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A Legal and Operational Assessment of Israel’s Targeting Practices

Over the course of 50 days in the summer of 2014, the Israeli Defense Forces conducted a high-intensity air and ground campaign against Hamas in the Gaza strip. Sparked by the murder of three Israeli teenagers by Hamas militants, this short but violent conflict resulted in over 2,100 killed on the Palestinian side, as well as widespread destruction and damage to civilian infrastructure. Israel suffered roughly 70 casualties during the operation, including IDF soldiers killed in battle and Israeli civilians struck by Hamas’ indiscriminate rocket attacks against Israeli population centers, which also took a large psychological toll on terrorized Israeli civilians. This latest chapter in the long saga of conflict between Israel and Hamas provides another salient lesson in the horrors of war, but also a new opportunity to examine the operation of the law of armed conflict principles in practice.

Israel has long resisted publicly revealing its targeting methods and even some of its specific positions on the law of armed conflict (LOAC), fearing that doing so would provide an operational advantage to its adversaries and be exploited by often-critical interlocutors among states and in the international human rights community. This may be changing. Shortly after the conclusion of open hostilities, the IDF invited us to Israel to examine its targeting practices and application of the LOAC. We visited an operational IDF headquarters (the Gaza Division) and observed its targeting cells; reviewed the targeting procedures of both ground and air forces; studied the organization, training, and methodology of the Military Advocate General’s Corps; visited a Hamas attack tunnel; examined combat footage, including the publicly released footage here; and interviewed IDF officers — both legal advisers and operators — at various levels of command.

Our goal was not to assess the just-concluded campaign (Operation Protective Edge), but rather to delve into how the IDF conducts targeting in general from the perspective of individuals who have real-world targeting experience and LOAC expertise. Continue Reading »

Has the Gov’t Under-Charged an al-Qaeda Recruit?: The Ohio case of Abdirahman Sheik Mohamud

An important criminal charge is conspicuously absent in the Indictment of Abdirahman Sheik Mohamud, who is reportedly “the first American accused of returning from Syria with directions to attack inside the United States.” Earlier this month, a federal grand jury in the Southern District of Ohio accepted all three charges submitted by the government:

  • one count of attempting to provide and providing material support to terrorists (18 U.S.C. § 2339A);
  • one count of attempting to provide and providing material support to a designated foreign terrorist organization (Jabhat al-Nusrah) 18 U.S.C. § 2339B); and
  • one count of making false statements to the FBI (18 U.S.C. § 1001(a)(2))

What’s missing? Continue Reading »

News Roundup and Notes: April 24, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

U.S. DRONE STRIKES

A U.S. drone strike inadvertently killed an American and an Italian who had been held hostage by al-Qaeda for years. The January strike targeted an al-Qaeda compound in Pakistan, close to the Afghan border. A U.S. official said the CIA had observed the compound for some time but did not know that the hostages were being kept there. [Reuters’ Will Dunham and Julia Edwards; Wall Street Journal’s Adam Entous et al]

President Obama said he takes “full responsibility for all … counterterrorism operations,” in a statement apologizing to the victims’ families, and added that he has already “directed a full review of what happened.” An initial assessment of the operation indicates that it was “fully consistent” with current guidelines for such missions, the president said. A video is available at the New York Times.

The killing of two American al-Qaeda figures by drone strikes in Pakistan in January “deepens” the ongoing debate over the use of the drone program to target American citizens, writes Mark Mazzetti. The administration said the two, Adam Gadahn and Ahmed Farouq, had not been “specifically targeted.” [New York Times]  J.M. Berger writes that “the rise and decline of [Adam] Gadahn mirrors the trajectory of al-Qaeda after September 11,” and that the “saga of America’s al-Qaeda members may be winding down.” [Politico Magazine] Continue Reading »

Three Quick Thoughts on the Drone Strike in Pakistan That Killed Two Innocent Civilians

Below are my initial thoughts on today’s tragic news that a January 2015 US “targeted killing” drone strike in Pakistan killed two innocent civilians held as hostages by al-Qaeda:

(1) Why the sudden transparency about the American and Italian civilian victims but not the many non-Western civilians killed in US operations? There are dozens of credible reports that the US has killed hundreds of Pakistani and Yemeni civilians. Investigations by the UN, the Open Society Justice Initiative, Human Rights Watch, Amnesty International, the Mwatana Organization for Human Rights, and others, as well as detailed journalist accounts (e.g., see work by Iona Craig, Adam Baron, Saeed Al Batati) provide extensive evidence of civilian deaths and injuries. For years, rights-holders and international civil society have called for the release of information about civilian casualties. At a minimum, those cases should be subject to the same kind of transparency that occurred today. All of those victims and their families should be publicly acknowledged by the US government, provided compensation, and any of their legal attempts to secure accountability should be heard on the merits.

