International Law And National Security: A View From Abroad On Current Trends In Targeting, Detention, And Trials

On May 18, from 6-7:30 pm, in Cardozo Law School’s Moot Court Room, the International Committee of the Red Cross and Cardozo Law School will co-host an essential program for anyone interested in the application of international law to national security.

This event will feature some of the most active and respected experts in the field from abroad to discuss their view of international law and national security in the United States and around the globe in light of recent political upheavals. The panel will be moderated by yours truly (Prof. Beth Van Schaack of Stanford Law School).

For further information, please see the flyer below. There will be a reception after the event.

To register: Eventbriteppflyernorsvp.

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Blind Eye in the Sky

Five thoughts about targeted killings following the new Hollywood targeted killings fiction ‘Eye in the Sky’:

1. ‘Eye in the Sky’ treats intelligence as certain facts. It reinforces the illusion that we have all the information, and that the information that we have is beyond doubt. In fact, intelligence is limited and uncertain in various ways. First, we only have what we are able to collect. As terrorists act in clandestine, data collection is challenging. Some data are beyond our reach, while other data are inaccurate, false or wrongly interpreted. Second, interpreting intelligence becomes even more challenging, as we are yet to agree on what defines a terrorist act or who should be characterized as terrorist. Third, reliance on sophisticated technology does not solve these inherent uncertainties, as data analysis by robust algorithms is as limited as the partial information on which it is based. Paradoxically, the reliance on sophisticated technology might even reduce uncertainty, as it might increase risk aversion and overconfidence in what we (think we) know and in the decisions that we make.

2. The scenario is as unrealistic as the torture ‘ticking time bomb’ scenario. Typically, targeted killing operations do not target suspected terrorists who wear explosives and are ready to bomb a shopping mall. In fact, when suspected terrorists do wear explosives and are embarking on a suicide bombing operation no one would argue that they should not be attacked. However, there are often alternatives to a hellfire attack on a home in a residential neighborhood. The movie’s choice to present this method as the only option, with no alternatives either in method or time, shadows the real debate concerning bombing a civilian home in a residential neighborhood due to the apparent presence of suspected terrorists nearby. Indeed, in many US targeted killing operations in Pakistan and Syria many civilians were killed or injured and numerous civilian residences were destroyed, leaving local families without a roof or shelter. Conveniently, the movie deserts the residential neighborhood immediately after the attack, and chooses to focus, instead, on the trauma caused to the US pilot and drone operators.

3. Women in the military or politics (or elsewhere) do not burst into tears every time something bad happens. The scene when the male General berates the female secretary of foreign affairs for criticizing him while ‘eating her biscuits and drinking her tea’ and then tells her she should ‘never tell a soldier he doesn’t understand the price of war,’ is chauvinistic and insulting. The fact that she responded to this insult with massive crying just made it worse. Similarly, the female drone operator cried so much she could barely follow her instructions, while her superior male pilot shed a tear or two, but kept it cool; sensitive yet in full control.

4. The one realistic point in the script was the way the Somali agent was treated: as disposable. Sent again and again on suicide missions, based on the racist assumption that all Somalis look alike. His life were the only ones left completely out of the algorithm’s robust calculations.

5. Finally, watching this movie a few months after British and US forces targeted an ISIS hacker in northern Syria and killed instead 3 innocent bystanders and wounded 5, and shortly after a US force continuously fired at a Doctors Without Borders hospital in Kunduz, killing 30 people, mostly medical staff and patients and completely destroying the only free trauma center in northern Afghanistan, portrayed the dilemmas in this Hollywood fiction as both unrealistic and self-righteous.

Similarly to so many other mainstream TV shows and movies, ‘Eye in the Sky’ continues the efforts to simplify and dogmatize a complex reality, and proves the maxim that ‘the first casualty of war is the truth.’ By using fake dichotomies between good and bad, us and them, now or never, the movie erodes some of the most important moral dilemmas of our time.

The 2nd Circuit’s Disclosure Order: A Fresh Opportunity to Revive the Imminence Debate?

On 21 April 2014, the 2nd Circuit Court of Appeals reversed a lower court decision and ordered the US Department of Justice to disclose portions of a classified memorandum written by the Office of Legal Counsel around June 2010, providing legal justification for the targeted killing of Anwar al-Awlaki, an American citizen.

The court decided that the government waived its right to secrecy by publishing a Justice Department White Paper in 2011 and by making repeated public statements on the legality of targeted killings.

At the time of writing, it is unclear when the memorandum might be made public, or whether the government will seek review of the decision.

Although the plaintiffs had not challenged the legality of targeted killings, and the operational details in the memorandum were not affected by the disclosure order, the decision is a clear rejection of the policy of secrecy surrounding the US government’s targeted killings program.

Allegedly, the classified memorandum concluded that al-Awlaki could be lawfully killed, if he could not be captured, because there were reports that he was involved in the war between the US and al-Qaida and posed a significant threat to US citizens, as well as because Yemeni authorities were unable or unwilling to stop him. The sparse details left many wondering about the particular mechanism followed and the laws applied to reach the decision to kill him. Subsequent public statements, the White Paper (WP) and a Fact Sheet released by the White House in May 2013 tried to fill the gap and provide a domestic and international legal framework for the targeted killings of US citizens (and others) abroad. As regards domestic law, while President Obama acknowledged the paramount importance of due process, the WP trivialized (on pp. 5-6) the Mathews v. Eldridge (1976) test through a cursory weighing of private and public interests against each other. As regards international law, while official references to the law of self-defense and the law of armed conflict have been manifold, their applicability and inter-relationship has not been clarified.

It remains to be seen whether the partial disclosure of the memorandum, if effected, will revive the debate and bolster the scrutiny on the US government’s targeted killings program.

Among many concerns of the program, the concept of imminence in itself, and its schizophrenic association with both due process and the law of self-defense merit thorough review and discussion. Continue reading