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International Law and New Wars. By Christine Chinkin and Mary Kaldor. Cambridge, UK: Cambridge University Press, 2017. Pp. xvii, 592. Index.
- Antonia Chayes
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- American Journal of International Law / Volume 113 / Issue 1 / January 2019
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- 14 January 2019, pp. 212-216
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- January 2019
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Contents
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5 - Legal Implications of Counterinsurgency: Opportunities Missed but Not Lost
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Summary
The legal issues surrounding counterinsurgency highlight missed opportunities for adequate legal guidance. They do not raise concerns about the legality of the actions of counterinsurgency, as is the case with targeted killings. Counterinsurgency, as such, does not transgress international law, so long as its actions comply with the laws of occupation and the laws of armed conflict.
As for mandating intensified civil-military relations in a counterinsurgency environment, legal means exist, or can be developed, to do so. The question remains whether any legal framework that mandated civil-military processes would be sufficient to overcome the problems of bureaucratic inertia, turf hoarding, personal chemistry, or even “double government” discussed in Chapter 4. Thus far, expressions of concern and intent in widely respected commission reports – and even the significant reorganization of cabinet departments and intelligence structures – have not materially altered bureaucratic “stovepipes.” Executive orders and (rather weak) requirements written into the Department of Defense authorization and appropriations legislation have not effected dramatic changes in standard operating procedures.
The Clinton-era Presidential Decision Directive 56 (PDD 56) mandated civil-military planning and training, and created a structure within the National Security Council (NSC) to help assure civil-military collaboration in cases of military intervention and complex peace operations. It was distilled from the interventions and peace operations experience of the early 1990s particularly “Operation Provide Comfort”, the allied efforts to protect the population in northern Iraq after the first Iraq war, and the American debacle in Somalia. PDD 56 required that the Deputies Committee of the NSC create an Executive Committee to develop a “political-military” plan to integrate all elements of a U.S. response to a crisis. The process was elaborate, and the training and “rehearsals” of the planning process were designed to provide an integrated outcome in which all the necessary actors had a role. An early draft of the concept was previewed in Haiti in 1994, when the capitulation of the government made a peacebuilding operation possible.
4 - Civil-Military Implications: The Demands of a Counterinsurgency Strategy
- Antonia Chayes
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Summary
Stringent conditions must be fulfilled in order for the counterinsurgency approach to achieve a modicum of success. These conditions, without adequate domestic legal direction, put immense pressure on civil-military relations at all levels. These conditions include: (1) a host government in which most of the population can have, or build trust; (2) the ability to handle at least some simultaneity of kinetic action and peacebuilding/nation building without degrading either task; (3) a high degree of functionality (in terms of both resources and human capacity) in the intervener's civilian institutions; (4) the ability of civilians and military to collaborate effectively, requiring a more evolved model of civil-military relations; (5) interveners’ political and military willingness to accept high danger for both military and civilian officials; and (6) persistence over a long period of time.
A Host Government That Can Begin to Build Trust
Counterinsurgency requires a credible and visible alternative to an insurgency: “[T]he real battle is for civilian support for, or acquiescence to, counterinsurgents and local authorities.” This support or acquiescence only comes, however, if the counterinsurgents and local authorities can show capability and willingness to provide for the population's basic needs, to assure the population's reasonable security, and to help in the longer-term effort to provide justice and stability. These are not easy requirements even in a more traditional post-conflict environment, but they are far more demanding in the gray area between war and peace. The first assumption is that there is even a government with which to work. If the interveners have toppled an existing government, or find a collapsed government or only local powers of varying strengths, the task is questionable from the beginning. Depth of knowledge about the local culture and local needs is required before the interveners can help the population create a government on which it can rely. Too often over the past few decades, western countries, and especially the United States, have attempted to create a “mirror image” of their ideal model of a western democracy quickly, down to the last detail of a new constitution and elections. But the formalities were accomplished without regard for the nature of the government installed or in power, as well as the lack of support within the population. This was partly the case in Vietnam. Unfortunately, neither Iraq nor Afghanistan reflected a lesson learned.
