Kevin Govern, Warrant Based Targeting:
Prosecution-Oriented Capture And Detention As Legal And Moral Alternatives
To Targeted Killing, Arizona Journal of International & Comparative Law
Vol. 29, No. 3, (2012)(published 2013).

Targeted killing has had significant political and military repercussions around the world in recent years, especially in the wake of 2011 operations against Osama bin Laden and Anwar al-Aulaqi. By contrast, adapting a time-tested, prosecution-oriented strategy to capture rather than to kill, warrant-based search and detention became the de jure required modality of dealing with insurgents and criminals alike in Iraq prior to coalition troop withdrawal. Use of search and detention, called “warrant-based targeting” since 2008, is also an emergent trend in combined and interagency operations, not only in present-day Afghanistan, but also in the international arena as a military adaptation to the prosecution-support function.

Despite popular misconceptions of an inherently bellicose connotation to the words target or targeting, the Department of Defense (DOD) defines target as: “An entity or object considered for possible engagement or other action,” and “[i]n intelligence usage, a country, area, installation, agency, or person against which intelligence operations are directed,” and defines targeting as: “The process of selecting and prioritizing targets and matching the appropriate response to them, considering operational requirements and capabilities.” Warrant-based targeting, then, considers persons for possible intelligence and law enforcement engagement as targets for possible arrest and prosecution, rather than persons to be fired upon or engaged with the use of force.

Compelled by strategic necessity, the U.S. military has quietly adapted its procedures to search at the point of capture, and to detain using conventional and Special Operations Forces (SOF) organizational structures in the field, in order to maximize the prospects for host-nation prosecutions—all contrary to conventional wisdom about the incompatibility of such efforts with the military’s mission of “template-able aim points for easy targeting and destruction.” Warrant-based targeting follows a guiding principle of military forces working alongside domestic and international security forces. Together, those forces assess threats, build credible bases for judicially-issued criminal arrest warrants, seek those warrants, apprehend suspects pursuant to those warrants while collecting evidence for prosecution, then hand off apprehended individuals along with evidence collected to competent civilian judicial and correctional authorities. As contrasted with proceedings pursuant to military tribunals, such an undertaking necessarily involves the effective use of information to seek a civilian judicial warrant for arrest, and works best in systems where transparent judicial processes militate against secrecy and promote public accountability.

This article examines warrant-based targeting and key lessons learned with respect to such operations, and proposes future locales where it might be effectively employed. Part II is an initial review of historical, warrant-based targeting examples that follows commentary on legal and operational matters making warrant-based targeting both necessary and proper in Iraq from 2009 onward. Part III discusses specific tactics, techniques, and procedures (TTP) involved in warrant-based targeting in Iraq, now carried over to operations in Afghanistan. From a broader perspective, and in order to apply warrant-based targeting beyond Iraq and Afghanistan, Part IV’s key lessons regard military cooperation with domestic law enforcement and judicial authorities. These lessons include: the necessity for proper collection and processing of forensic evidence; the inherent dilemma of military forces performing law enforcement roles; and the necessity to overcome a mindset that the military reaches “mission accomplished” status merely when it obtains the requisite warrant, collects evidence, and then carries out an arrest. Part V establishes what, in a world of ever-changing circumstances, the rule of law has come to mean and why warrant-based targeting matters to advancing the rule of law. Concluding comments in Part VI consider why this methodology is a meaningful, albeit complicated, alternative to the expediency of targeted killing.

BARNES-WALL FOUNDATION OF SOUTH CAROLINA AWARD 2013
ANNOUNCEMENT

The Military Legitimacy Review (MLR) is pleased to announce that the Barnes-Wall  Foundation of South Carolina, after careful consideration and deliberation, has selected for its 2013 scholarship award Ave Maria School of Law Class of 2013 Juris Doctor degree recipient Michael Sahadi’s work entitled:

KEEPING JSOC A SECRET
The Exposure of Special Warfare and its Adverse Effects on National Security and Defense to the United States

The Barnes Foundation, through the efforts of the MLR and also from recommendations of university and law faculty professors, sought nominations for this award amongst many deserving student-candidates. Mr. Sahadi was a scholar in the military law seminar at Ave Maria School of  Law when he completed this superb work regarding secrecy requirements in U.S. counterterrorism efforts, and was selected by Professor of Law Kevin Govern and Colonel (retired) Rudy Barnes Jr. to receive the Barnes-Wall Award.

