On Friday, April 6, 2012 I will be participating in a debate at The University of California, Davis School of Law. The topic is "America's Reach: The Constitutionality of Targeted Killing." The speech is sponsored by the ACLU and the Federalist Society.
On Tuesday, April 3, 2012 I will be participating in a debate at The University of Houston Law Center. I’ve posted details from the flyer below.
Now available on SSRN is my newest piece, Are Targeted Killings Unlawful? A Case Study in Empirical Claims Without Empirical Evidence. In the piece I argue that critics of the U.S. policy of targeted killing by unmanned aerial vehicles (UAVs or drones) generally lack credible information to justify their critiques. In fact, in many circumstances their claims are easily refuted, calling into question the reliability of their criticisms. I highlight some of the most striking examples of inaccurate claims raised by critics of the U.S. policy of drone based targeted killing. Specifically, I offer a much needed corrective to clarify the public record or offer empirical nuance where targeted killing critics offer only unsubstantiated and conclusory statements of fact and law.
Section I discusses the decision protocol used by the U.S. military before launching a drone strike, a process that goes to extraordinary lengths to minimize civilian casualties. Although this decision protocol was once secret, recent litigation in federal court has resulted in the release of extensive information regarding U.S. targeting protocols. An analysis of this information indicates that the U.S. military engages in an unparalleled and rigorous procedure to minimize, if not eliminate entirely, civilian casualties. Although independent empirical evidence regarding civilian casualties is hard to come by, it is certainly the case that statistics proffered by some critics cannot be empirically verified; their skepticism of U.S. government statements is not backed up by anything more substantial than generic suspicion.
Section II addresses the critics’ unsubstantiated claims about the legal, diplomatic and strategic results of drone strikes. Although the counter observations I raise do not, by themselves, demonstrate that targeted killings are morally or legally justified, they do however suggest that some of the moral or legal objections to targeted killings are based on empirical claims that are either dubious, impossible to verify, or just plain false.
Other contributors to the book Targeted Killing: Law and Morality in an Asymmetrical World (Oxford 2012) appear in the Table of Contents below:
I just posted to SSRN the abstract for my chapter New Approaches to Reducing and Mitigating Harm to Civilians which will appear in the Oxford University Press book, Shaping a Global Legal Framework for Counterinsurgency: New Directions in Asymmetric Warfare (William C. Banks ed., 2012). The abstract appears below.
The wars in Iraq and Afghanistan highlighted the strategic importance of the U.S. commitment to civilian protection. Both wars were eventually fought as a counterinsurgency (COIN) and both revealed how protecting civilians is a central feature of COIN. This chapter examines the importance of civilian casualty mitigation in U.S. counterinsurgency operations, it describes the theoretical and practical lessons learned regarding civilian casualties and situates them in a broader strategic context. The chapter also describes the U.S. military’s newest doctrinal publication aimed specifically at preventing and mitigating harm to civilians.
The chapter concludes noting that protecting the population and winning hearts and minds are well known central planks in counterinsurgency theory. However, achieving these goals is oftentimes harder said than done, especially when the reality of modern operations is a transparent conflict environment in which enemy forces will seek to purposefully cause harm to civilians, and exploit such harm for their own ends. Based on America’s experiences in Iraq and Afghanistan, the U.S. military has created the world’s first manual directed at preventing and mitigating harm to civilians in combat. As the discussion in this chapter highlights, the manual is merely the first step in cataloging and sharing lessons learned.
Effective civilian casualty mitigation in counterinsurgencies and other operations will require sustained efforts on the part of the military to act in a way that may exceed the baseline requirements of the law of armed conflict. Ample evidence –ranging from restrictive rules of engagement to a consistent focus on “lessons learned”– suggests the U.S. military is already exceeding the requirements of the law of armed conflict. Such actions may not placate critics of U.S. operations, but it may go a long way toward laying the foundation for success in counterinsurgency operations.
For more about the CIVCAS Mitigation manual see Spencer Ackerman’s post Army Writes New Manaul on Preventing Civilian Deaths here.
