Our Attorney General Eric Holder and I do not see eye to eye on much of anything, but I may have to join him on one issue. He will be unveiling the Obama administration's legal rationale for targeted killing of terrorists, including that of US citizen Anwar Awlaki, today in a speech in Chicago. I applaud the administration for making this case and hope they put forth a strong position supporting the policy over all. A very strong case in favor exists, and my friend and colleague Brad Patty discussed it in a paper we wrote in January of 2010. The particulars still apply, so I will post it here and we will update tomorrow after hearing what Mr. Holder has to say. Universal Jurisdiction & Targeted Killing Our ability to eliminate terrorist threats is in jeopardy from trans-national organizations that can attempt to claim “Universal Jurisdiction” over targeted killings of terrorists. In order for our operations to continue, we must reassert and support the long standing legal justifications for these legitimate actions of self defense. We should also pursue an international treaty on terrorism that mirrors existing conventions on piracy. The most successful part of our strategy and operations in Afghanistan and Pakistan has been the drone strikes against al Qaeda and Taliban leadership. We have killed hundreds of them severely degrading their command and control and ability to plan and conduct operations. Many of these strikes have taken place in the tribal areas of Pakistan, and some have questioned whether we have legal authority to conduct targeted killings of al Qaeda and Taliban members there. According to US law, that authority is spelled out specifically in the "Authorization for Use of Military Force" (AUMF) passed by Congress after the 9/11 attacks. (a) IN GENERAL- That the President is authorized to use all necessary andappropriate force against those nations, organizations, or persons he determinesplanned, authorized, committed, or aided the terrorist attacks that occurred onSeptember 11, 2001, or harbored such organizations or persons, in order toprevent any future acts of international terrorism against the United States bysuch nations, organizations or persons. That is unequivocal and puts no geographic boundaries on the authority. The AUMF places our actions within the framework of the laws of war, and relates to 9/11 actors and enablers. The authority is specific to the 9/11 attacks and the organizations that supported their planning and execution, as well as those who harbored them. Congress can use its Constitutional power to declare war and extend this authority to act against other groups if it is necessary and proper that they should do so. In other words, our authority to act against these groups, as it is currently exercised, extends from the power of our nation to declare war on its enemies. That relies on our unilateral decision-making and could be bolstered by an international agreement providing that strikes against terrorists do not require any such justification. However, the idea that terrorists, by their very nature, are fair game should be the established norm, even in the absence of any future convention on their targeting. There is a working paper that discusses US authority for these actions at length by Prof. Kenneth Anderson assisted by other members of the Hoover Institution's Task Force onNational Security and the Law. Targeted Killing in U.S. Counterterrorism Strategy and Law On January 23, 2009 a mere three days into his presidency, strikes by Predator drones in the tribal areas of Pakistan destroyed two compounds and killed numerous people, reportedly including a high-value target. Strikes continued, even expanded, over the successive months, and administration officials made clear that they had no plans to curtail them— even as they reined in coercive interrogations and announced the closure of Guantánamo Bay...... But thereʼs a paradox in Obamaʼs embrace of targeted killing: Even as the strategic and humanitarian logic for it increases in persuasiveness, the legal space for it and the legal rationales on which it has been traditionally justified are in danger of shrinking. They are at risk of shrinking in ways that might surprise members of Congress and the Obama Administration. And they are at risk of shrinking through seemingly innocuous, unrelated legal policy actions that the Obama Administration and Congress might be inclined to take in support of various political constituencies, usually related to broadly admirable goals of human rights and international law. American domestic law—the law codifying the existence of the CIA and defining its functions—has long accepted implicitly at least some uses of force, including targeted killing, as self-defense toward ends of vital national security that do not necessarily fall within the strict terms of armed conflict in the sense meant by the Geneva Conventions and other international treaties on the conduct of armed conflict. Categories of the use of force short of armed conflict or war in a juridical sense—by intelligence services such as the CIA, for example—or by military agents in furtherance of national self defense and vital security interests, yet outside of the legal condition of armed conflict, date back in codified law to the founding of the CIA and, in state practice by the United States and other sovereigns, far further still. Yet as a matter of legal justification, successive administrations have already begun to cede this ground. Even the Bush Administration, with its unrivaled enthusiasm for executive power, always sought to cast its killing targets as the killing of combatants in what it legally characterized as armed conflicts, governed by the laws of war on the conduct of hostilities, known as“international humanitarian law” (IHL). This concession, however, if followed by the Obama Administration and beyond, will likely reduce the practical utility of a policy and security tool of both long- standing provenance and proven current value. It will likely reduce the flexibility of the United States to respond to emerging threats before they ripen into yet another war with non-state terrorists, and it will reduce the ability of the United Sates to address terrorist threats in the...
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Mar 05 2012, 04:48 AM
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