Last thoughts on the ‘kill-or-capture’ order of Bin Laden

Briefingat the White House by Press Secretary Carney:

The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely. The operation was conducted in a manner fully consistent with the laws of war. The operation was planned so that the team was prepared and had the means to take bin Laden into custody. There is simply no question that this operation was lawful. Bin Laden was the head of al Qaeda, the organization that conducted the attacks of September 11, 2001. And al Qaeda and bin Laden himself had continued to plot attacks against the United States. We acted in the nation’s self-defense. The operation was conducted in a way designed to minimize and avoid altogether, if possible, civilian casualties. And if I might add, that was done at great risk to Americans. Furthermore, consistent with the laws of war, bin Laden’s surrender would have been accepted if feasible.

UN Special Rapporteur Martin Scheinin says the operation was lawful, and did not violate international law.

“The United States offered bin Laden the possibility to surrender, but he refused. Bin Laden would have avoided destruction if he had raised a white flag”, Scheinin said on Tuesday.According to Scheinin, apprehending a dangerous criminal like Osama bin Laden means that one must be prepared to use force. He noted that killing is permissible under international law only if the person being apprehended resists, and if there are no other means available.Scheinin said that the United States was prepared for the possibility of catching bin Laden alive, noting that the operation involved a commando raid on his hiding place, and not a missile strike.

Later the UN Special Rapporteur issued a joint statement together with Chris Heyns, the Special Rapporteur on extrajudicial, summary or arbitrary executions:

“Acts of terrorism are the antithesis of human rights, in particular the right to life. In certain exceptional cases, use of deadly force may be permissible as a measure of last resort in accordance with international standards on the use of force, in order to protect life, including in operations against terrorists. However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment.

Actions taken by States in combating terrorism, especially in high profile cases, set precedents for the way in which the right to life will be treated in future instances.

In respect of the recent use of deadly force against Osama bin Laden, the United States of America should disclose the supporting facts to allow an assessment in terms of international human rights law standards. For instance it will be particularly important to know if the planning of the mission allowed an effort to capture Bin Laden.

It may well be that the questions that are being asked about the operation could be answered, but it is important to get this into the open.”

Mary O’ Connel elaborates at Foreign Policy:

The question turns on one critical factor: President Obama’s orders to the Navy SEAL team that carried out the raid on bin Laden’s compound in Abbottabad. Orders to kill, not capture, bin Laden would be difficult to defend legally. But top counterterrorism adviser John Brennan stated Monday that the SEALs were under orders to capture bin Laden if they could. CIA chief Leon Panetta has implied, on the other hand, that the team was under orders to kill, with the option to capture if he attempted to surrender. If Panetta is correct, the legal case is weakened but can still be defended.
(…)The ECHR considered a case in
1995 with parallels to the bin Laden raid. In McCann v. The United Kingdom, the court found that members of the
elite British SAS used excessive force when they killed IRA members in Gibraltar who were suspected of preparing a bombing. The court found that the operatives should have attempted to arrest the terrorists, instead of shooting them based on intelligence they possessed that the suspects were preparing to use explosives. If the suspects had resisted arrest or attempted to escape, authorities then would have had had the right to resort to lethal force.

This is the law that applied in bin Laden’s case. On May 2, no fighting was going on in Pakistan that would rise to the level of “armed conflict” as defined under international law; Pakistan had to suspend major military operations against militant groups in the country’s tribal areas after the floods of 2010. And despite what some commentators have argued, under international law there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves. The correct choice of law, therefore, was peacetime law.

The discussion continues at Opinio Juris here and EJIL Talk here.

Reprieve pursues international legal action against US and allies for drone attacks in Pakistan

According to Reprieve, “it has emerged that up to 2,283 people have been killed by US unmanned aircraft, or ‘drones’, since 2004 — with the numbers rapidly escalating in the past two years under President Obama. As many as 730 victims have been wholly innocent, according to one official source.”

Preliminary investigation by Reprieve suggests that the number of innocent victims may be far higher, and that (contrary to American claims) the likelihood of the US hitting its intended “high-value terrorist” is low. Without doubt, the victims include a significant number of women and children.

On Monday, Reprieve co-sponsored a conference in Islamabad: Litigating the War of Terror in Pakistan. Mirza Shahzad Akbar, an Islamabad-based lawyer representing drone victim families, has been accumulating evidence on drone strikes and consulting with Reprieve on potential legal action. The evidence exposes an urgent need for a full and independent inquiry into the use of drones, as well as litigation in Pakistani and international courts.

