Novel Arguments Offered in the KSM Debate

By Mat Trachok, NSJ Staff Editor -

According to the Washington Post, White House advisers recently stated that alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM) will most likely be tried before a military commission.  However, the debate still rages.  Last November, NSJ provided a brief overview of arguments for and against trying KSM in civilian courts.  While many of the arguments in the current debate are substantially similar to those put forward last fall, Foreign Policy magazine and the Washington Post recently published three unique arguments on the topic.

Writing in Foreign Policy, Benn Steil of the Council on Foreign Relations and Peter J. Wallison of the American Enterprise Institute argue that trying KSM in a civilian court could undermine global faith in America’s respect for the rule of law.  Steil and Wallison point out that President Obama and Attorney General Holder have “confidently predicted the death penalty for Mohammed, while simultaneously insisting that he will receive a ‘fair trial.’”  They contend that for a trial to be fair, the state must respect any outcome.  While they acknowledge the possibility of KSM being acquitted is remote, they insist that the possibility exists.  However, Steil and Wallison also believe it would be inconceivable for the Obama administration to let KSM go free.  Thus, they conclude, a civilian trial would be an obvious, cynical political cover for KSM’s execution.

In contrast, Tom Malinkowski, the Washington director of Human Rights Watch, argues that the United States should try KSM in a civilian court because he does not deserve the honor of a military trial.  According to Malinkowski, military trials are reserved for warriors; civilian courts are the proper venue for murderers, rapists, drug dealers, pimps, and terrorists.  Terrorist organizations actively seek to portray themselves as warriors, because it helps them justify their crimes and recruit glory seekers.  Trying KSM in a civilian court, Malinkowski argues, would both frustrate al Qaeda’s intentions and present KSM to the world as the common criminal he is.

Jack Goldsmith of Harvard Law School and Benjamin Wittes of the Brookings Institution take a third approach and argue that the Administration should not try KSM at all.  According to Goldsmith and Wittes, trying KSM before a military commission would create unacceptable legal and political risks.  Military commissions raise novel legal issues that might take years to sort out, which would render them ineffectual.  Moreover, the American Left and many Europeans see military commissions as illegitimate and would seek to ensure others also shared that view.  Yet Goldsmith and Wittes also argue that, even though the benefits of a civilian trial — the option of the death penalty, enhanced legitimacy abroad, and some catharsis — are significant, they are not worth the political costs that the Administration has been paying.  Instead, they believe President Obama should simply hold KSM and other terrorists indefinitely in military detention.  Indeed, they see military detention playing a vital role in incapacitating terrorists for some time.  Moreover, they point out that President Obama, Republicans, and the courts have already accepted the legitimacy of detention.  Instead of wasting energy arguing over which forum in which to try KSM and other terrorists, they contend that both sides should focus on defining the contours of the detention system.

NSJ will continue to cover the trial of KSM and other terrorists as new developments unfold.

Image courtesy of Getty Images, via Life Magazine

Obama Administration Offers Legal Defense of Drone Attacks, Targeted Killing

By John Cella, NSJ Current Events Editor -

A key component of the Obama administration’s fight against al Qaeda, the Taliban, and their affiliates has been the increasing use of drone strikes in Pakistan.  In a speech on Thursday, State Department Legal Adviser Harold Koh provided the clearest articulation thus far of the Administration’s legal defense of such drone attacks, justifying them as valid acts of self-defense under international law and as consistent with the law of armed conflict.  Koh pointed to the international law principles of distinction and proportionality, asserting that American drone attacks were limited to military targets and that incidental civilian casualties were proportional to the military advantage gained.  He also dismissed the claim that such attacks constitute “assassinations” illegal under U.S. domestic law.

Data compiled by the New America Foundation on the targets and death counts from U.S. drone strikes in Pakistan provides some basis on which to evaluate Koh’s claims of distinction and proportionality.  According to the New America Foundation data, of the 26 drone strikes carried out so far in 2010, 17 targeted members of the Taliban, 2 targeted members of al Qaeda, and 5 targeted members of the Haqqani network that is closely allied with the Taliban.  Eight of the attacks also targeted groups that were unclear from non-classified sources.  Since drone strikes began in 2004, the civilian fatality rate stands at about 32 percent of the total fatalities inflicted, although this is difficult to measure given that the range of potential deaths caused by all drone attacks ranged from 867 to 1,281.  However, although the number of drone attacks in 2010 is on pace to exceed the number in any previous year, the civilian fatality rate appears to have decreased to between 10.4% and 12.8%.