The award includes publication in MLR as well as a monetary prize ($500.00) given in this second annual competition to Mr. Sahadi for having written the best paper on a topic related to military legitimacy.

The award is not intended to recognize a paper for academic credit in an independent study, but an award for the best paper in a class or group of 3 or more. The topic and paper should relate to legal and moral issues in military operations and/or strategy (e.g. democracy, human rights and the rule of law, and religion/cultural issues), with the winning paper being posted with the author’s permission on the Military Legitimacy Review (MLR) website at http://militarylegitimacyreview.com/

With this award a new cycle for 2014 begins, with submissions solicited for the next year’s competition encouraged and accepted through April 7th, 2014. For additional details please contact the Editor in Chief of the MLR, Professor of Law Kevin Govern, via info@militarylegitimacyreview.com  and / or khgovern@avemarialaw.edu  for additional details.

Presidential Policy Directive: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities

Published May 23, 2013
http://www.cfr.org/counterterrorism/presidential-policy-directive-us-policy-standards-procedures-use-force-counterterrorism-operations-outside-united-states-areas-active-hostilities/p30773

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Presidential Policy Directive: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities

President Obama signed this directive on May 23, 2013, which he said in a speech at the National Defense University is a framework that governs the use of force by United States against terrorists.

Since his first day in office, President Obama has been clear that the United States will use all available tools of national power to protect the American people from the terrorist threat posed by al-Qa’ida and its associated forces. The President has also made clear that, in carrying on this fight, we will uphold our laws and values and will share as much information as possible with the American people and the Congress, consistent with our national security needs and the proper functioning of the Executive Branch. To these ends, the President has approved, and senior members of the Executive Branch have briefed to the Congress, written policy standards and procedures that formalize and strengthen the Administration’s rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities. Additionally, the President has decided to share, in this document, certain key elements of these standards and procedures with the American people so that they can make informed judgments and hold the Executive Branch accountable.

This document provides information regarding counterterrorism policy standards and procedures that are either already in place or will be transitioned into place over time. As Administration officials have stated publicly on numerous occasions, we are continually working to refine, clarify, and strengthen our standards and processes for using force to keep the nation safe from the terrorist threat. One constant is our commitment to conducting counterterrorism operations lawfully. In addition, we consider the separate question of whether force should be used as a matter of policy. The most important policy consideration, particularly when the United States contemplates using lethal force, is whether our actions protect American lives.

Preference for Capture
The policy of the United States is not to use lethal force when it is feasible to capture a terrorist suspect, because capturing a terrorist offers the best opportunity to gather meaningful intelligence and to mitigate and disrupt terrorist plots. Capture operations are conducted only against suspects who may lawfully be captured or otherwise taken into custody by the United States and only when the operation can be conducted in accordance with all applicable law and consistent with our obligations to other sovereign states.

Standards for the Use of Lethal Force
Any decision to use force abroad – even when our adversaries are terrorists dedicated to killing American citizens – is a significant one. Lethal force will not be proposed or pursued as punishment or as a substitute for prosecuting a terrorist suspect in a civilian court or a military commission. Lethal force will be used only to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively. In particular, lethal force will be used outside areas of active hostilities only when the following preconditions are met:

First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.

Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

Third, the following criteria must be met before lethal action may be taken:

1. Near certainty that the terrorist target is present;
2. Near certainty that non-combatants[1] will not be injured or killed;
3. An assessment that capture is not feasible at the time of the operation;
4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
5. An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally – and on the way in which the United States can use force. The United States respects national sovereignty and international law.