Acknowledgments
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1 - Introduction
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Summary
Liber Scriptus proferetur
In Quo totum continetur
Unde mundus judicetur
The Written Book shall be brought
In which all is contained
Whereby the world shall be judged
Dies Irae from the Requiem Mass“Are you saying that a U.S. citizen targeted by the United States in a foreign country has no constitutional rights?” demanded Judge Rosemary Collyer of the Federal District Court of the District of Columbia on July 19, 2013. Facing her was Brian Hauck, a deputy assistant attorney general. “How broadly are you asserting the right of the United States to target an American citizen? Where is the limit to this?”
Then the judge answered her own question: “The limit is the courthouse door.”
The case was a civil action against four officials, including General David Petraeus, then Director of the Central Intelligence Agency (CIA), and Leon Panetta, then Secretary of Defense. The father of Anwar al-Awlaki brought the lawsuit. A terrorist leader of al-Qaeda in the Arabian Peninsula, al-Awlaki had been a master propagandist who allegedly inspired the mass shootings at the U.S. army base at Fort Hood, Texas, in 2009, and masterminded an attempted attack on an American airplane. His son was killed accidentally two weeks later in a drone strike against Samir Khan, a publicist in the same al-Qaeda offshoot.
Although Judge Collyer, a George W. Bush appointee who also sits on the Foreign Intelligence Surveillance Court, ultimately dismissed the case in April 2014, the lawsuit raised fundamental legal issues that have been the subject of ongoing debate regarding how U.S. laws are construed.
The judge's remarks also raised much broader issues about the nature of contemporary warfare and the changes in the roles of the military vis-à-vis the many different civilian actors with whom it works. This shift in roles has been especially dramatic since 9/11. Along with senior civilian leadership, Congress at the policy level, and diplomats and aid workers at the operational level, many more civilians are now relevant in any discussion of civil-military relations. They include the CIA in a paramilitary role; almost every U.S. federal government agency and many agencies at state and local levels; the U.S. courts; and a growing army of civilian contractors, many of whom are ex-military currently performing quasi-military roles
Borderless Wars
- Civil Military Disorder and Legal Uncertainty
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In 2011, Nasser Al-Awlaki, a terrorist on the US 'kill list' in Yemen, was targeted by the CIA. A week later, a military strike killed his son. The following year, the US Ambassador to Pakistan resigned, undermined by CIA-conducted drone strikes of which he had no knowledge or control. The demands of the new, borderless 'gray area' conflict have cast civilians and military into unaccustomed roles with inadequate legal underpinning. As the Department of Homeland Security defends against cyber threats and civilian contractors work in paramilitary roles abroad, the legal boundaries of war demand to be outlined. In this book, former Under Secretary of the Air Force Antonia Chayes examines these new 'gray areas' in counterinsurgency, counter-terrorism and cyber warfare. Her innovative solutions for role definition and transparency will establish new guidelines in a rapidly evolving military-legal environment.
Dedication
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14 - Conclusion: The End Is the Beginning
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Summary
The law hath not been dead though it hath slept.
Shakespeare, Measure for Measure, 2.2.90Any current analysis is likely to fade away with time, the way children's sandcastles do when the tide rises, leaving behind their vague shapes. New episodes eclipse the old, and they are treated as novel problems, not merely new examples of familiar unsolved issues.
The three areas discussed in this book will remain relevant even after a new administration is in charge of the country and after the past dozen years of war have become a distant memory. Different versions of similar problems will plague government agencies. Insurgencies with different names and faces will challenge governments and terrorize civilians. America or Europe might well suffer a crippling cyber attack.
Yet, as difficult and enduring as the problems discussed in this book may be, they are not impervious to ingenuity. The United States has always been an innovative, problem-solving nation, and those skills are sorely needed now to deal with the gray space between war and peace. Other rising nations will also show resilience and find imaginative approaches.
Counterinsurgency,
Counterinsurgency in the form laid out in the U.S. Army/Marine Corps Counterinsurgency Field Manual may not be repeated for a decade or more, after its unfulfilled promises in both Iraq and Afghanistan. Moreover, the pattern of retreat into national isolationism after a period of aggressive military effort is well established. But when the international community becomes engaged in asymmetric ground warfare once again, we should finally recognize that supporting governments that cannot gain the trust of their people is a poor investment. Why were we surprised by ISIS gains when the United States had accepted the al-Maliki government's exclusion of Sunnis from all forms of political and economic advancement in Iraq? Surely we could have predicted Taliban gains in Afghanistan when police and the courts routinely demanded bribes and two elections were fraught with corruption. In each case there were democratic alternatives.