A video of the relevant section of Koh’s speech is available here.  For a fuller analysis of U.S. drone attacks in Pakistan from the New American Foundation, see “The Year of the Drone,” by Peter Bergen and Katerine Tiedemann.  For Kenneth Anderson’s comments praising Koh’s remarks, visit Opinio Juris.  Anderson had previously criticized the Administration’s failure to defend  drone attacks in the Weekly Standard.

Image courtesy of Getty Images, via the New York Times

Can Leaks Sink a Ship Even When It’s Not Under Attack? Criminalizing Outside Solicitation of Classified Information

By John Thorlin, NSJ Staff Editor -

In Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes (in the Spring 2009 issue of the American Journal of Criminal Law) Professor William E. Lee of the University of Georgia examines the legality of soliciting or possessing classified information. The issue became a controversial one in the wake of the American Israel Public Affairs Committee (AIPAC) spy scandal in 2005.  AIPAC lobbyists were charged with violating the Espionage Act by conspiring with a Defense Department official to pass classified information to reporters and Israeli government officials.  In May 2009, the government moved to dismiss the charges against the AIPAC lobbyists.  The New York Times reported at the time that government policy makers were “clearly uncomfortable” with the prospect of senior officials testifying under oath about the frequent use of leaks as a political communication technique.  Of course, journalists were also greatly relieved by the dismissal of those charges, because the incentives of soliciting leaks of classified information from administration officials would change dramatically if reporters could go to jail for performing their customary role as conduits to the public.

Current First Amendment doctrine suggests that reporters are allowed to passively receive newsworthy information even if it is illegally obtained by the source.  As Professor Lee points out, that interpretation of freedom of speech ignores important gray areas of inchoate crime.  “Is it illegal for a reporter to encourage the leaking of classified information by promising a government official anonymity? Is such an agreement a conspiracy?”

The silence of American jurisprudence on these questions seems somewhat mysterious given the decades of controversy regarding leaks in Washington.  Congress is constitutionally able to pass a law on this matter (thanks to United States v. Williams, 553 U.S. 285 (2008)), but it has so far chosen not to.  Professor Lee hypothesizes that Congress has not done so to this point because there is an unspoken political consensus that leaks are an important part of the democratic process.

Prosecutorial discretion plays a small role in preventing that consensus from getting out of hand, explaining why the AIPAC lobbyists (essentially working for the benefit of a foreign government) were initially prosecuted, while journalists like Bob Woodward are not charged for transmitting classified information.  However, even the AIPAC charges were dropped by the Justice Department, raising serious questions about when the government will prosecute those on the receiving end of classified information leaks.

The political effects of the substantive information transmitted through leaks often overshadow the damage that routine disclosure of such information does to national security.  Current global contingency operations against al-Qaeda, the Taliban, and affiliated forces do not seem to present the same kind of aggressive, unified foreign intelligence threat as was faced during the Cold War, and so there is a practical argument that the benefit of disclosure outweighs the costs to national security.  However, it seems inevitable that we will only realize that the balancing test has shifted once a particularly salacious leak has taken place.  Congress should remain conscious of the tradeoff and act accordingly.

Unmanned Robotics & New Warfare: A Pilot/Professor’s Perspective

By Mary L. Cummings -

As the director of the Massachusetts Institute of Technology’s Humans and Automation Laboratory, I was asked to comment from a technologist’s perspective at the recent symposium Drone Warfare: New Robotics & Targeted Killings on the panel  “Unmanned Robotics & New Warfare.”  My perspective is unique in that not only do I conduct millions of dollars of research in the development of technologies to enable one or more humans to control unmanned vehicles (i.e., robots) more easily, but I also look at these issues from the perspective of having flown advanced fighters in the U.S. Navy, namely the F/A-18 Hornet.

