Obama Administration Fails to Address Legality of Targeted Killing

(Published in the Truman Doctrine blog, May, 2012)

In a speech at the Wilson Center on April 30, John Brennan, Assistant to the President on Homeland Security and Counterterrorism, addressed the subject of targeted killing. In particular, he set out to explain the legality, ethics, and operational wisdom of the policy of using drone-mounted missiles to kill suspected terrorists and insurgents in countries other than Afghanistan – that is countries with which the U.S. is not in an armed conflict. His speech was the most elaborate and open statement yet by the administration on the policy, which remains officially covert, but it provided little new analysis, and it did not respond to the most fundamental challenges to the policy.

The stated objective was a laudable one. He acknowledged that the U.S. policy of targeted killing has been the subject of significant international criticism. He referred to President Obama’s commitment, made in his Nobel Peace Prize acceptance speech, that the “United States of America must remain a standard bearer in the conduct of war,” and that “all nations, strong and weak alike, must adhere to standards that govern the use of force.” Moreover, Brennan stated that President Obama understands the need for greater transparency, and the requirement to explain to both the American people and the world the rationales for the policy.

Unfortunately, however, Brennan provided little new analysis to explain how the targeted killing adheres to the governing principles of international law. Harold Koh, legal counsel to the State Department, provided the basic legal justification two years ago – that is, that the U.S. is in an armed conflict with Al Qaeda, the Taliban and associated forces, such that members of those groups can be lawfully targeted as combatants in an armed conflict; and that the U.S. is entitled to use force in the exercise of its inherent right of self- defense. … Read more…

The Fallacies of the Torture Debate

(Published in The Huffington Post, May 19, 2011)

The torture debate has once again seeped into the public discourse in America, and it has us focusing once again on all the wrong issues. Suggestions have been made that information that Khalid Sheikh Mohammed provided while being water-boarded helped lead the CIA to bin Laden’s door. This has prompted the likes of John Yoo (author of the notorious torture memos signed by Jay Bybee) and former Attorney General Michael Mukasey, to argue that the case for water-boarding has been vindicated. Others, including Senator John McCain, have refuted the assertions that the trail to Bin Laden can be traced back to so-called “enhanced interrogation techniques.” In short, the debate is once again centering on the question of whether torture is effective.

First, it should be noted that the debate misconstrues the effectiveness argument. Few people would assert that torture can never produce so called “actionable intelligence.” The point, made extensively by FBI interrogators and other specialists in the field, is that torture produces less reliable intelligence than traditional (and lawful) methods of interrogation, since the victim will say anything to avoid the pain, some of it true but much of it not, creating the problem of trying to distinguish between fact and fiction. Moreover, a policy of torture creates longer term strategic costs in the effort to win over hearts and minds, which ultimately makes it counter-productive and ineffective from a broader perspective.

The key point, however, is that effectiveness is entirely beside the point. We should oppose and reject the use of torture even if it could be shown that it is effective. To his credit, John McCain also makes this argument. For those who do oppose torture, it is a profound mistake to be engaging in this debate about effectiveness. First of all, the arguments get reduced to the overly simplistic and binary question of whether it ever works, which is of course vulnerable to attack — just one example of torture producing one piece of accurate intelligence tends to undermine the entire position. Hence the debate today. But more importantly, engaging in this debate tends to suggest that if torture were found to be effective, then perhaps we might have to use it. But we would not, or should not, so why get trapped in this debate? We ought to stick to the real reasons for our objections.

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The Legal Implications of Military Intervention in Libya

(Published in The Huffington Post, March 2, 2011)

As the crisis in Libya deepens there is increasing chatter about the possibility of military intervention. At the moment this is suggested most frequently in the form of a no-fly-zone over Libya, in order to prevent Gaddafi from using the air force against civilian protestors.

A debate is developing over the wisdom of any American or Western military involvement, but as usual there is little being said about the international law principles that would be implicated by such operations. And in the context of the growing unrest throughout the region, perceptions of the legality or illegality of any U.S. military action could have a significant impact on the developing narrative in the Arab world regarding America’s role, and how the emerging regimes ought to frame their relations with the U.S. going forward. The law matters in this situation.

The starting point of the legal analysis is the basic prohibition in international law on the use of armed force against the territorial integrity or political independence of any state. The two primary exceptions to the prohibition are self-defense, which is obviously not applicable here, and operations authorized by the United Nations Security Council in response to a threat to international peace and security. There is no question, therefore, that if the U.N. Security Council passed a resolution authorizing the imposition of a no-fly-zone in order to maintain peace and security in and around Libya, as it did in Iraq in the 1990s, the U.S. and its NATO allies could do so with the full imprimatur of international law.

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DADT, Unit Cohesion, and American Values

(Was set to be published on Dec. 17, when the Senate voted for repeal, making it thankfully moot)

In the debate over repeal of the Don’t Ask Don’t Tell policy, Senators such as John McCain cling to the argument that allowing gays and lesbians to serve openly in the military might negatively impact on unit cohesion, and thus on war-fighting capability. The Commander of the Marines, General James Amos, has fueled such claims, suggesting that repealing the policy in a time of war could cause casualties. As the Senate begins its debate on the issue, it is crucial to understand the assumptions and validity of this argument.

The conclusion of the argument is itself tenuous. Over 25 of our democratic allies have changed their policies within the last twenty years to allow homosexuals to serve openly. Comprehensive studies of those militaries, including those of such close allies as Great Britain, Israel, Australia and Canada, have established that the change in policy did not result in any degradation of fighting capability. Moreover, prior to the policy shifts, surveys of military members in many of those countries found that there was strong opposition to the change, and suggested that there would be significant disruption if implemented. In other words, stated attitudes grossly exaggerated the likely impact. Yet the recent Pentagon study of the U.S. military found that 70% of service members already accept the change and think it would have little impact.

But let us assume for the moment, just for the sake of argument, that there might be some disruption to unit cohesion if DADT is repealed. Why would that be? No one suggests that it is because gays and lesbians are inherently less capable of fulfilling their duties or performing combat functions than their straight brothers and sisters in arms. It is not about their conduct at all. It is all about the response of their comrades. … Read more…