The University of Pennsylvania Law School will host a high-level panel examining the critical legal and policy questions associated with drone warfare. Experts will explore the tension between national defense and counterterrorism goals and American commitment to checks and balances and the rule of law.
Michael A. Fitts, Dean and Bernard G. Segal Professor of Law, Penn Law
Mark Mazzetti, Intelligence Correspondent, New York Times; author, The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth
Claire Finkelstein, Professor of Law and Philsophy; Director, Center for Ethics & Rule of Law, Penn Law; co-author, Targeted Killings: Law and Morality in an Asymmetrical World
Peter W. Singer, Senior Fellow and Director, Center for 21st Century Security and Intelligence, Brookings Institution
This event is free and on the record.
The program has been approved for 1.5 credit hours of substantive law credits for Pennsylvania lawyers and may be likewise approved through reciprocity in other jurisdictions as well. For CLE credit, please bring a check made out to the Trustees of the University of Pennsylvania in the amount of $25.00.
Register for this event
Drone Wars: The Future of Targeted Killings & Presidential Power
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Lawful Military Support To Civil Authorities In Times of Crisis
JURIST Guest Columnist Kevin Govern of the Ave Maria School of Law reveals the history behind recent changes to law and policy which will affect the involvement of military forces with civilian domestic law enforcement…
Presented at 2013 UPenn CERL Sovereignty and the New Executive Authority Symposium
Rudolph C. Barnes, Jr. © 2013.
All rights reserved. (draft 2/13/2013)
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.
The Editorial Board of The Military Legitimacy Review (MLR – formerly The Military Legitimacy and Leadership Journal of 2009 & 2010) is pleased to publish the 2012 second compendium issue, available via the linked URL above. The focus of the MLR is on peacetime military operations—those operations other than war such as counter-insurgency, stability operations and nation-building (see About Us). Combat is often an integral part of peacetime military operations, especially in the early stages, but strategic success is more dependent upon achieving political objectives than military objectives, and superior military force is never a substitute for the lack of legitimacy. In fact, large deployments of US combat forces and the use of excessive force in hostile cultural environments can turn a military victory into political defeat.
The 2012 issue of MLR includes the following announcement and these items of timely and insightful scholarship:
- Barnes-Wall Foundation of South Carolina Award 2012 Announcement
- Targeted Killing and Just War: Reconciling Kill-Capture Missions, International Law, and the Combatant Civilian Framework By: Louis Guard.
- Back to the Future: Human Rights and Legitimacy in the Training and Advisory Mission By: Rudolph C. Barnes, Jr.
- Strengthening the Rule of Law in the Local Community: SOF, Customary Justice, and Human Rights By: David S. Gordon
and by Kevin H. Govern:
- Asymmetric Warfare: The Strait of Hormuz and Future Crises
- The ‘Great Game’ & the US-Afghan Strategic Partnership Agreement
Your submissions are very welcome for the 2013 issue of the MLR. Submissions via email are preferred, in any typset or font, double or single spaced, but in MS Word (.doc or .docx) formats, please, on subjects for which the MLR readership has a desire and indeed a need to know. Send proposed submissions to: MLR Editor-in-Chief: Kevin Govern via e-mail to: Info@MilitaryLegitimacyReview.com
The Editorial Board will consider your items for publication; if your submission is selected and your agreement to publish is obtained, your item will appear immediately thereafter online at http://militarylegitimacyreview.com, and in an end-of-year compendium similar to the linked issue above and previous issues.
JURIST Guest Columnist Kevin Govern of the Ave Maria School of Law says says the US must pursue a full spectrum of “smart power” capabilities in Africa, to include but not be limited to the use of drones for surveillance or targeted killing strikes. He concludes that as military and diplomatic initiatives challenge AQIM [al Qaeda in the Islamic Maghreb] and other threats to internal and regional security in North Africa and beyond, the US must pursue a full spectrum of “smart power” capabilities, to include but not be limited to the use of drones for surveillance or targeted killing strikes. In every possible instance, the US should partner with African host nations and allied forces. In that manner, the US can fulfill ambitious policy goals to “add value” while advancing US and African economic, security and development policies.
Kevin Govern, Drone Operations in Current US Counterterrorism Strategy, JURIST – Forum, Feb. 11, 2012, http://jurist.org/forum/2013/02/kevin-govern-drones-counterterrorism.php
read Chapter 13 in Targeted Killings: Law and Morality in An Asymmetrical World, Edited By Claire Finkelstein, Jens Ohlin and Andrew Altman (Oxford: Oxford University Press, 2012),
and visit the University of Pennsylvania Center for Ethics and the Rule of Law (CERL) Site and Cornell Law Professor Jens Ohlin’s Lieber Code Site.
Back to the Future: Human Rights and Legitimacy in the Training and Advisory Mission
Special Warfare January-March 2013 Volume 26 | Issue 1
Democracy and human rights have long been promoted as the ideals of U.S. foreign policy, with the rule of law being the glue that holds democracy and human rights together. But law can be a means of tyranny in the wrong hands, and democracy can produce a tyranny of the majority, as our founding fathers warned and as we are now witnessing in the Middle East and in North Africa. Human rights are what give legitimacy to democracy and the rule of law. Human rights protect the freedoms of minorities in a democracy, but they are meaningless without the rule of law.
Sovereignty and the Rule of Law
The concept of sovereignty is the core attribute of the modern state. It has an “inside” face—the relation of the state to its citizens—and an “outside” face—the relation of states to other states. With regard to the inside face, when the concept first emerged in Seventeenth Century Europe, it imported a reconceptualization of state authority, and was accompanied by a transformation in the understanding of the relationship between individuals and political authority
In today’s politics, where concerns about national security dominate public policy debate, the concept of sovereignty is once more under reassessment. The expansion of executive authority in times of emergency has been a central theme of republican defense of the interrogation tactics of the Bush Administration. It has also, however, been an important component in justifying the legitimacy of drone strikes under Obama. The following questions suggest themselves as ripe for reexamination in light of changing conceptions of sovereignty:
How does the rise of powerful, organized terrorist groups affect the claims to sovereignty of a state? For instance, if a state harbors aggressive groups within their territory, can those under threat violate sovereignty to take action against the threat? And what standards are appropriate for judging when, if ever, such an attack would be proper?
What are appropriate limitations on national security initiatives on foreign territory? For example, is unauthorized drone activity in a territory a violation of sovereignty? Is it proper for a government to authorize foreign operations within their territory without the knowledge of the people of that country?
When war expands past any territorial boundaries, does the concept of sovereignty still play a role? Do governments have claims to sovereignty have claims to sovereignty in cyberspace?
How ought we to reconcile national security with the concept of international law enforcement? Does the idea that all states are sovereign relative to one another force all efforts to protect against attacks into the domain of the Law of Armed Conflict? Can international law enforcement supply an alternative to the militarization of the effort to combat terrorism?
Sovereignty and the New Executive Authority will address these and other questions in an interdisciplinary discussion among scholars from different backgrounds, as well unite theoretical and practical perspectives.