The Year in Review – 2013 Posts

Call for Papers– 2014 Cadet/Student Conference on Terrorism, Insurgency, Cyber and Asymmetric Conflicts | Combating Terrorism Center at West Point

http://www.ctc.usma.edu/posts/call-for-papers-2014-cadetstudent-conference-on-terrorism-insurgency-cyber-and-asymmetric-conflicts

Call for Papers– 2014 Cadet/Student Conference on Terrorism, Insurgency, Cyber and Asymmetric Conflicts

Oct 04, 2013

CDT Conference call for papers 2014

The Combating Terrorism Center’s (CTC) third Cadet/Student Conference on Terrorism, Insurgency, Cyber and Asymmetric Conflicts will be held at West Point, New York on April 1-2, 2014. The conference aims to provide a high-level forum for undergraduate and graduate students to present research focusing on the characteristics, causes and implications of terrorism and insurgency, as well as on broader issues related to asymmetric conflicts. The audience and discussants will consist of CTC/West Point faculty and prominent experts in the field.
The CTC will cover travel and lodging costs. In addition, selected high quality papers will be published as a special report of the CTC.

Students interested in participating in the conference are invited to submit formal proposals via email to Dr. Arie Perliger at arie [dot] perliger [at] usma [dot] edu, or in hardcopy to the CTC, Lincoln Hall, 607 Cullum Road, West Point, NY 10996. A proposal should include the paper title, abstract or tentative manuscript, and brief biographical information.

Law Review Commons Announcement

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Law Review Commons

We’re pleased to announce a new portal for open-access legal scholarship: the Law Review Commons (http://lawreviewcommons.com).  The site brings together a growing collection of law reviews and legal journals in an easily browsable and searchable format.  It contains both current issues and archival content spanning over 100 years from nearly 150 law reviews.

Read more about the Law Review Commons on the DC Telegraph (http://blog.digitalcommons.bepress.com/2013/08/21/announcing-the-law-review-commons/), and browse the site at http://lawreviewcommons.com.

Best,

Ann

Ann Taylor
Director of Outreach and Scholarly Communications
bepress
ataylor@bepress.com
(510) 665-1200 x174
www.bepress.com

bepress: the frontier of scholarly publishing since 1999

Check out IR success stories on the DC Telegraph at http://blog.digitalcommons.bepress.com

 

2014 Barnes-Wall Scholarship Award Application Announcement

                   BARNES-WALL FOUNDATION OF SOUTH CAROLINA AWARD 2013
ANNOUNCEMENT AND 2014 COMPETITION

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 Military Legitimacy Review (MLR), Professor of Law Kevin Govern, via info@militarylegitimacyreview.com  and / or khgovern@avemarialaw.edu  for additional details.

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/

This year, the MLR was pleased to announce that the Barnes-Wall  Foundation of South Carolina, after careful consideration and deliberation, had 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.

 

 

Humanitarian Crisis, Geo-politics and the Dilemma Facing Congress

September 4, 2013

by Amos Guiora

https://today.law.utah.edu/projects/humanitarian-crisis-geo-politics-and-the-dilemma-facing-congress/

Guiora Photo 8-2012

In the days ahead, the Obama Administration will make a concerted and determined effort to convince Congress to authorize US military action in Syria. While the outcome, as these lines are penned, is unknown odds are Congress will vote in the affirmative, albeit not by a wide majority. Much will depend on the exact language of the President’s authorization request.

No doubt, collective and individual recollection of the broad, in reality too broad, language of the Authorization to Use Military Force (AUMF) in the aftermath of 9/11 will weigh heavily as will the so-called “war fatigue” that has become a phrase of choice in explaining hesitation for committing US forces.

Similarly, many Members of Congress will view, and subsequently weigh, with skepticism the Obama Administration’s intelligence briefing; after all, George Tenet’s infamous “slam dunk” regarding weapons of mass destruction in Iraq and Colin Powell’s ill-fated and embarrassing appearance in the United Nations will be important reference points in the discussion.

As Congress weighs the Administration’s request it is important that the focus of the debate extend beyond the alleged decision by the Syrian government to use chemical weapons against its own civilian population. Barbaric and horrific as that may be, violating any acceptable standard of law and conduct, Congress and the Administration must focus on the broader national security, international security and geo-political ramifications at stake.