While there are many forms of unmanned vehicles in use in the military today (unmanned aerial vehicles (UAVs), unmanned ground vehicles (UGVs), underwater unmanned vehicles (UUVs), etc.), my comments will focus primarily on UAVs because they are currently used to perform targeted killings.  However, it should be noted that unmanned vehicles of all types could be expected to do the same at some point in the future.

The term “control” is a misnomer when discussing UAV control because, in most settings, human operators “supervise” the control of a UAV as opposed to directly or manually controlling it.  The distinction between supervisory and manual UAV control is critical.  Supervisory control is intermittent human interaction with automated systems using high-level knowledge-based cognitive processes such as judgment and experience, whereas manual control occurs through human skill-based direct vehicle manipulation, e.g., a pilot flying a plane with a stick and rudder.  In supervisory control, humans are more on the loop than in the loop.

It is precisely this move from manual to supervisory control for UAVs that has caused and will continue to cause ripples throughout the military because the basic skills once required of manned aircraft pilots are no longer needed.  UAV control today is effectively a “click and point” paradigm, so any person familiar with a basic PC or Mac® can be a UAV “pilot”.  Indeed, in my laboratory, we recently conducted formal studies demonstrating that with just three minutes of training people with no experience flying UAVs can effectively use an iPhone® to control a UAV carrying a webcam.  These novices could manipulate the system with such precision that many could read the 20/30 line of an eye chart through the UAV’s webcam.

Automation has advanced to such a degree that pilot stick-and-rudder skills are no longer needed in UAV applications.  Due to this advancement, the U.S. Army can train UAV operators to “fly” a UAV in about 10 weeks.  However, in a clear attempt to uphold a pilot-centric culture, the Air Force still requires two years of pilot training to control the exact same vehicles with the exact same capabilities.  The primary difference between the two services is that Air Force pilots are allowed to “fly” the vehicles through joystick actions, while Army operators literally command their vehicles through point and click interactions.  Unfortunately, temporal latencies inherent in remote control of UAVs like those of U.S. Air Force Predators mean that pilots who try to manually fly UAVs introduce significantly greater risk in operations: roughly half of all Predator accidents are due to pilot error.  As a result, the Air Force has recently mandated that all take-offs and landings must be fully automated.  The Army has adhered to this policy from the beginning of its UAV operations.

While UAV control can be a cognitively “easy” task, overall UAV operations are by no means easy.  These operations have introduced a number of complex interactions that require significantly more coordination across several agencies, including de-confliction with manned aircraft.  In addition, the use of UAV full-motion video and other sources that provide information from both manned and unmanned vehicles in near real-time has overloaded decision makers.  The massive influx of electronic data from a wide array of sensors has literally left the U.S. military drowning in data.  How to distill the voluminous amount of information available in real-time to aid decision-makers in critical life-or-death decisions is still an open area of research and development, and the problem only promises to get worse before it gets better.

The possible moral, legal, and ethical implications of unmanned technologies are many, and I will discuss just a few that are specific to my area of expertise.  First, while UAVs have not really changed how warfare is conducted in terms of targeted killings (i.e., we search, then detect, then kill), the remote and nearly constant presence of UAVs has significantly shortened what is known as the “kill chain”.  Prior to UAVs and the electronic networks that accompany them, finding, identifying, and then authorizing the use of deadly force against a suspected enemy often took days or even weeks to accomplish.  Now, these same processes occur in a matter of minutes or maybe hours.  Given these compressed time schedules and the well-documented ability of people to more readily engage in the use of deadly force at a distance (a phenomenon I describe as a “moral buffer”), as well as the relatively ease of UAV control that I previously discussed, it is quite possible that we could engage in more deadly interactions without the necessary time to reflect that older airborne-based systems inherently provided.  However, it is also possible that the networks of information and the near real-time interconnectivity of decision-makers could allow us to engage in safer, more ethical engagements because lawyers, politicians, and military leadership can literally all see the same video feed at the same time and come to consensus about the “right” decision to make.

