right to link the problems of contractor liability to the broader “waning public accountability for national security and military affairs more generally,” the specifics also matter, since a host of recent legal developments have focused on the case for (or against) contractor accountability as such. To that end, Professor Dickinson, who champions the need for greater civil and criminal liability, already noted last Friday’s decision by the en banc Fourth Circuit in the al-Shimari case concerning whether victims of torture at Abu Ghraib can pursue state law tort claims against the military contractors allegedly at fault (for now, they can). And we should hear soon from the Court of Appeals for the Armed Forces, which heard argument in April in United States v. Ali on the question whether the Constitution allows the military to court-martial civilian contractors accompanying U.S. forces in the field during overseas “contingency operations.” But for all the attention that al-Shimari and Ali have received from observers like Professor Dickinson, I want to suggest in this post that we would do well to also consider United States v. Brehm—a less-noticed appeal argued yesterday before a three-judge Fourth Circuit panel—as a reason to search for nuance in the quest for a coherent approach to contractor liability.
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