That is, in deciding whether to affirm the President’s request—-regardless of the authorization’s exact language—Congress must not focus on the narrow, albeit horrifying, issue of chemical weapons. Rather, it is the broader questions, perhaps less compelling, that must draw the greatest attention and scrutiny.

In the late stages of World War II, Churchill, Roosevelt, and Stalin created the postwar world; as Churchill correctly predicted, two powerful spheres of influence were created: the United States and the USSR. Those two spheres encouraged, facilitated, and participated in innumerable regional conflicts for over 40 years, under the umbrella of the Cold War. Nonaligned nations, the most powerful being Yugoslavia and Indonesia, sought to carve out a middle ground, often playing east against west.

For the most part, accepted norms, conventions, and treaties dictated both conflict and resolution; recognized principles of international law and mutual deterrence were critical safeguards as both the United States and the USSR recognized and respected the limits of power. In other words, the rules of the game were clearly understood by both protagonists in what was often a chess match with pieces and moves understood and familiar.

On the other hand, 9/11 and its aftermath have significantly contributed to a different type of conflict, best characterized as state/nonstate. Nonstate actors (NSA) unlike nation-states are not beholden to international laws and norms. The decision whether to undertake a particular action is not subject to external obligations and restraints imposed on the nation-state in accordance with international law, treaties, and conventions. In other words, a carefully constructed world order, based on recognized principles of sovereignty, limited self-defense, and international law, has given way to a world filled with more uncertainty than certainty.

That is not to suggest that the pre-9/11 world was devoid of conflict, unmarked by excessive use of force and violations of international law. That would be an incorrect assertion. Nevertheless, recognized mechanisms and infrastructures, established in the aftermath of WWII, were largely effective either in preventing conflict or contributing to resolution. However, horrors visited on civilian populations by nation-states, in the years following WWII, must not be gainsaid. Tragically, the international community was either unable or unwilling to prevent extraordinary violations of international law.

To list the most obvious: Sadaam Hussein’s chemical gas attacks on the Kurds, massacres in Africa, horrors in the former Yugoslavia, and unlimited attacks in Syria. These are but examples of nation-states acting in direct contravention to the rule of law and the international community’s hesitation at best, unwillingness at worst, to protect the innocent civilian population forcefully in accordance with humanitarian principles and obligations.

The above are important in understanding the complicated relationship among geopolitics, international security, national self-interest, sovereignty, and the limits of intervention. Although massacres of innocent civilians disturb the international community, they do not automatically warrant or justify foreign intervention in a domestic crisis, regardless of the tragedy and extent of human suffering. The decision to intervene, reflecting a rationally based assessment model, must weigh global and domestic considerations, reflecting political realities, military strength, and economic capability.

In addressing geopolitics and international security, attention must be paid to national security. Nation-states are members of international alliances and treaties, guaranteeing mutual obligation in the face of armed attack; however, the ultimate responsibility of national leaders is to protect their own civilian population. Therefore, geopolitics must be examined through the dual lens of broader international security and narrow, country-specific security.

The tension between the two is the result of the obvious dichotomy between national priorities and international obligations. This tension, possibly disconnect, between the two is inevitable; internationalization of conflict does not inherently reflect domestic responsibilities and obligations. Accordingly, national leaders are hard-pressed to justify intervention in conflict when national interest is not readily apparent. Nevertheless, the broader context of geopolitics imposes on national leaders the responsibility to recognize that domestic security is interwoven with international security; to ignore the latter affects the former.

Admittedly, the challenges of convincing the domestic electorate that national resources are required to ensure international security are significant. That challenge is compounded when legitimate concerns are raised regarding national priorities, particularly when national leaders confront economic crises requiring attention and resources. Widespread recognition exists regarding globalization and its practical application.

Nevertheless, two significant factors have recently cast a shadow over its viability and sustainability: the Eurozone crisis and domestic opposition to involvement in Iraq and Afghanistan, particularly in the face of the loss of life among military personnel. Sensitivity to the economic crisis and the financial and human cost of intervention is essential when examining the practicality of geopolitics; individually and collectively they test the limits of intervention.