Over at Forbes, where I write a column on Law, Policy and National Security, I’ve posted a piece entitled NDAA May Put Defense Contractors In Prison For Counterfeit Parts. Here is an excerpt:
The NDAA, which was passed earlier this year, shifts the burden to contractors to screen their equipment for counterfeit parts. This regulatory approach is similar to the burden shifting approach being debated for cyber security legislation. However, unlike the proposed cyber security legislation, the provisions of the NDAA include civil and criminal penalties with the possibility of life in prison for those whose recklessness with regard to counterfeit parts results in death.
The NDAA addresses counterfeit parts in Section 818, specifically requiring DoD “conduct an assessment of Department of Defense acquisition policies and systems for the detection and avoidance of counterfeit electronic parts.” Following that assessment, DoD must:
- establish Department wide definitions for the terms “counterfeit electronic part” and “suspect counterfeit electronic part”
- implement a risk-based approach to minimize the impact of counterfeit electronic parts
- establish a process for analyzing, assessing, and acting on reports of counterfeit electronic parts and suspect counterfeit electronic parts
The legislation’s provisions require DoD to promulgate regulations that:
- make contractors “responsible for detecting and avoiding the use or inclusion of counterfeit electronic parts or suspect counterfeit electronic parts in such products and for any rework or corrective action that may be required to remedy the use or inclusion of such parts”
- prohibit contractors from passing those costs off to DoD as allowable costs under their contracts
- creates a safe harbor provision for contractors to avoid civil liability if they take reasonable efforts to avoid counterfeit parts or if they become aware of counterfeit parts report such parts to DoD within 60 days of detection
On Friday February 3 and Saturday February 4th the Santa Clara Law school will host a symposium on International Humanitarian Law. I will be serving as a moderator for Panel 3. The full schedule appears below, and more information about the symposium can be found here.
The 2012 Santa Clara Journal of International Law Symposium- Emerging Issues in International Humanitarian Law
Friday, February 3 and Saturday, February 4, 2012
HOSTED BY:
Santa Clara University School of Law
Santa Clara Journal of International Law
Center for Global Law & Policy
Symposium Schedule
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Over at Lawfare I’ve posted a short summary of my collateral damage piece. You can access the summary here.
To give you a feel for the flavor of the blog post, here is my concluding paragraph:
“Taken together, the CDM process provides predictions about likely effects, and the ROE specifies the decision authority necessary to authorize certain strikes. The process, as I explain it in the paper, is far more detailed and accountable than that which has been described by most commentators. I should caution that this blog post differs a bit from the article. I’m making the point here that most critics have largely ignored the levels of accountability and procedural care I describe in the paper, I don’t make that claim in the article mostly because I’m limiting it to an empirical description of the process. I do think it’s important to highlight that many commentators have not fairly described the military’s process despite the fact that most of the documents I rely upon were available on the internet, were released to the ACLU in the al Aulaqi litigation, or were published by WikiLeaks (although synthesizing them and supplementing them with interviews was a big challenge). In some respects the military can be faulted for not adequately explaining their very defensible procedures to the public. In any case, irrespective of your opinion about the merits of targeted killing, I’m hopeful my paper provides the foundation necessary for scholars and commentators to build upon, and I hope it serves as a helpful corrective to the descriptions of state practice currently circulating in public commentary.”
Ben Wittes, writing at Lawfare was kind enough to pen a write-up on my empirical paper The U.S. Practice of Collateral Damage Estimation and Mitigation. I consider this a high honor. Here is Ben’s take:
Whatever your view of the merits of targeted killing, this article, in my view at least, will enrich your understanding of the way targeting is done. It should be required reading for anyone participating in the many debates surrounding targeted killing. While it deals only with the military, not the CIA, and only with strikes that are reviewed in advance–and thus does not present a complete picture of U.S. targeting practices–it does give a rich sense of the methodological care and seriousness with which the military approaches the problem of collateral damage.
Check out the full post here.