Frontmatter
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12 - Legal Implications of Cyber Attacks and Cyber Warfare
- Antonia Chayes
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Summary
Since the very concept of cyber attacks as a form of warfare is so novel, it is unsurprising that legal guidance has not caught up with technological possibilities. In the absence of international agreements and domestic legislation in the United States and Europe, creative attempts have been made to bring cyber attacks under the umbrella of existing international and domestic legal doctrines. Yet analogies, however creative and persuasive, are not infinitely elastic.
The Tallinn Manual represents an important international step in attempting to state current international treaty and customary law that pertains to cyber exploitation. In 2009, the NATO Cooperative Center of Excellence commissioned a broad international group of legal and technical experts to explain the relevant law and practice as it stood at the time. Under the leadership of its editor, Professor Michael N. Schmitt, it chose the format of rules with explanations, not unlike the judicious approach taken by the American Law Institute in its Restatements of Law in various fields. It is not meant to express an official interpretation, as a disclaimer makes clear, but it is an influential document toward that end, and it has been treated as such. It did not create new law, nor suggest possible international agreements that might be adopted. It did create a consensus, nonbinding document that could form the basis for future negotiations. However, the process has not stimulated perceptible international movement since its completion in 2012. Unfortunately, a life raft that is being constructed very slowly – one nail at a time – may not be finished before the storm hits.
U.S. Domestic Legal Issues
While questions of international law and use of force may be at the forefront of scholarly discussion, domestic steps to cope with cyber incidents are of immediate importance in view of the vulnerability of critical infrastructure in the United States. The U.S. president has war powers to deal with an unmistakable cyber attack with kinetic effects under the AUMF of 2001, limited to those responsible for 9/11, and under Article II of the U.S. Constitution. In the event of a cyber attack on critical infrastructure, what powers would an American president have to intervene to step in to restore and manage the problem if the private company were not cooperating?
10 - Cyber Attacks and Cyber Warfare: Framing the Issues
- Antonia Chayes
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Estonia was a highly wired society, but its ability to function as such was nearly brought to a halt in less than a month because of three waves of cyber attacks between April 26 and May 18, 2007, likely carried out by Russian agents. These attacks, more than recent attacks on private noncritical corporations such as Sony Pictures Entertainment, represent another type of gray area between war and peace, raising novel issues about civil-military roles and the inadequacy of the law underpinning this area. Widespread dependence on the internet combined with serious hardware and software flaws and overall system weakness made for a compounded vulnerability of an entire nation. Repeated attacks on banks and other commercial operations in the United States and Europe, and even more serious, cyber attacks on Iran's nuclear facilities, underscore the blurred line between economic crimes and something closer to outright hostilities.
One of the relatively unsophisticated methods used with success during these attacks, Distributed Denial of Service (DDoS), “overloads a victim's server by exploiting communication protocols,” transmitting a false address to a server, which then overloads the system by trying to respond, crowding out other legitimate requests. “Ping” attacks were also launched – or attacks that flooded the system with more information than it could handle. The successive waves of attacks crashed Estonia's internet system, leaving the government – including the president, parliament, police, and military – unable to communicate. The country's entire banking system had to shut down. Computers used in the attack were traced to 178 countries. The scope of global participation was breathtaking at the time.
The effects of the attack on Estonia do not appear to be proportional to their cause, which indicates how easily petty disputes can lead to serious consequences in the cyber age. The Estonian government had removed a Russian, Soviet-era statue of the Bronze Soldier from its central location in Tallinn and exhumed an adjacent war grave containing the remains of twelve Soviet soldiers and moved them all to a remote cemetery on the outskirts of the country's capital. Verbal attacks from Russia against the Estonian government followed; the discontent suggested that the source of the cyber attack was from Russia as well. Yet it took longer than the two weeks the attacks lasted to pinpoint their source: most likely the Russian government–sponsored youth group, Nashe.
Index
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13 - International Cooperation on Training Wheels
- Antonia Chayes
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Efforts to institutionalize international cooperation are rudimentary. In 2011 the Department of Homeland Security negotiated a memorandum of understanding with India on cyber attack cooperation, and in 2012 negotiated a cooperative arrangement with the Canadian government to integrate “respective national cyber-security activities and improved collaboration with the private sector.” This is a bare beginning.