Lastly, while the focus of this Symposium was the use of unmanned technologies for targeted killings, one social impact rarely addressed that I feel will be much more compelling in years to come is the use of these technologies for acts beyond those of targeted killings.  Given that almost anyone can now control a UAV with their iPhone®, it does not take a MIT futurist to imagine a scenario where such technologies could be used in terrorist acts both overseas and on U.S. soil.  For example, a small UAV could easily be flown into any sports stadium loaded with a deadly biological agent.  Such technologies may also be used in many more insidious ways, such as monitoring a point or person of interest, as these platforms are effectively mobile cameras that can transmit over a network.  Privacy could be redefined dramatically given the future ability of a UAV (or a bug-sized UGV) to follow you almost anywhere and transmit your every action over the Internet.

Mary (Missy) Cummings is an Associate Professor in the Aeronautics & Astronautics Department at the Massachusetts Institute of Technology.  She was an officer and a pilot in the U.S. Navy: one of the Navy’s first female fighter pilots.  More information about her research at HAL can be found at

Image courtesy of Singularity Hub.

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Lawyers: A Predator Drone’s Achilles Heel?

By Brett H. McGurk -

Killer mechanical robots the size of flies, giant predator drones piloted from an iPhone, together with a new mode of warfare embraced by the U.S. military and both political parties in Washington.  That is the upshot of the recent symposium – “New Robotics and the Legality of Targeted Killings” – hosted by the Harvard National Security Journal.  The technology is here to stay, and it is being deployed to kill designated enemies of the United States and its allies.  What are the legal and ethical implications of this trend?  And what rules govern killing by pilotless drones in some of the most remote regions of the world?

Surprisingly, we seem to have no idea.

As a former official overseeing national strategy in two warzones, I appreciate how law and ethics can take a back seat to new tactics that turn the tide against committed enemies.  So long as the tactics are legally available, whatever the theory, then the tactics will be used.  In Iraq, there have probably been more Predator drone strikes than anywhere else on earth – and with tremendous effect, degrading extremist networks and decapitating leadership cells.  Drone attacks alone are not strategically sound, but when combined with a campaign to secure the population against common enemies, the strategic advantages are proven and empirical.  The same strategy is now being employed in Afghanistan.

The Obama administration has, quite rightly in my view, also increased the targeting of al Qaida and Taliban leaders in the ungoverned tribal areas of northwestern Pakistan.  Many of these areas at the moment are inaccessible to Pakistani security forces, but a longer-term campaign plan will see Pakistani forces deploying in force to secure its population.  Until that can happen however, without sustained surveillance and drone strikes, we would accept a sanctuary for terrorist cells committed to killing U.S. forces in Afghanistan and threatening the stability of Pakistan (a country with 172 million people and nuclear weapons).  Ten years ago we paid a price for leaving such a sanctuary unmolested, and no U.S. President is likely to take that risk again.  So the drones are here, and they are here to stay.

But with increasing warfare there is an increasing need to explain what we are doing to the public – and how new tactics are grounded in the rule of law.  The silence from the Obama administration in this regard is troubling and may prove to be a core weakness in an otherwise successful military program.  Even if there is little chance that a legal challenge would shut down the drone campaign, the United States could easily lose the moral high ground, which the Obama team has worked so assiduously to retain.

Indeed, without a vigorous defense from the Obama administration, the vacuum is being filled by a new and respected chorus arguing that drone attacks are illegal and, perhaps, even tantamount to murder.  Mary Ellen O’Connell, a law professor at Notre Dame, argues that drone strikes are “unlawful” under any purported theory of international law (she knocks down all of them).  Philip Alston, the United Nations’ Special Rapporteur on Extrajudicial Executions, concluded that drone attacks in the Pakistan region “may well violate international humanitarian law and international human rights law.”  The Chief Prosecutor of the International Criminal Court, Luis Mereno Ocampo, has asserted jurisdiction over all NATO and U.S. forces in Afghanistan and said the court is conducting a “preliminary investigation” of alleged war crimes committed in that theater.  “Whatever the gravest war crimes are that have been committed,” he told the Wall Street Journal, “we have to check.”[1]

The Obama team needs to get ahead of this legal train.  In warfare, nothing always goes right, and it is inevitable that a drone strike will at some point go badly awry.  Our enemies might adapt and surround themselves with children, or live in schools, using human shields to invite public scrutiny in the event of their demise.  And while drones with GPS or laser-guided munitions are among the most precise weapons in the history of warfare, targeting errors and loss of innocent life are certain.  The United States should make its case now, therefore, to justify the drone program according to international legal standards.