(2) Today’s news also highlights the deficiency of public debate in the US about drones and targeted killings. US officials have long stressed the great precision of drones as a weapon, thoroughness of their (still secret) targeting procedures, and of their “targeted” killings programs in Pakistan and Yemen. The news today is further cause to doubt such statements. It is well past time for a major government review of the entire program.

(3) What precautions were taken, or not taken, before this strike that resulted in civilian deaths? On what kinds of intelligence is the US relying before conducting strikes, and what standards must be met? International humanitarian law requires states to take “all feasible precautions” to prevent civilian casualties when conducting attacks. The news accounts mention that the US will be investigating what led to the deaths revealed today. The results of these investigations should be publicly released, with minimal redactions.

Senator McConnell’s Modest Proposal to Reform Section 215: Don’t!

With only 14 legislative days remaining (in the House, anyway) before Section 215 of the USA PATRIOT Act (which the government argues, and the Foreign Intelligence Surveillance Court has held, provides statutory authorization for the NSA’s bulk telephony metadata program) expires, how should Congress tackle surveillance reform? The answer is easy if you’re Senate Majority Leader Mitch McConnell: don’t.

Late Tuesday, McConnell introduced legislation that would simply extend the existing authority through 2020 (a “clean” reauthorization) — and then used some procedural legerdemain to short-circuit referral of the bill to any of those pesky committees. Of course, neither McConnell’s bill nor his statements in support address any of the concerns raised about Section 215 by, among others, (1) privacy and civil liberties groups; (2) a diverse and bipartisan array of members of both Houses of Congress; (3) the Privacy and Civil Liberties Oversight Board; (4) the President’s own Review Group on Intelligence and Communications Technologies; and (5) the President himself. Nor does the bill do anything with the various far more detailed reform proposals that culminated in the Senate version of the USA FREEDOM Act, which died an ignominious death when it fell two votes short of receiving cloture last fall.

I don’t mean to reopen or rehash the debate over how Congress should reform Section 215 (or various other controversial US surveillance authorities). Rather, I mean only to emphasize how utterly ridiculous McConnell’s proposal actually is: Such a “clean” reauthorization of Section 215, as I explained in an earlier post, would surely be understood as congressional ratification of the precise controversial interpretation of Section 215 that provoked such a firestorm after the phone records program was disclosed by Edward Snowden in June 2013. (After all, unlike in 2010 and 2011, now there can be no question that Congress and the American people are fully aware both of the government’s interpretation of the statute and the FISC’s ratification thereof.)

In other words, McConnell’s “modest” proposal would actually be a significant step backwards for efforts to reform US surveillance law, since it would codify authority that plenty of reasonable people believe that Congress never provided in the first place. More to the point, it would do so even though President Obama and senior officials within the intelligence community are on record that they don’t need such capacious and open-ended authority— and that they can easily live with the modest reforms reflected in the Leahy bill.

As Steven Dennis reports in Roll Call, Sen. Leahy yesterday said that, “This tone deaf attempt to pave the way for five and a half more years of unchecked surveillance will not succeed.” I hope he’s right, and that Congress gravitates instead toward a bill that looks more like the version of the USA FREEDOM Act that died in the Senate last November. Word on the street is that efforts to produce such a bill are afoot. But the clock is ticking…

As the Senate Torture Report Gathers Dust, Is the Obama Administration Giving Torturers De Facto Amnesty?

It has been more than four months since the Senate Intelligence Committee (SSCI) published the summary of its report on the secret detention program operated by the CIA after the 9/11 attacks. Yet today, the official record of what happened in the CIA’s “black sites” is still under wraps. The Committee’s full report sits gathering dust in secure facilities, with even the Justice Department failing apparently to read it, let alone act upon it.

Meanwhile, the SSCI’s work has been met with silence from the Obama administration in terms of any commitment to ensuring accountability and remedies for these crimes. The White House hasn’t even responded to Sen. Dianne Feinstein’s December 2014 recommendations to the Executive Branch for increasing oversight and accountability of the CIA.

