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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
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.
I’m pleased to announce I am a contributor to the forthcoming book Targeted Killing: Law and Morality in an Asymmetrical World (Oxford 2012).
Here is the Table of Contents:
INTRODUCTION Andrew Altman
PART I: THE CHANGING FACE OF WAR: TARGETING NON-COMBATANTS
- Rebutting the Civilian Presumption: Playing Whack-A-Mole Without a Mallet? Colonel Mark “Max” Maxwell
- Targeting Co-belligerents Jens David Ohlin
- Can Just War Theory Justify Targeted Killing? Three Possible Models Daniel Statman
- Justifying Targeted Killing With a Neutral Principle? Jeremy Waldron
PART II: NORMATIVE FOUNDATIONS: LAW-ENFORCEMENT OR WAR?
- Murder, Combat or Law Enforcement Jeff McMahan
- Targeted Killing as Preemptive Action Claire Finkelstein
- The Privilege of Belligerency and Formal Declarations of War Richard V. Meyer
PART III: TARGETED KILLING AND SELF-DEFENSE
- Going Medieval: Targeted Killing, Self-Defense, and the Jus ad Bellum Regime Craig Martin
- Imminence in Justified Targeted Killing Russell Christopher
- Defending Defensive Targeted Killings Phillip Montague
PART IV: EXERCISING JUDGMENT IN TARGETED KILLING DECISIONS
- The Importance of Criteria-Based Reasoning in Targeted Killing Decisions Amos N. Guiora
- Are Targeted Killings Unlawful? A Case Study in Empirical Claims without Empirical Evidence Gregory S. McNeal
- Operation Neptune Spear: Was Killing Bin Laden a Legitimate Military Objective? Kevin H. Govern
- Efficiency in Bello and ad Bellum: Making the Use of Force Too Easy? Kenneth Anderson
PART V: UTILITARIAN TRADE-OFFS AND DEONTOLOGICAL CONSTRAINTS
- Targeting in War and Peace: A Philosophical Analysis Fernando R. Tesón
- Targeted Killings and the Morality of Hard Choices Michael S. Moore
- Targeted Killing and the Strategic Use of Self-Defense Leo Katz
*Lock-up the semester with FedSoc’s Over-Criminalization event: “
Lock-up the semester with FedSoc’s Over-Criminalization event featuring Radley Balko and Prof. McNeal
The event will address the large influx of federal laws and what it means for American citizens. Lunch will be served in the Appellate Court room @12:30pm on Monday, November 14th.
Radley Balko is currently a senior writer for Huffington Post, where he focuses on civil liberties and the criminal justice system. His prior experience includes senior editor at Reason magazine, policy analyst for the Cato Institute covering civil liberties and the drug war, and biweekly columnist with FoxNews.com. On a personal side, Balko identifies himself as “a music buff, an amateur photographer, and an admitted ‘dog person.’” Read more about Radley Balko on his website.
Pepperdine’s Prof. McNeal is a national security specialist with expertise in national security law and policy, transnational crime, global policy studies, and international law. He previously served as Assistant Director of the Institute for Global Security, co-directed a transnational counterterrorism program for the U.S. Department of Justice, and served as an advisor to the Chief Prosecutor of the Department of Defense Office of Military Commissions on matters related to the prosecution of suspected terrorists held in the detention facility in Guantanamo Bay, Cuba.
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On Friday November 4, 2011 The Florida International Law Review will host their Fall 2011 Symposium. The topic is What the Future Holds: Balancing Law, Liberty and National Security. I will be participating in Panel III- Looking Back to Shape the Future: How Foreign Policy will Affect Law, Liberty and National Security.
Here is the symposium teaser:
The rise of transnational terrorism and evolving threats to the national security of the United States has forced remarkable changes in United States foreign and domestic policy. The United States’ various strategies and policies for coping with these threats are celebrated by some and rejected by others. This symposium will focus on the law as well as related policy, political, and societal implications of national security policy. How do we balance liberty and individual freedoms with national security in today’s America? Where do we go from here?
The full schedule appears after the break.
On Tuesday, October 25, 2011 I will be presenting my paper Collateral Damage and Accountability at Santa Clara University School of Law. The event will take place at noon and is open to the public.
On Tuesday, October 4th I will be part of a panel at Mercer University School of Law. The panel discussion will explore the differences between President Obama and President Bush’s national security policies, specifically as they relate to counterterrorism. Some issues we will explore are:
- Commentary on how successful the current program has been in achieving its objectives
- Changes that might need to be implemented to make the terror policy more effective and/or efficient
- Specific weaknesses that make the program less effective than it might otherwise be
- The continued viability, legality, and future of holding terror suspects at Guantanamo Bay and even other “black sites” in some European nations
- How do we balance the needs to secure ourselves with the freedoms we enjoy as citizens.
In light of the recent news that the CIA has killed al-Awlaki, I thought I’d flag my essay at CATO entitled “The Federal Protective Power and Targeted Killing of U.S. Citizens“
Here is an excerpt:
My reading of the Constitution leads me to believe that there are circumstances when the president may order U.S. citizens to be killed. It may be akin to the facts in al-Awlaki, where one is actively making war against the United States, or it may be in lesser circumstances that threaten the instruments of federal power. Let’s start with a settled example where a killing was authorized to protect the federal government. In Cunningham v. Neagle, 135 U.S. 1 (1890), the Court addressed the killing of a U.S. citizen by Neagle, a federal marshal who was dispatched to protect Justice Field from an anticipated assault. While on a railroad dining car, the assault occurred (as expected) and Neagle reacted by killing the assailant with two pistol shots; Neagle was subsequently arrested on homicide charges and held for trial. The question the Court addressed was whether Neagle, acting upon orders but not a statute, had authority to kill a man in defense of Justice Field. The Court found that Neagle was acting pursuant to lawful authority, because the President was entitled to authorize protection for a sitting Supreme Court Justice. Justice Miller wrote:
That there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of California; are questions too clear to need argument to prove them.
While the Court characterized the questions as “too clear to need argument to prove them” this was in fact the first time the Court ever articulated what was long thought to exist—a federal protective power. The Court went on to explain that the structure of the Constitution itself suggested there was an inherent executive power to protect federal officers in the discharge of their duties.
Neagle was reinforced five years later in In re Debs, 158 U.S. 564 (1895), a case involving the attorney general’s attempts to prohibit interference with interstate commerce. In Debs the Court noted that the president was acting on inherent powers embedded in the Constitution and existing statutes, both of which allowed him to act as the primary agent of the national government to “prevent any unlawful and forcible interference” with interstate commerce. The Court went on to state that the president could use “the entire strength of the nation” including “the army of the Nation, and all its militia” to protect interstate commerce. Moreover, the Court cited numerous English and state authorities for the proposition that “when the choice is between redress or prevention of injury by force and by peaceful process, the law is well pleased if the [Executive] will consent to waive his right to the use of force and await [the law’s] action,” (emphasis mine) but such waiver is not constitutionally required. The import of Neagle and Debs is perhaps best summarized by the dissent in the Steel Seizure case, “[t]he Executive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government.”
Read the whole thing here, and contributions from others here.