The attacks on Estonia prompted some interesting beginnings in NATO's cooperative effort, not only for cooperation after an attack but also for attack prevention. Both Estonia and NATO treated those attacks under Article 4, which provides for member state consultations after an attack: no action is promised. In contrast, Article 5 of the NATO charter states that “the Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against all.” The potential for NATO collective action does exist if a cyber attack were part of a traditional attack, or produced similar kinetic effects, which was not arguably the case in Estonia, where the damage was economic and relatively short term.
At the Wales summit in September 2014, NATO announced an enhanced cyber strategy recognizing that a cyber attack might be as harmful as a conventional attack. It affirmed that cyber defense “is part of NATO's core task of self defense,” but added that the decision to intervene would be made on a case-by-case basis. Thus it was left ambiguous what kind of attack might prompt NATO to respond under Article 5, and left unaddressed the issue of widespread economic harm.
At present, NATO has put in place an institutional structure to deal with cyber attacks: the Cyber Defense Management Board, creating, inter alia, a Computer Incident Response Capability (NCIRC) to protect its own systems, and the NATO Cooperative Cyber Defense Center of Excellence in Tallinn. The Cyber Defense Policy is now integrated into the NATO Defense Planning Process. There are conferences and membership training to defend against cyber attack including NATO training the Jordanian army to defend against ISIS cyber attacks. It is not clear yet how effective any of these developments may turn out to be, but they are part of a developing institutional framework.
3 - The Counterinsurgency Dilemma
- Antonia Chayes
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Summary
What passing-bells for these who die as cattle?
Only the monstrous anger of the guns.
Only the stuttering rifles’ rapid rattle
Can patter out their hasty orisons.
Wilfred Owen, “Anthem for Doomed Youth”The widespread terrorist attacks in the early part of the twenty-first century and the evolving responses to those attacks changed not only the security environment but also the relationship between civilian and military responses to terrorism. Approaches dubbed “counterinsurgency” and “counterterrorism” have been dominant at different times since September 11, 2001. Both approaches have blurred the lines between tasks that have traditionally been military and those that have been civilian. And in both counterinsurgency and counterterrorism, the division of responsibility between civilians and military lacks a clear legal basis, although the role issues and legal problems differ. The absence of firm legal underpinnings impedes the civilian-military cooperation necessary for mission success. Legal clarity is no panacea for lack of policy clarity, but it might improve some problems of role definition and confusion.
Twenty-first-century counterinsurgency represents a radical adaptation of recent U.S. war-fighting strategy and tactics, as well as a revival of an approach that had been developed in the past but abandoned. It upended traditional notions of civilian control and civil-military relations. As a strategy, it is not new. It was and remains a radical departure not only from General Westmoreland's use of massive force in Vietnam but also from the Powell-Weinberger doctrine of overwhelming force of the 1980s and 1990s. Because of the need for a militarily weaker enemy to rely on the population, counterinsurgency doctrine focused on winning over that population, rather than on actions only aimed at destroying the enemy. This approach fired the U.S. imagination after the publication of the U.S. Army/Marine Corps Counterinsurgency Field Manual (FM 3–24) in 2005. But it promised more than it could deliver. Many of the difficulties that counterinsurgency had encountered in the past were neither confronted nor addressed. Unsurprisingly, its brand of counterinsurgency has proven very difficult to implement.
7 - Civil-Military Issues in Targeted Killing by UAVs
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Far off, like a dull rumour of some other war
What are we doing here?
Wilfred Owen, “Exposure”The fact that both the military and the CIA have carried out UAV operations created problems of role definition that are almost the opposite of those in the counterinsurgency situation. There, reconstruction functions had traditionally been considered civilian, but persistent violence, shortages of civilian personnel and resources made it difficult to avoid military participation. In the case of targeted killing, the function seems more clearly a military one, but is also carried out by civilians in the CIA. While it is true that parts of the CIA have had a covert, quasi-military role since the passage of the National Security Act of 1947, routine conduct of bombing operations, even remotely, seems closer to a traditional military function.