That framework might be humanitarian law or it might be classic self defense, as proposed by my symposium colleague, Kenneth Anderson.  But whatever the theory, what is most important is that it is articulated, well reasoned, known to the public, and vehemently defended by administration lawyers and policymakers.  Saying nothing has allowed those opposed to one of our most successful military programs define the narrative – and could leave its operators high and dry when things go wrong.

There is yet another reason to define clear standards for the drone program:  “In warfare, what comes around – goes around.” Tad Oelstrom emphasized that simple maxim during the symposium, a point driven home by MIT’s Mary Cummings, who showed with alarming detail how easily drone technology is patterned and even piloted with an iPhone.  “Yes,” she said, “there is an app for that.”  We need rules for this untraveled road now – with sober reflection and foresight – rather than in the near future, and in reaction to unforeseen events, such as drone technology in the hands of terrorists with an Xbox.

The United States is certainly the dominant player in this field at the moment, but that will change as the technology is patterned and becomes more broadly available.  Policymakers in Washington would be well served, therefore, to do everything they can to retain the technological and legal edge by establishing the norms and standards of drone warfare before it is established by the Ivory Tower – or worse – our adversaries.

Brett H. McGurk is an International Affairs Fellow at the Council on Foreign relations.  He served as Special Assistant to the President and Senior Director for Iraq and Afghanistan during the George W. Bush Administration and as a special advisor to the National Security Council under President Obama.

Image courtesy of the AP via the Huffington Post

[1] Quoted in Shane Harris, Are Drone Strikes Murder?, National Journal 14 (January 9, 2010).


Obama Administration May Link GTMO Closure to Use of Military Commissions

By Brian Itami, NSJ Staff Editor -

It is increasingly likely that the U.S. government will use military commissions to help bring about the closure of its detention facility at Guantanamo Bay and to help resolve the question of what to do with the prison’s remaining detainees.  As reported by the Washington Post on March 5th, President Obama’s advisers plan to recommend that Khalid Sheik Mohammed (KSM) and four accomplices be tried before a military tribunal, a little over a month after the Department of Justice withdrew charges from a military court in preparation for a transfer to the Southern District of New York.  White House Press Secretary Robert Gibbs stated that no decision had been made, but noted “security and logistical concerns” around holding trials in Manhattan.  After the transfer of a Palestinian detainee to Spain in February, 188 detainees remain in Guantanamo.  More than a year after President Obama’s call for the closing of Guantanamo, the task force reviewing the detainees’ cases recommended the prosecution of 35 of the remaining detainees in military or civilian courts, the transfer or release of 110 prisoners, and the indefinite detention of 53 more.  Of the 110 detainees slated for repatriation or transfer, there are approximately 30 Yemenis, who would only be released upon an improvement of security conditions in their home state.

Despite the remaining questions about the current detainees, some elements of the President’s plan to close Guantanamo have become clearer.  As stated in a December 15, 2009 letter signed by five senior officials, the Obama administration intends to purchase the Thompson Correctional Center in Illinois to house the remaining detainees being held in Guantanamo.  While there is no timeline as of yet for the relocation of the detainees, the letter noted that the prison would first be renovated to exceed the security measures currently in place at the federal “Supermax” facility in Colorado.  Any transfers to the United States also would have to overcome the Congressional prohibition on relocation.  Keeping the KSM case in a military court is expected to help secure Republican support for the closure of Guantanamo, and the Obama administration has engaged in negotiations with Senator Lindsey Graham (R-SC) in an attempt to produce a politically viable solution.  The letter further explained that going forward, the government intends to conduct both military commissions and trials in federal courts.

The Administration’s proposals have raised concerns from those on both sides of the aisle.  Anthony Romero, Executive Director of the American Civil Liberties Union, objected to the idea of indefinite detentions, stating, “There is no statutory regime in America that allows us to hold people without charge or trial indefinitely.”  Similarly, Amnesty International issued a strong rebuke to the rumored decision, writing, “Each day that passes without accountability, remedy and resolution of detainee cases in line with U.S. human rights and humanitarian law obligations compounds the damage done to the vision of the Universal Declaration of Human Rights already wrought by actions taken by the USA in the name of ‘countering terrorism’ over recent years.”