Interview with John Rizzo, ex CIA acting general counsel

The Newsweek interview focuses on extrajudicial killings:

How CIA staffers determine whether to target someone for lethal operations is a relatively straightforward, and yet largely unknown, story. The president does not review the individual names of people; Rizzo explains that he was the one who signed off. People in Washington talk about a “target list,” as former undersecretary of state Richard Armitage described the process at a recent event in Washington. In truth, there is probably no official CIA roster of those who are slated to die. “I never saw a list,” says a State Department official who has been involved in discussions about lethal operations, speaking without attribution because of the nature of the subject. Officials at the CIA select targets for “neutralization,” he explains. “There were individuals we were searching for, and we thought, it’s better now to neutralize that threat,” he says.

Under another Bush order, signed several years later, a variety of people who worked in terrorist camps could be  targeted, and not just named terrorism suspects; at that point, the pool of potential candidates reviewed by CIA lawyers became much larger. Despite the secrecy surrounding these orders, their scope has become  clear. “The authority given in these presidential findings is surely the most sweeping and most lethal since the founding of the CIA,” William C. Banks, director of Syracuse University’s Institute for National  Security and Counterterrorism, told a House committee.

The hub of activity for the targeted killings is
the CIA’s Counterterrorist Center, where lawyers—there are roughly 10 of
them, says Rizzo—write a cable asserting that an individual poses a
grave threat to the United States. The CIA cables are legalistic and
carefully argued, often running up to five pages.

Rizzo says he saw about one cable each month, and at any given time there were roughly 30 individuals who were targeted.

Rizzo found himself at the center of controversy. He was, as he puts it, “up to my eyeballs” in President Bush’s program of enhanced interrogations in the so-called black sites, or secret prisons, located in Afghanistan and in other countries.

23 Civilian Killed by Drones Attributed to Data Overload

The New  York Times reports that when military investigators looked into an attack by American helicopters last February that left 23 Afghan civilians dead, they found that the operator of a Predator drone had failed to pass along crucial information about the makeup of a gathering crowd of villagers.

But Air Force and Army officials now say there was also an underlying cause for that mistake: information overload. At an Air Force base in Nevada, the drone operator and his team struggled to work out what was happening in the village, where a convoy was forming. They had to monitor the drone’s video feeds while participating in dozens of instant-message and radio exchanges with intelligence analysts and troops on the ground.

There were solid reports that the group included children, but the team did not adequately focus on them amid the swirl of data — much like a cubicle worker who loses track of an important e-mail under the mounting pile. The team was under intense pressure to protect American forces nearby, and in the end it determined, incorrectly, that the villagers’ convoy posed an imminent threat, resulting in one of the worst losses of civilian lives in the war in Afghanistan.

More assassinations of Pakistani ‘informers’ because of increase in drones

The Washington Post reports that the current pace of assassinations of people who are labeled as US informers is unprecedented. The escalation parallels a massive surge in CIA drone attacks on North Waziristan. CIA drones have fired 112 missiles on Pakistan’s tribal areas this year, 88 percent of which hit North Waziristan, in a campaign whose effectiveness is hotly debated. But tribesmen say the U.S. campaign has had far-reaching consequences for the way of life in North Waziristan and provoked cycles of violence that, once in motion, are difficult to predict and impossible to control.

In interviews, several Pakistani officials, tribesmen, and one militant said the torrent of strikes has forced residents to stay indoors and deny friends shelter, fearing allegations of spying. The attacks have forced militants to ditch truck convoys and cellphones, and, in the case of the Pakistani Taliban, shutter an office in the town of Mir Ali.

Above all, residents said, the stepped-up strikes have perpetuated an entrenched culture of clan rivalry and retribution. With scant proof, militants are purging suspected moles, and their willingness to do so has made the accusation a valuable tool for people seeking revenge for land disputes or other personal enmities.

“They are just spreading terror by killing anyone,” said Lt. Gen. Asif Yasin Malik, who commands all Pakistani troops in the northwest, including the semiautonomous tribal areas.

Mary O Connel on the ‘rights v. security’ myth

Professor Mary O’ Connell talked about extrajudicial killings before the Subcommittee on the Constitution, Civil Rights and Civil Liberties here.

The only place where it is lawful today for the United States to intentionally target and kill persons is in Afghanistan. The only persons who may plausibly be held without trial until the end of hostilities are detainees in Afghanistan. With respect to individuals outside Afghanistan of concern to the United States, the U.S. must treat them as criminal suspects, just as it is treating Julian Assange and just as it is treating a number of persons within our own borders.