The reasons for public discomfort about widespread use of UAVs to strike terrorists are complex. Apart from legal issues, some of this concern amounts to more than just a feeling that it is more appropriate for the military to be responsible for conducting violence than the civilian CIA. Discomfort seems also to revolve around the institutional reputation of the CIA – its secrecy and history of acts of questionable legality. First, although the CIA has long been involved in covert operations, its reputation has been increasingly tarnished since 9/11, even as it recovered somewhat from the Bay of Pigs disaster more than a half century ago, and even from the Church Committee findings in the 1970s. Widespread abuses of enhanced interrogations, practices such as waterboarding, extraordinary renditions of suspects, maintenance of secret “black” sites, and even indications that CIA leadership has hidden some agency activities from high government officials have all heightened internal and international public impressions of the agency's rogue behavior.
Second, lack of public discourse about the legality of targeted killing has further heightened impressions of a lack of accountability. This is discussed in Chapter 8.
6 - Counterterrorism: The Unquiet Warfare of Targeted Killings
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Inter arma silent leges
Within less than a decade of U.S. presence in Afghanistan, it became clear that the counterinsurgency strategy was not succeeding. The strategy was not initiated when the intervention began. Even after a strategic reassessment in 2009, and the efforts of General Stanley McChrystal, its stringent conditions for success were not met. The Taliban and its bloody insurgency had revived. In Iraq, where it seemed for a time as if some form of counterinsurgency had turned the tide, increasingly hopes were dashed that the country might become a sustainable democracy. The United States and the world economy were in recession and had contracted dramatically. Attention was turning inward – away from these countries. The United States had withdrawn from Iraq in 2011, and had announced plans to substantially withdraw from Afghanistan in 2014.
However, the violent militant insurgency group ISIS, (or the Islamic State), changed both the situation and the boundaries in Iraq and Syria with mass recruitment and successful cross-border assaults. Despite war fatigue and donor disillusionment, the United States managed to cobble together a coalition to counteract the onslaught. The fragile coalition included several Arab nations with varying contributions, as well as the United Kingdom, Australia, France; and an opening to Turkish assistance.
The threat of terrorism – not solely in Iraq and Afghanistan – has demanded many different strategies depending on the circumstances and the country. In Iraq and Syria, counterterrorism was only part of a “hot” war fought with ground troops and conventional bombing. In Yemen and Somalia, it remained essentially a covert operation, until early 2015 when the Yemen government was routed. In Afghanistan, the alternative strategy to counterinsurgency, counterterrorism, came to play a larger part beginning in late 2010, changing the make-up of the intervention.
One central component of a counterterrorism campaign – targeted killing, particularly the use of lethal unmanned aerial vehicles (UAVs or drones) – has led to a division of civilian and military roles, and the appropriateness of this division raises difficult questions. This is not a case of the military seeping into traditionally civilian domains; rather, it is one that raises the question of whether civilians – CIA personnel – are performing a military function.
11 - Implications for Civil-Military Relations in Cyber Attacks and Cyber Warfare
- Antonia Chayes
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Both civilian and military actors are needed to prevent and respond to cyber exploitation and cyber attacks. Unlike other gray areas, any effort to respond involves cooperation of the private sector, since 85–90% of the critical infrastructure, by any definition, is privately owned and operated. Critical infrastructure is known to be vulnerable, including the electric grid, utilities – especially those fueled by nuclear energy – transportation, and all forms of communication. Public reports indicate that most cyber intrusions and putative attacks have been against privately held critical infrastructure, both in America and Europe.
Three distinct types of novel problems emerge from the demands that will be placed on civil-military relationship in the event of a cyber attack. The first is the fact of private ownership of most critical infrastructure. The need to secure cooperation between government and the private sector presents serious obstacles. In the United States, efforts to legislate standards for the private sector, discussed in Chapter 12, have been thwarted. However the issues are not simply industrial reluctance to cooperate with all of government: fear of antitrust prosecution also plays a role. Moreover, resistance to NSA overreach in monitoring telecommunications and the internet have helped create deep concerns about government regulation within the private sector and civil liberties groups alike. The same issue arises in Europe, where cooperation across state lines is even more important given the interdependence of much of its critical infrastructure. Lack of resilience in one nation's infrastructure immediately affects its neighbors: a failure of the electric grid in Germany triggered power outages in France, Italy, and parts of Spain.