At the same time, Senator Graham has been an outspoken critic of the Administration’s plans to close Guantanamo, stating in a February interview, “I’m trying to create a system that will allow us to fight this war within our values, capture enemy prisoners, find out what they know about enemy operations, keep them off the battlefield, then decide what system to put them into, military or civilian, but always focused on the fact that we’re at war.  I will help this administration, but we will never be able to close Guantanamo Bay going down the road they have chosen.  The American people don’t understand putting Khalid Sheikh Mohammed in civilian court in New York.”  Graham also noted the 20% recidivism rate amongst former Guantanamo detainees as a reason to question both the release of prisoners and his own confidence in Deputy National Security Adviser for Homeland Security and Counterterrorism John Brennan.

For information about the current Guantanamo detainees, see this Washington Post graph of the declining number of detainees since 2002 as well as the current composition of those remaining.

Image courtesy of the Associated Press, via the Guardian

NSJ Analysis: Turning Off Autopilot: Towards a Sustainable Drone Policy

As the intensity of the unacknowledged U.S. drone campaign against al-Qaeda and Taliban operatives in Pakistan has continued to increase throughout 2009 and into 2010, questions about the drone program have grown louder.  To preserve the legitimacy and effectiveness of drones as an instrument of U.S. security policy, it is essential that government officials carefully evaluate and address the legal, moral, practical, and strategic concerns of critics.

Concerns about the use of Unmanned Aerial Vehicles (UAVs) or drones to conduct targeted killings falls into two related categories: moral and legal questions concerning the legitimacy of drone operations and practical considerations regarding their strategic effectiveness.

Moral and Legal Considerations

Perhaps the most intractable legal question concerning drone strikes is what type of law should apply to them.  Proponents of targeted killings invoke the right of self-defense against armed attack and turn to the laws of war to justify drone attacks.  Humanitarians and others counter that because many drone attacks are occurring in countries with which the U.S. is not at war (e.g. Pakistan and Yemen), peacetime humanitarian law applies.

In fact, it would be imprudent to suggest that one regime would always apply to the exclusion of the other.  In practice, strikes must be evaluated on an individual basis under a regime that reflects the nature of the target being pursued and the theater in which the strike occurs.  Strikes against terrorists and insurgents on the periphery of a war zone will inevitably be held to a different standard than strikes against other actors in other parts of the world.  The search for a single over-arching legal regime to govern the use of drones may be inhibited by the diversity of theaters and uses to which drones have been applied.

Regardless of the legal regime applied, at least four considerations are central to determining the morality and legality of the drone campaign:  proportionality, discrimination, the agent carrying out the strikes, and the process used to make targeting decisions.


The proportionality of drone strikes must be viewed relative to the threat that they are designed to counter.  Ostensibly, the U.S. Government is attacking al-Qaeda operatives intent on unleashing catastrophic terrorist attacks against the United States and Taliban insurgents determined to kill agents of the Afghan, Pakistani, American and other NATO governments.  When considered relative to the available policy alternatives, few analysts dispute the proportionality of drone strikes.


Instead, opponents of drone strikes focus their critiques on alleged shortcomings in the capacity of the drone campaign to discriminate between combatants and non-combatants.  The drone campaign is estimated to have killed over 1200 people since 2004.  The morality and legality of the drone strike policy hinges on the veracity of conflicting estimates regarding the civilian casualty rate.

The drone campaign is indisputably effective at killing al-Qaeda and Taliban leaders.  The Long War Journal reports that from January 2008-January 2010, drone strikes killed at least 15 high-value al-Qaeda targets, 1 high-value Taliban leader, and 16 mid-level al-Qaeda and Taliban leaders.

Peter Bergen and Katherine Tiedemann at the New America Foundation have released the most comprehensive analysis of the U.S. policy of UAV drone strikes against al-Qaeda and Taliban operatives in Pakistan to-date.  Bergen and Tiedemann estimate that approximately one out of every three fatalities caused by drone strikes is civilian.  Their estimate, like most other sources, is based on “reliable news media reports.”  In contrast, the Pakistani government has alleged a civilian fatality rate as high as 98% while other sources, like the Long War Journal, suggest figures as low as 10%.  Although it is clear that both combatants and non-combatants are being killed by drone strikes, the discriminatory effectiveness of the drone campaign remains difficult to assess.