To do otherwise, weakens American security by fueling anger and hatred in response to our law violations. We also fuel anger by extending rights to people in the U.S. and in Europe that we do not extend in poorer regions. Law violations and disparate treatment weakens America’s ability to lead in strengthening the rule of law in the world. Fundamentally, it will be respect for law and rejection of violence that will give Americans the greatest security

Read also O’Connel’s article on the ‘choice of law against terrorism’ here.

District court dismisses Al-Aulaqi v. Obama

(ASIL) The U.S. District Court for the District of Columbia has dismissed a civil action filed on behalf of Anwar Al-Aulaqi, a dual U.S.-Yemeni citizen and an alleged al Qaeda supporter, currently hiding in Yemen. Al-Aulaqi’s father asked the U.S. court to issue an injunction prohibiting the U.S. government from executing an “unlawfully authorized targeted killing” of his son. The U.S government argued that all of plaintiff’s claims should be dismissed on several grounds, including that the plaintiff lacked standing; that the claims were in violation of the political question doctrine; that the Court should exercise its “equitable discretion;” that no relevant cause of action exists under the Alien Tort Statute; and that the state secrets privilege was implicated.

The District Court, in a lengthy decision that carefully analyzed each of the five grounds, concluded that while the alleged targeted killing of plaintiff’s son was a “drastic measure,” the Court was barred by the political question doctrine from judicial review. According to the District Court, it was not for the courts to question the decision “textually committed to the political branches, and . . . courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims.”

New calls for the increased use of drones in Pakistan, experts worry about side-effects

The United States has renewed pressure on Pakistan to expand the areas where CIA drones can operate inside the country, reflecting concern that the U.S. war effort in Afghanistan is being undermined by insurgents’ continued ability to take sanctuary across the border, U.S. and Pakistani officials said in the Washington Post.The U.S. appeal has focused on the area surrounding the Pakistani city of Quetta. Pakistan has rejected the request. Pakistani officials stressed that Quetta is a densely populated city where an errant strike is more likely to kill innocent civilians, potentially provoking a backlash.

The White House is also considering adding the CIA’s armed Predator drones to the fight against al-Qaida’s branch in Yemen. Gregory Johnsen at the Waq al-Waq blog offers the following thoughts on the possibility of using drones in Yemen:

I have sat and thought … and yet I can’t find a way that using drones in Yemen doesn’t exacerbate the problem of al-Qaeda in the Arabian Peninsula. (…) The results of a year of drone strikes will be no different from a year of airstrikes: al-Qaeda will gain more recruits, grow stronger, and continue to launch increasingly sophisticated attacks at the US and Europe. The US may kill a few commanders, but those men will be replaced many times over.

Johnsen argues that comparisons with Pakistan are likely to be unhelpful and a better model for Yemen would be the campaign the
Saudis waged against al-Qaeda between 2003 and 2006:

“That campaign combined the hard fist of
military and police power with the softer approach of encouraging
qualified Islamic scholars to challenge al-Qaeda’s claim that it
represented Islam. But most importantly it used al-Qaeda’s mistakes
against itself, leading to a public backlash that left the terrorist
organisation nowhere to hide.”

Brian Whitaker comments:

Johnsen’s main point, though, is something I alluded to
yesterday: the need to change the public discourse in Yemen in order to
undermine al-Qaeda’s support. That is not going to be achieved by drone
strikes; quite the reverse. 

“Yemenis need to be convinced that AQAP
is bad for them and bad for Yemen,”
Johnsen writes.
“But at the moment al-Qaeda is the only one doing the arguing.
It puts out statement after statement that depict the group as some
sort of Islamic Robin Hood defending Yemen’s oppressed and weak people
against western military attacks. While largely unnoticed in Washington
these unchallenged and baseless claims are carrying the day in Yemen’s
hinterlands.”

Some have gone so far as to suggest we’re heading for a new drones-arms-race. The WSJ reports now that China is “ramping up production of unmanned aerial vehicles in an apparent bid to
catch up with the U.S. and Israel in developing technology that is
considered the future of military aviation.”

China’s apparent progress is likely to spur others, especially India and Japan, to accelerate their own UAV development or acquisition programs.

U.S. anxiety about China’s UAVs were highlighted in a report released Wednesday by the U.S.-China Economic and Security Review Commission, which was formed by Congress in 2000 to assess the national security implications of trade and economic relations with China.

“The PLA Air Force has deployed several types of unmanned aerial vehicles for both reconnaissance and combat purposes,” the report said. “In addition, China is developing a variety of medium- and high-altitude long-endurance unmanned vehicles, which when deployed, will expand the PLA Air Force’s ‘options for long-range reconnaissance and strike,’ ” it said, citing an earlier Pentagon report.

