Part 2 of 3
Today, the organization that attacked us on 9/11 is a shadow of its former self. Different al Qaeda affiliates and extremist groups have emerged – from the Arabian Peninsula to Africa. The threat these groups pose is evolving. But to meet this threat, we don’t need to send tens of thousands of our sons and daughters abroad, or occupy other nations. Instead, we will need to help countries like Yemen, Libya, and Somalia provide for their own security, and help allies who take the fight to terrorists, as we have in Mali. And, where necessary, through a range of capabilities, we will continue to take direct action against those terrorists who pose the gravest threat to Americans.
As we do, we must enlist our values in the fight. That is why my Administration has worked tirelessly to forge a durable legal and policy framework to guide our counterterrorism operations. Throughout, we have kept Congress fully informed of our efforts. I recognize that in our democracy, no one should just take my word that we’re doing things the right way. So, in the months ahead, I will continue to engage with Congress to ensure not only that our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world. - President Barack Obama, 2013 State of the Union Address
In Part 1 of my discussion of the president's policy on targeted killings outside of acknowledged theaters of battle of persons deemed to be enemy combatants, I argued the policy was legal under existing authorities. It led to a spirited debate. While many disagreed with my analysis, I think there is a consensus that whatever the legal status of the current policy, it is inadequate and requires significant changes.
The administration is using the Authorization for the Use of Military Force passed by the House on Sept. 14, 2001, as one of the justifications for the lethal use of drones. As the only member of Congress who voted against this blank check, I believe now more than ever that we must repeal it.I wholeheartedly agree. But I believe an equally important issue is what authority and framework replaces the 2001 AUMF. My thoughts on this on the other side.
The first question presented regarding a new legal and policy framework for counterterrorism operations is whether we continue to address the issue from a military and national security framework or does the United States instead shift to a purely criminal law enforcement approach. The excellent Marcy Wheeler advocates for a criminal law enforcement approach. See, e.g., Setting Up a Department of Pre-Crime, Part One: Why Are We Doing This?
Ultimately — as I showed yesterday — the Administration has not been in the business of killing people for crimes they have committed, but for crimes they might commit in the future. And if Congress is going to try to make that legal for CIA especially without modifying the Constitution (heh), they would need to write some really extensive guidelines about what counts as a pre-crime (otherwise known, in the Administration’s language, an imminent threat). Indeed, that would be necessary before any court got stuck with this job.By adopting the language of "pre-crime," as opposed to the law of war framework of enemy combatants, Marcy is, implicitly, arguing that whether or not there was justification for treating counterterrorism operations as military operations in the past, that justification no longer exists.
But no one is talking about doing that work.
Which is really why this court is being considered as an option right now. Because no one wants to talk about what it means to kill in the name of pre-crime, and no one wants to make the difficult decisions about when killing in the name of pre-crime would be sound and when it wouldn’t be.
This is a reasonable argument. After all, no longer are we engaged in operations that more neatly fit the rubric of military operations—no Tora Bora, no organized Al Qaida resistance in conventional battle settings, etc.
For the sake of argument, let's assume this is true, how then would a counterterrorism operation function under a international criminal law enforcement regime? Does international law and existing treaties provide a workable framework?
Regarding counterterrorism operations, this subject has received scant attention in the United States. (By contrast see 2010 Remarks of Lanny Breuer on international law on corruption and bribery (PDF).)
However, internationally and in the United Nations, there has been significant thought applied to the issue. Emblematic of the thoughtfulness employed is Jean Paul Laborde's paper (PDF) discussing the issue:
In 1994 the United Nations General Assembly established that terrorism was “criminal and unjustifiable, wherever and by whomever committed”… “what ever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them”.1 By defining terrorism as a crime rather than as an international security issue, the General Assembly has chosen a criminal law approach rather than a war model of fighting terrorism.2 While the General Assembly categorized international terrorism in 1994 in terms of a criminal justice model as a serious crime, the United Nations Security Council categorized it, on 12 September 2001, in resolution 1368, “like any act of international terrorism, as a threat to international peace and security”, thereby applying a security rather than a crime model to such acts. It is widely accepted that a number of countries are strongly supporting the Security Council approach while other members of the international community feel more comfortable with the General Assembly method.Interestingly, Laborde focuses on prevention (or "pre-crime" actions):
Terrorism is one of the gravest crimes. Therefore, it would be logical to conclude that a great deal of attention should be paid to preventing possible terrorist attacks. Referring to the above-mentioned paper a successful proactive criminal justice approach to terrorism prevention would need ‘a strategy to permit intervention against terrorist planning and preparations before they mature into action. The goal is to proactively integrate substantive and procedural mechanisms to reduce the incidence and severity of terrorist violence and to do so within the strict constraints and protections of the civilian criminal justice system and the rule of law’ 4 (emphasis added).I think we can safely say that if a criminal law enforcement approach would prove to be efficacious in preventing terrorism, we can all hold hands and say "kumbaya"—that's the way to go. However, in the international context are states able to comply with their international obligations on preventing terrorism? Consider this international obligation:
Thus, countering terrorism through penal prevention would mean criminalizing acts that are committed BEFORE any terrorist acts take place. And indeed in recent years, the international community has moved in this direction. Most importantly there were efforts made to criminalize recruitment, training, supplying weapons to, support, financing, conspiracy, incitement, and glorification of terrorism.