The second problem is the joinder of the intelligence and military domains, and the potential intertwining of operations. U.S. Cyber Command is co-located with the NSA, and headed by the same person. This has led to questions about oversight and control of both intelligence activities and military responses. In cyber war, as in targeted killing, intelligence services may be performing essentially military operations. The President's Independent Review Group recommended separating the agencies and their leaderships, with the NSA clearly designated as a foreign intelligence agency, but as of this writing, leadership is still shared. U.S. Cyber Command reports through Strategic Command to the Secretary of Defense. NSA, a critical (and much criticized) part of America's intelligence network, reports both to the Secretary of Defense and to the Director of National Intelligence.
9 - Opportunities for Stepping Forward
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Although the United States seems unlikely to abandon targeted killing in the near future, the focus ought now to be on developing and implementing standards, limits, and safeguards. In addition to the issues of blowback and the potential loss of technological edge already discussed, the United States has lost legitimacy and stature even among its allies. Legal justification, as the late Thomas Franck has written, is a key to legitimacy. There can be little public confidence in the current policy of targeted killing until the legal justification for it is put on firmer ground and strikes are limited to instances in which a sound factual basis for targeting individuals is made to the public. Legal justification, just as the joke about Wagner's music, is better than it sounds. But that justification has not been presented clearly to the public, nor has it been offered in a timely fashion.
Professor Jack Goldsmith relies in part on “accountability journalism,” Freedom Of Information Act (FOIA) requests, and litigation to expose conditions that will prompt the public to demand action and Congress to act in response. But he is also ambivalent about the exposure of classified information harmful to national security. And while U.S. Supreme Court rulings during the George W. Bush administration curbed some of the worst prisoner abuses, laid the groundwork for habeas corpus, and spurred improved procedures for trial under the Military Commissions Act of 2009, Guantanamo was not closed, indefinite incarceration has continued, and actual freedom for prisoners has been rare. The broad continuity of policy between the Bush and Obama administrations is notable. Michael Glennon's evidence that a permanent stratum of unaccountable “Trumanites” actually make policy; that a “double government” exists in the United States casts considerable doubt about the effectiveness of the accountability mechanisms suggested by Professor Goldsmith.
It is important now to think ahead about forms of international norms and standards that nations might be willing to live by before we are faced with a crisscrossing of targeted attacks from rogue states and non-state actors who have been able to develop advanced technology. Moreover, the technology may go in a direction of autonomous and miniaturized UAVs presenting even greater problems than the current human-guided ones.
8 - The Legal Underpinnings for Targeted Killing by UAV: Framing the Issues
- Antonia Chayes
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This book began with a quotation from the federal judge hearing the civil suit brought by the family of Anwar al-Awlaki in order to emphasize the fact that the variety of civilians involved in these shadowy conflicts even includes the judiciary, and to underscore the salience of legal issues to debates about how the United States should conduct operations in today's gray area of war. Those killings awakened the American public to the problems of UAV use and caused widespread international concern – even alarm – and an unusual amount of comment. Questions about drone attacks reached the federal courts before the executive branch officially acknowledged their existence. The leaked February 2013 Department of Justice White Paper that developed legal justification for targeted killings of Americans was a complex, intricately detailed memorandum that addressed both U.S. domestic law and international law. But it raised as many questions as it answered. An even more detailed classified legal memorandum was supplied to select members of Congress, and a redacted version made public in mid-2014, when it first seemed that its author, David Barron, would not receive the necessary votes for confirmation as a U.S. appellate judge. Although officials have outlined the legal rationale for such actions to specialized audiences, it took a U.S. Court of Appeals decision to compel the government to reveal a more detailed legal basis for targeted killings by UAVs. The question of whether and when such operations are lawful – especially the targeting of U.S. citizens under American constitutional law – has only been grudgingly and partly addressed. The U.S. government has not fully and persuasively presented either the international nor the domestic legal basis for such operations.
Legal issues surrounding targeted killing differ from those of counterinsurgency, whose operations pose no major issues about legality, except perhaps in terms of the rationale for intervention in the first place. By contrast, targeted killing raises troubling questions of legality. These issues may only affect the definition of civil-military roles tangentially. But doubts about both U.S. domestic and international legality create problems for international allies, for American national leadership, for the public whose support is necessary, and for the men and women in the chain of command who both mandate and perform operations.