This silence becomes particularly acute as the US government prepares for its second Universal Periodic Review at the UN Human Rights Council on May 11. In a report issued this week, Amnesty International finds that the Obama administration is engaging in what amounts to an unlawful de facto amnesty for crimes under international law and an executive encroachment on judicial power in contravention of basic principles guaranteeing independence of the judiciary.  Continue Reading »

News Roundup and Notes: April 23, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

YEMEN

Saudi-led coalition airstrikes resumed yesterday despite announcing the end of Operation Decisive Storm. Coalition warplanes today struck Houthi targets in and around Aden and Ibb, including rebel tanks in villages close to Aden, according to residents. [Reuters]

The resumption of strikes reflects the limits of the Obama administration’s strategy in the Middle East, and the challenges posed in finding a political solution to the crisis. [New York Times’ Eric Schmitt and Michael R. Gordon]

Thousands of Houthi rebels and supporters took to the streets of Sana’a yesterday to protest the Saudi-led coalition air campaign. [Al Jazeera]  A Houthi spokesperson announced the group’s willingness to reengage with UN-sponsored peace talks, but “only after a complete halt of attacks.” [CNN’s Mohammed Tawfeeq et al]

Raw footage shows Saudi military forces firing mortars at apparent Houthi targets close to its frontier with Yemen on April 21. [Wall Street Journal]

Saudi Arabia has proved itself capable of sustaining nearly a month of intensive airstrikes in Yemen, Continue Reading »

Petitions, Human Rights, and Government Service

In recent weeks I was asked to sign a petition circulated by Sarah Cleveland and Mike Posner strongly defending Harold Koh’s role and offering their views on the integrity and value of the human rights’ positions advanced by Harold when he was Legal Advisor at the State Department. In the light of Philip Alston’s post questioning the wisdom of academics countering student petitions, I offer the response I gave to the request for my signature. Like Philip I declare my own interests from the outset. I am a non-American international lawyer who has had the privilege of serving in a government appointed role in another jurisdiction. I have also worked with many of the best human rights lawyers in the world over the years, including owing a deep debt to Michael Posner for the tireless work he undertook as Executive Director of the (then) Lawyers Committee for Human Rights in Northern Ireland during some of the darkest days in the jurisdiction that is my home.

When asked to sign, I articulated a deep discomfort with the petition and the precedent it sets. I strongly believe that any academic should be able (as should any student) to openly and fully raise any issues about the decision(s) a person made while wearing a government lawyer’s hat. The capacity to question and unreservedly critique is particularly important when the decisions made were controversial. I also expressed my discomfort as a non-American international lawyer, echoing the views of many others within and outside the United States, that one can reasonably take the position that the US government and its targeted killing programs breached international and human rights law standards. The bottom line is that I am not fully in a position to judge, but neither really are those students who chose to express their views as they did, nor are the academics who were asked and chose to sign the petition. Petitions that purport to know what is unknowable and not in the public domain are neither good individual defenses, nor are they robust defenses that advance the protection of human rights in the United States or elsewhere.

I believe that the letter sends a real chill to an important open debate. Continue Reading »

Just Security’s Guide to the 2016 Presidential Candidates and National Security

The 2016 presidential election is more than 18 months away, but the races are already heating up with Ted Cruz, Marco Rubio, Rand Paul, and Hillary Clinton in the running so far. We thought our readers would find it useful to have a reference guide on their positions on the security-related issues that we cover at Just Security.

We’ve put together a non-partisan database outlining the candidates’ current stances on a selection of topics. We have included sources for each summary and, whenever possible, have cited official government websites or the candidates’ websites. In the table below, we have included only those candidates who have formally announced their candidacy in one of the major two parties as of today. Click the footnotes to see the source documents.

The al Bahlul Oral Argument Semianniversary

Today, April 22, marks the six-month anniversary of the oral argument before the D.C. Circuit in al Bahlul v. United States, by far the most significant constitutional challenge (Hamdan v. Rumsfeld was a statutory challenge) to the jurisdiction of the Guantánamo military commissions. As I’ve suggested before, regardless of how the three-judge panel rules in al Bahlul, it has a pretty good shot at getting the Supreme Court’s attention. For that reason, among a host of others, each week that passes without a decision is that much more vexing–and does nothing to resolve the uncertainty that continues to cloud the current (and potential future) state of the military commissions. In Bahlul’s case specifically, it’s worth reiterating that Bahlul was convicted in 2008, and that this challenge–his direct appeal of his conviction–is still pending in the D.C. Circuit nearly seven years later.

Add to the semianniversary of the al Bahlul argument last Friday’s incisive tweet from Carol Rosenberg noting the (not-widely-publicized) decision to suspend all proceedings in the al Nashiri trial (to await resolution of the pending appeals in the Court of Military Commission Review and the D.C. Circuit):

In February, I wrote about the statement by General Mark Martins, the commissions’ Chief Prosecutor, who responds to criticisms of the commissions by asserting that “they are a resilient part of our justice and counterterror institutions.” Whatever one thinks about General Martins’ assessment of the commissions’ historical record, they sure can’t be resilient so long as they’re doing nothing.