Nation-state decision-making, reflecting predictability and consistency, significantly enhances global order. However, threats, actual or perceived, dramatically affect regional and global stability. In that vein, assessing how nation-states respond, whether unilaterally, bilaterally, or multilaterally, to particular crisis points is essential to understanding the practical impact of geopolitical considerations.

A critical question is what the particular policies developed by the nation-state in the face of crisis are, and whether goals arising from the policy are clearly articulated and objectively attainable. As previously discussed, coherently articulating viable security and international relations policy is essential to effective geopolitics. However, as history has repeatedly demonstrated, many nation-states fail in articulating, much less implementing, policy.

That, in many ways, is the test facing the Administration and Congress in the days ahead.

Amos Guiora is a Professor of Law and Co-Director of the Center for Global Justice at the S.J. Quinney College of Law, the University of Utah. Guiora who teaches Criminal Procedure, International Law, Global Perspectives on Counterterrorism and Religion and Terrorism incorporates innovative scenario-based instruction to address national and international security issues and dilemmas.

Obama says U.S. will take military action against Syria, pending Congress’s approval

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Military Legitimacy Review Editor in Chief Note:

We at this moment ought to quietly think of – and pray for- all in harm’s way involving ongoing events in Syria – and beyond – and also remember the events of more than twenty-two years ago and the Authorization for Use of Military Force Against Iraq Resolution (short title)(PL 102-1) or the Joint Resolution to authorize the use of United States Armed Forces pursuant to United Nations Security Council Resolution 678 (official title), was Congress’ January 14, 1991 authorization of the use of U.S. military force in the Gulf War a/k/a First Gulf War a/k/a Persian Gulf War a/k/a Desert Shield/Storm/Provide Comfort.

President GHW Bush  requested a Congressional joint resolution n January 8, 1991, one week before the January 15, 1991 deadline issued to Iraq specified by the November 29, 1990 UNSCR 678. President Bush had deployed over 500,000 U.S. troops without Congressional authorization to Saudi Arabia and the Persian Gulf region in the preceding five months in response to Iraq’s August 2, 1990 invasion of Kuwait. President Bush said that as Commander-in-Chief he did not need Congressional authorization to use military force against Iraq and that his request for a Congressional joint resolution was merely a courtesy to Congress, and challenged in the case of Dellums v. Bush.

Very Respectfully,
KHG

http://www.washingtonpost.com/world/national-security/obama-set-to-speak-on-syria-in-rose-garden/2013/08/31/65aea210-125b-11e3-85b6-d27422650fd5_story.html


Obama says U.S. will take military action against Syria, pending Congress’s approval

Defense Support of Civilian Authorities

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Smart Power for Hard Problems: The Role of Special Operation Forces Strengthening the Rule of Law and Human Rights in Africa

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Kevin Govern
Smart Power for Hard Problems:
The Role of Special Operation Forces Strengthening the Rule of Law and Human Rights in Africa
1 U. Balt. J. Int’l L. 154 et. seq. (2013).

This article will assess the roles and responsibilities of Special Operations Forces (SOF) within the newly created U.S. Africa Command (AFRICOM) as an active proponent of a so-called “smart power” national security strategy. In particular, it will outline the economic, political, and military challenges faced in Africa; specifically, how and why SOCAFRICA is the U.S. force of choice for promoting human rights and rule of law in Africa. With the goals of the U.S. military in mind, questions will necessarily arise as to “what success looks like” for both the U.S. and African nations, and the roles of each in joint and combined civil–military initiatives. The concluding comments reflect on how these forces must model “what right looks like,” and provide specific modeling failures, and the consequences when that modeling did not take place.

Table of Contents

I.    Special Operations Command — Africa (SOCAFRICA) and “Smart Power” 157

II.   The Economic,Political,and Military Challenges Faced in Africa 162

III.   Surveying SOCAFRICA Efforts to Promote Human Rights and Rule of Law 167

IV.  “Modeling what Right Looks Like” and the Consequences when That Does not Happen 176

V.   Conclusion 180

 

The Perils of Push Button War, Penn Law Journal Summer 2013

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14262_alumnijournalsummer2013_96b71899d6d41013fa5c82f4b8c0ad8b

by Rick Schmitt

As a tool of warfare in the 12th Century, the crossbow stretched the established limits of armed conflict.