U.S. Government Coordination and Review
Decisions to capture or otherwise use force against individual terrorists outside the United States and areas of active hostilities are made at the most senior levels of the U.S. Government, informed by departments and agencies with relevant expertise and institutional roles. Senior national security officials – including the deputies and heads of key departments and agencies – will consider proposals to make sure that our policy standards are met, and attorneys – including the senior lawyers of key departments and agencies – will review and determine the legality of proposals.

These decisions will be informed by a broad analysis of an intended target’s current and past role in plots threatening U.S. persons; relevant intelligence information the individual could provide; and the potential impact of the operation on ongoing terrorism plotting, on the capabilities of terrorist organizations, on U.S. foreign relations, and on U.S. intelligence collection. Such analysis will inform consideration of whether the individual meets both the legal and policy standards for the operation.

Other Key Elements
U.S. Persons. If the United States considers an operation against a terrorist identified as a U.S. person, the Department of Justice will conduct an additional legal analysis to ensure that such action may be conducted against the individual consistent with the Constitution and laws of the United States.

Reservation of Authority. These new standards and procedures do not limit the President’s authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies.

Congressional Notification. Since entering office, the President has made certain that the appropriate Members of Congress have been kept fully informed about our counterterrorism operations. Consistent with this strong and continuing commitment to congressional oversight, appropriate Members of the Congress will be regularly provided with updates identifying any individuals against whom lethal force has been approved. In addition, the appropriate committees of Congress will be notified whenever a counterterrorism operation covered by these standards and procedures has been conducted.

---

[1] Non-combatants are individuals who may not be made the object of attack under applicable international law. The term “non-combatant” does not include an individual who is part of a belligerent party to an armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of national self-defense. Males of military age may be non-combatants; it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants.

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

Since his first day in office, President Obama has been clear that the United States will use all available tools of national power to protect the American people from the terrorist threat posed by al-Qa’ida and its associated forces.  The President has also made clear that, in carrying on this fight, we will uphold our laws and values and will share as much information as possible with the American people and the Congress, consistent with our national security needs and the proper functioning of the Executive Branch.  To these ends, the President has approved, and senior members of the Executive Branch have briefed to the Congress, written policy standards and procedures that formalize and strengthen the Administration’s rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities.  Additionally, the President has decided to share, in this document, certain key elements of these standards and procedures with the American people so that they can make informed judgments and hold the Executive Branch accountable.

This document provides information regarding counterterrorism policy standards and procedures that are either already in place or will be transitioned into place over time.  As Administration officials have stated publicly on numerous occasions, we are continually working to refine, clarify, and strengthen our standards and processes for using force to keep the nation safe from the terrorist threat.  One constant is our commitment to conducting counterterrorism operations lawfully.  In addition, we consider the separate question of whether force should be used as a matter of policy.  The most important policy consideration, particularly when the United States contemplates using lethal force, is whether our actions protect American lives.

Preference for Capture
The policy of the United States is not to use lethal force when it is feasible to capture a terrorist suspect, because capturing a terrorist offers the best opportunity to gather meaningful intelligence and to mitigate and disrupt terrorist plots.  Capture operations are conducted only against suspects who may lawfully be captured or otherwise taken into custody by the United States and only when the operation can be conducted in accordance with all applicable law and consistent with our obligations to other sovereign states.

Standards for the Use of Lethal Force
Any decision to use force abroad – even when our adversaries are terrorists dedicated to killing American citizens – is a significant one.  Lethal force will not be proposed or pursued as punishment or as a substitute for prosecuting a terrorist suspect in a civilian court or a military commission.  Lethal force will be used only to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively.  In particular, lethal force will be used outside areas of active hostilities only when the following preconditions are met:

First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.

Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons.  It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

Third, the following criteria must be met before lethal action may be taken:

1. Near certainty that the terrorist target is present;
2. Near certainty that non-combatants[1] will not be injured or killed;
3. An assessment that capture is not feasible at the time of the operation;
4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
5. An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally – and on the way in which the United States can use force. The United States respects national sovereignty and international law.