Mary Ellen O’Connell ASIL piece on the international law of drones

This ASIL insight surveys the international law applicable to the recent innovation of weaponizing drones.

No human rights rift on targeted killings

Tom Malinowski of HRW replies at Ben Wittes blog:

With respect to the argument that the U.S. is involved in a “non-international” (meaning non-intergovernmental) armed conflict in Yemen, triggering the application of the laws of war, Ben is right that we have not contested it.  Nor have we asserted it.  This is, as they say, a hard question. We do believe, however, that it is a question within the scope of judicial review, and in that sense we agree with the ACLU/CCR suit, and with Kevin’s post here.

How far the United States extends the concept of armed conflict matters a great deal.  Extended too far, the concept would allow any U.S. president–and the leader of any other country–to evade the most fundamental restrictions on the power to kill and detain; it would, indeed, allow governments to target anyone for attack anywhere under the guise of waging a global war. U.S. courts have already recognized that when the government applies war rules on a recognizable battlefield, a degree of judicial deference to the executive is appropriate; when the government seeks to extend them to places where the obvious indicia of a battlefield are missing, that broad judgment should be open to independent review.

Now, if someone like al Aulaqi were actively participating in a non-international armed conflict, I still think that for prudential reasons the targeted killing of such a person should take into account whether it is possible to arrest him or to mitigate the threat in any other way. I believe that in part for the reason Ben states: We would not want the U.S. or any other country bombing apartment buildings in London or Paris just because an al Qaeda figure was staying in them, even if they could concoct some theory of military necessity, such as the non-cooperation of local authorities. I also believe it for a reason Ben would likely dispute–that traditional law enforcement tools are more effective in the fight against al Qaeda because they help to delegitimize terrorists as criminals rather than elevating them to the status of warriors.  But I’m glad that Ben and I agree on the bottom line here.

If, on the other hand, the situation involving al Aulaqi were only governed by international human rights law, and not the laws of war, then, as Kevin points out, that would not necessarily preclude targeted killing if the threat to life were imminent and there were no other alternative.  And here I don’t think that the “imminence” rule would require the U.S. to show that an al Qaeda planner was literally on his way to the airport to put a bomb on a plane to Chicago before launching a strike. But it would require an individualized determination that the target is actively involved in planning future attacks (as against simply having been involved in terrorism in the past).  And of course, that he is in a place, of which there are thankfully few in the world, that is truly beyond the reach of law enforcement.

Of the arguments I made in my post, the most important is one with which I think all three of us agree:  that the Obama administration should be clearer about where it draws the line between lawful and unlawful targeted killings. This is an enormously consequential matter. Barack Obama is not the last president who will face these questions, and his successors may not all be former professors of constitutional law. As I suggested in my post, the United States is also not the only country with the capacity and motivation to pursue perceived enemies beyond its borders. More and more countries will eventually possess drone technology, on top of the poisoned tea and car bombs they already have. More and more may feel entitled, by virtue of their size and growing global influence, to engage in military action on a global scale. What truly matters in such a world is not what Tom Malinowski believes the law to be (as flattered as he may be by this debate), but what the United States government believes the law to be. By asserting that it is acting in accordance with international law, the U.S. is setting an example for the rest of the world. What does it want that example to be?

The reluctance of U.S. officials to lay out their sense of where the legal limits lie undoubtedly is motivated by the traditional bureaucratic impulse to keep as many options open as possible. The stated reason–that the drone program is too secret and sensitive for the justification to be laid out in full–makes no sense to me.  A fuller explanation would not require them to admit the obvious–that the U.S. is carrying out drone strikes on other countries’ sovereign territory; all they would need to do is to clarify the principles that “theoretically” govern such attacks on combatants outside a traditional war zone. Nor would Al Qaeda learn anything of operational value if the administration were to explain with greater clarity and precision its views on the issues we are discussing in this exchange.

When I hear U.S. officials make their usual arguments about secrecy, I sometimes want to say:  “What are you afraid of–that it would be lights out for the Free World if enemy lawyers got a hold of your legal reasoning?” Indeed, what they ought to be afraid of is that those “enemy lawyers” will assume the U.S. believes there are no limits.  And advise their governments accordingly.

So if the ACLU/CCR effort compels the administration to be clearer, it will have served a purpose all of us seek. But it shouldn’t take a lawsuit. All that should be required is a mature sense of where the U.S. national interest lies.