Devastatingly effective even at long distances, it could pierce the body armor of a knight at 200 yards, and compared with the English long bow, was easy to operate. Untrained soldiers and even peasants could master the craft in days or weeks. In the stratified world of Medieval Europe, however, noblemen and the church saw the weapon as a threat. Pope Innocent II banned Christian-on-Christian use of the crossbow, calling it “the deadly art, hated by God.” A clause banishing “foreign crossbowmen” from England was included in the Magna Carta.

Today, technology continues to change the face of warfare, again testing legal and ethical boundaries.

Unmanned aerial drones have become central to the Obama Administration’s anti-terrorism policy. A new kind of Cold War has erupted in cyberspace, accounting for daily attacks on private and public networks around the globe, not to mention a story line in the latest James Bond thriller. Serious people are studying “human enhancement” technologies that use drugs and implantable devices to increase soldier performance.

But what are the legal and ethical considerations of conducting a war where the combatant is sitting at a desk in an office half a world from the battlefield? Is a safe and sterile war necessarily a just and ethical one?

http://issuu.com/pennlawits/docs/alumnijournalsummer2013?e=1420149/3656132

PLJSmr2013_PerilsOfPushButtonWar

2013 Barnes-Wall Foundation of South Carolina Award Announcement

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                     MLR Logo

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

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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

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

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

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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.


[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.

President Delivers Major Counterterrorism Speech at National Defense University

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President Barack Obama delivered a major speech at National Defense University on May 23 in which he broadly addressed U.S. counterterrorism policy and efforts, his plans to close the detention facility at Guantanamo Bay, Cuba, and how the United States can defend itself from terrorism while remaining true to its core beliefs.
Photo Credit: Reuters.

 

Read NDU’s statement on the disturbance during the President’s speech.

Read the transcript of the President’s prepared remarks.

Seminar pinpoints how drone policy evolved into heart of CIA strategy

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Afternoon Show  →   Seminar pinpoints how drone policy evolved into heart of CIA strategy

May 21, 2013 01:41

The Army has awarded a $214-million contract for development of an Extended-Range Multi-Purpose unmanned aerial vehicle. The “Warrior” will have the longest range of any UAV system in the Army, and its diesel-powered air vehicle will eliminate the need for a special fuel on the battlefield. Photo Credit: U.S. Department of Defense.

The Army has awarded a $214-million contract for development of an Extended-Range Multi-Purpose unmanned aerial vehicle. The “Warrior” will have the longest range of any UAV system in the Army, and its diesel-powered air vehicle will eliminate the need for a special fuel on the battlefield. Photo Credit: U.S. Department of Defense.

Voice of Russia correspondent Stephen Schaber has the story.
Download

Dr. Michael Fitts: Since 2004, there have been 430 drones strikes at least as far as we know and somewhere between 2,500 and 4,000 individuals have been killed.

Stephen Schaber: That’s University of Pennsylvania Law School Dean Dr. Michael Fitts. He says the use of drones and targeting killings is a hot button topic today.

Dr. Michael Fitts: I think there are few topics that cause more heated discussion than the issue of drones and targeted killings.

SS: Late last week, the University of Pennsylvania Law School hosted a seminar entitled, “Drone Wars: The Future of Targeted Killing & Presidential Power” here in Washington, D.C. Little was talked about in terms of the future of targeted killings, but it did chart the progress of this issue from underutilized policy to one of the most divisive topics today.

Panelist and New York Times intelligence correspondent Mark Mazzetti kicked the discussion off by chronicling the origin of the drone program. He said after 9/11 President George Bush gave the Central Intelligence Agency a sweeping authorization to carry out a “global campaign” against those responsible for the attacks. For an organization focused on espionage, this mandate was a change in mission.

Mark Mazzetti: And this meant that they had lethal authority to go around the world and capture and kill.

SS: The CIA initially caught more than it killed. But Mazzetti says this changed in May 2004.

Mark Mazzetti: There’s really this shake up within the CIA started by this investigation by the Inspector General of the CIA John Helgerson, who in this really devastating report raised the issue maybe the CIA was risking prosecution for torture because of these brutal interrogation methods.

SS: Despite the change, the CIA carried out targeted killings on a limited basis up until July 2008 – perhaps no more than 15.