U.S. Government Coordination and Review
Decisions to capture or otherwise use force against individual terrorists outside the United States and areas of active hostilities are made at the most senior levels of the U.S. Government, informed by departments and agencies with relevant expertise and institutional roles.  Senior national security officials – including the deputies and heads of key departments and agencies – will consider proposals to make sure that our policy standards are met, and attorneys – including the senior lawyers of key departments and agencies – will review and determine the legality of proposals.

These decisions will be informed by a broad analysis of an intended target’s current and past role in plots threatening U.S. persons; relevant intelligence information the individual could provide; and the potential impact of the operation on ongoing terrorism plotting, on the capabilities of terrorist organizations, on U.S. foreign relations, and on U.S. intelligence collection.  Such analysis will inform consideration of whether the individual meets both the legal and policy standards for the operation.

Other Key Elements
U.S. Persons.  If the United States considers an operation against a terrorist identified as a U.S. person, the Department of Justice will conduct an additional legal analysis to ensure that such action may be conducted against the individual consistent with the Constitution and laws of the United States.

Reservation of Authority.  These new standards and procedures do not limit the President’s authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies.

Congressional Notification.  Since entering office, the President has made certain that the appropriate Members of Congress have been kept fully informed about our counterterrorism operations.  Consistent with this strong and continuing commitment to congressional oversight, appropriate Members of the Congress will be regularly provided with updates identifying any individuals against whom lethal force has been approved.  In addition, the appropriate committees of Congress will be notified whenever a counterterrorism operation covered by these standards and procedures has been conducted.

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Drone Wars: The Future of Targeted Killings & Presidential Power

Special comments/instructions:

Lawful Military Support To Civil Authorities In Times of Crisis 

Presented at 2013 UPenn CERL Sovereignty and the New Executive Authority Symposium
by
Rudolph C. Barnes, Jr. © 2013.
All rights reserved. (draft 2/13/2013)

Abstract/Introduction

Sovereignty is about the source and nature of national power, and the rule of law authorizes and limits the exercise of that power.  Military operations are the most coercive extension of that power, and their legitimacy is determined by moral standards that go beyond those of the law.  Religion shapes concepts of sovereignty, law and legitimacy, and this article will explore the pervasive role of religion as it relates to the rule of law and military legitimacy.

Sovereignty and human rights are opposite sides of the same coin; the former is related to the exercise of national power and the latter to legal restraints on that power, and there are contentious issues of legitimacy related to both.  The standards for political and military legitimacy and law can differ dramatically based on religion and culture, especially between Western democratic cultures and Islamic cultures in the Middle East and Africa, and US national security strategy and military operations must take into account these differences.

A strategy that relies on conventional combat operations and clandestine strikes by commandos and drones to counter terrorism is inadequate where terrorist threats have broad public support in Islamic cultures.  To counter such threats direct (hard) US military capabilities must be balanced with more indirect (soft) capabilities—trainers and advisors who can bridge the gap between the limits of diplomacy and combat operations.  In Islamist cultures where US personnel are considered infidels, they must be diplomat-warriors who can lead from behind with indigenous forces out front conducting lethal operations.

These diplomat-warriors must not only train their indigenous counterparts in military matters but also promote the ideals of democracy and the rule of law in hostile cultural environments.  They must ensure compliance with fundamental human rights while respecting local standards of legitimacy that can condone honor killings, brutality to women, discrimination against non-Muslims and violations of the freedoms of religion and expression.  This can create a mission impossible for US trainers and advisors whose mission success requires rapport with their indigenous counterparts.

Military capabilities enable a nation to go to war, but their ultimate purpose is to preserve the peace.  The wars in Iraq and Afghanistan and the emergence of democracies in the Middle East and Africa have underscored the volatile relationship between religion, the rule of law and military legitimacy.  It is obvious that there can be no lasting peace among nations without peace among religions, and religious reconciliation requires that Jews, Christians and Muslims find common ground in matters of religion, law and legitimacy.   A common word of love for God and neighbor in the greatest commandment represents such common ground and offers the hope of finding lasting peace in a world where religions continue to promote hate and violence.

Barnes_Religion, the Rule of Law and Military Legitimacy