The UNSC in its Resolution 1624(2005) further expanded this list of offences to incitement when it decided to “Calls upon all States to adopt such measures as may be necessary and appropriate and in accordance with their obligations under international law to:And what happens in states that can or will not do this or prevent terrorist activity and organization in their countries? Does a strict and exclusive criminal law enforcement approach work in such scenarios? In my view it does not.
(a) Prohibit by law incitement to commit a terrorist act or acts;
(b) Prevent such conduct;
(c) Deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct.”5
Two of the most noted actions against terrorist organizations occurred in 2011: (1) the operation to kill Osama bin Laden in Pakistan and (2) the killing by drone of Anwar Al Awlaki in Yemen. In both cases, a criminal law enforcement approach, for a variety of reasons, was not workable. In both cases, relying on the 2001 AUMF, President Obama ordered the use of military force.
It is these actions which put to the test whether our current policy provides a "durable legal and policy framework to guide our counterterrorism operations." I submit that it does not.
My principal concern is the lack of meaningful due process for the persons targeted. As I wrote in Part 1:
In the DOJ White Paper, the Obama Administration argues that the due process requirements are met when (1) an "informed, high level government official" (an undefined term) determines that a person "poses an imminent threat of violent attack against the United States," (2) where a capture operation would be unfeasible, and (3) when such operation is consistent with the laws of war. White Paper, p. 6.I believe that a durable legal and foreign policy framework should take the following approach: (1) the default position is that the threat of terrorism be addressed through a criminal law enforcement approach, compliant with international law and United States law; (2) if the president believes that there are situations where a criminal law enforcement approach is not adequate, he must inform the Congress of the specific situations where he wishes to depart from the criminal law enforcement approach and invoke his Commander in Chief powers; (3) for persons or organization targetted outside of the criminal law enforcement approach, the president should be required to make a showing to a neutral arbiter, with advocacy against the president's position presented by persons provided the requisite information and opportunity to be heard; and (4) if the president is given the authority to act as Commander in Chief, he must comply fully with international laws of war.
But this is truly not an answer for what we traditionally think of as due process. For lawyers, procedural due process usually means notice and an opportunity to be heard. The Obama Administration Department of Justice argues that traditional notions of notice and opportunity to be heard can not be afforded in these circumstances because of "the realities of war."
To me, this is a compelling argument in practical and legal terms. War includes as a major component, the concept of surprise. It is one thing to provide notice and opportunity to be heard once a person has been captured—the threat is no longer imminent. But while a person believed to be an enemy combatant is at large, the threat is real and the dangers, not only of attack against the country but to the military units involved in the conflict, remain active.
In my view, this explains the difference between the due process afforded a detained person classified as an "enemy combatant" and a person under a kill order.
But this difference does [not] make the process by which the Obama Administration analyzes kill orders in a non-theater of battle setting adequate. What is missing from the process is an advocate for the person who is subject to the potential kill order. Such an advocate, it seems to me, can be provided to the person who may be subject to the kill order. After all, the consequences are much more severe and final.
Is this approach unwieldy? Certainly. Does it require new legislation from Congress? Absolutely. But I believe that it provides the preliminary basis for a durable legal and policy framework that (1) is true to our values, (2) is likely to gain international acceptance and (3) will be the most effective manner of not only addressing active terrorist threats but prevent the creation of new terrorist threats.
In Part 3, I will outline the legislation and implementation of this approach and the forging of effective counterterrorism policy, considering existing US law, international law and other related issues.