Instead relying heavily on drone strikes, the agency chose to work with the Pakistanis to eliminate Al Qaeda threat in their country. But strategy didn’t work – the Al Qaeda safe haven remained in Pakistan.

Mark Mazzetti: So July 20, 2008, President Bush signs off a secret order that basically allows the CIA to launch a unilateral war in Pakistan.

SS: And this is where the controversy begins. The drone strike campaign in Pakistan rapidly intensified and without the Pakistanis approval on top of that. It wasn’t long before the targeted killing campaign underwent yet another change.

Mark Mazzetti: The other big change around that time was a movement from what they call personality strikes move toward what they call signature strikes.

SS: Mazzetti said this means going from strikes on specific people to strikes on targets based on patterns of intelligence and activity.

Mark Mazzetti: I don’t make it sound like it’s too haphazard but it certainly has led to many instances where wedding parties, tribal meetings have been hit because it looks suspicious from the air and intelligence on the ground indicates there’s militant activity.

SS: Back in the U.S., the Bush administration revived a legal precedent from the World War II era to justify its targeted killing policy and the War on Terrorism in general. That precedent was unlawful combatancy. And it gave the USA nearly free reign to go after anyone that participated in or aided those that attacked on 9/11, anywhere, at any time. And the courts backed this Bush. They ruled this was not a challengeable issue. University of Pennsylvania Law Professor Claire Finkelstein says, for legal experts, this is a scary prospect

Claire Finkelstein: That, to many, poses a serious problem or challenge to the rule of law.

SS: As for the effectiveness of the targeted killing campaign – it appears the jury is still out.

Brookings Institution Senior Fellow and Director of the Center for 21st Century Security and Intelligence Peter Singer warns there could be serious consequences for the drone strikes campaign.

Peter Singer: Understand everytime you use force, you may get the evil person who deserved to be put in the dirt. But there may also be collateral damage effects on those around them and / or ripple effects in the politics.

SS: Singer added, though, that depending on an individual, there could times when the benefit of the strike outweighs the cost.

Peter Singer: Sometimes it will be worth it to get that high level individual, other times it won’t be worth the blowback effect.

SS: Blowback effect or not, this is a strategy takes out terrorists with no loss of American lives and because of that it looks to continue for the forsseable future.

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Drone Wars: The Future of Targeted Killings & Presidential Power

Posted on
May 16, 2013 | 5:45 PM
The National Press Club

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.

Moderator:

imageMichael A. Fitts, Dean and Bernard G. Segal Professor of Law, Penn Law

Speakers Include:

imageMark 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

imageClaire 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

imagePeter W. Singer, Senior Fellow and Director, Center for 21st Century Security and Intelligence, Brookings Institution

Copies of Mazzetti’s book The Way of the Knife and Finkelstein’s Targeted Killings will be available for sale and for signing by the authors.

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.

Contact

Steven Barnes
sbarnes@law.upenn.edu

Register for this event

Drone Wars: The Future of Targeted Killings & Presidential Power

For information on paying by check, contact:

Lawful Military Support To Civil Authorities In Times of Crisis

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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…

Jurist Forum 02 May 2013

http://jurist.org/forum/2013/05/kevin-govern-posse-comitatus.php

Religion, the Rule of Law and Military Legitimacy

Posted on

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

 

2012 Military Legitimacy Review

Posted on

Military Legitimacy Review 2012

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.

Drone Operations in Current US Counterterrorism Strategy in Africa

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

 

04 FEB 13 Leaked Department of Justice (DoJ) Targeted Killing (TK) “White Paper” and Military Legitimacy?

Please see: Department of Justice (DoJ) Targeted Killing (TK) “White Paper,” 

watch WSJ Online Interview of Prof. Claire Finkelstein regarding leaked DoJ White Paper

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.

COL (R) Barnes on “Back to the Future: Human Rights and Legitimacy in the Training and Advisory Mission”

Back to the Future: Human Rights and Legitimacy in the Training and Advisory Mission
in
Special Warfare January-March 2013 Volume 26 | Issue 1

Back to the Future: Human Rights and Legitimacy in the Training and Advisory MissionDemocracy 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.

SW JAN FEB 13 Coverhttp://www.soc.mil/swcs/swmag/archive/SW2601/index.html

Sovereignty and the Rule of Law – Upcoming Conference – University of Pennsylvania Law School

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.

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