Others have expressed concern regarding who is authorized to execute drone strikes.  Public reporting indicates that both the military services and the CIA are carrying out drone missions.  To the extent that a civilian agency is conducting lethal operations outside of a war zone in a highly public fashion and on an unprecedented scale, this raises important questions about the U.S. Government’s principles and procedures regarding the use of deadly force.


It follows then that process should be another focus of concern.  How are targets selected?    Under what circumstances can strikes be carried out?  Who can be targeted?  This last question has been asked with increased urgency since Director of National Intelligence, Dennis Blair, acknowledged in Congressional Testimony that even U.S. citizens abroad could be targeted for killing under certain circumstances.  For obvious reasons, the processes that drive the drone campaign remain entirely confidential.

Practical Considerations

Beyond, but not separate from, the moral and legal dimensions of the drone campaign, it is important to assess the strategic effectiveness of the drone campaign.  Here also, there is significant disagreement.  The diversity of perspectives in this area is best reflected in the contrast between the enthusiastic views of the U.S. Government, the cautioned analysis of Peter Bergen and Katherine Tiedemann, and the categorical opposition of counterinsurgency experts David Kilcullen and Andrew Exum to the drone campaign in Pakistan.

The U.S. Government is convinced that the drone campaign is strategically productive.  The pace of drone strikes continues to increase.  A total of 58 strikes were launched in Pakistan in 2009 and 18 have been launched this year thru Feb. 24th.  Tactically, the U.S. Government has clearly assessed that drone strikes are effective at disrupting al-Qaeda and Taliban operations.

However, Bergen and Tiedemann dispute this assessment with a number of observations:

  • al-Qaeda continues to train Western recruits in Pakistani camps
  • Taliban operations in Afghanistan and Pakistan continue
  • Drone strikes have lost the element of surprise
  • The United States loses valuable intelligence by killing rather than capturing terrorist and insurgent leaders

Bergen and Tiedemann and prominent terrorism scholars including Bruce Hoffman caution that the drone campaign may be a tactical success belying a broader strategic failure.

David Kilcullen and Andrew Exum made precisely this claim in an op-ed some months ago.  They argued that the U.S. preoccupation with killing terrorist leaders both distracts from and undercuts what should be the core American mission in Pakistan — reducing Taliban and al-Qaeda success at intimidating the Pakistani populace into submission.

A Brave New World

Most analysts believe that drone strikes will continue unabated in the near-term.  As Bergen and Tiedemann note, it seems that the drone strike policy is “the least bad” option available to policymakers in a very difficult circumstance.

Finally, it is not too early for the United States to begin thinking about what it should be doing today to deal with the eventuality that other states and even non-state actors will employ drones against U.S. interests.  Should the United States seek to establish norms of use and non-use as it did with nuclear weapons, pursue a policy of counter-proliferation as it did after the advent of the cruise missile, or resign itself to the design of tactical counter-measures to address the inevitability of enemy drones?  These important questions should be considered alongside the more immediate moral, legal, and practical considerations discussed in this article.

Image courtesy of

NSJ Analysis: Obama Signs Bill Extending PATRIOT Act Provisions Without Changes

On Saturday, February 27th, President Obama signed a one-year extension of the three expiring sections of the USA PATRIOT Act.  These sections are Section 215 (the so-called “library records” provision), Section 206 (involving “roving wiretaps”), and Section 207 (the so-called “lone-wolf” provision).  Last week, both the House and Senate voted to extend the sections without change, despite the fact that both the House and Senate Judiciary Committees had extensively debated and passed bills last year that would have made significant changes to these provisions.  In addition to amending these sections, the House and Senate bills would have added significant limitations to the FBI’s use of National Security Letters.  For previous NSJ analysis of the House and Senate Judiciary Committee bills, see here and here.

Congress’s decision to extend these provisions without change has angered many civil liberties advocates, as they view the use of Section 215 and National Security Letters as particularly invasive practices.  Laura W. Murphy, Director of the ACLU Washington Legislative Office, stated:

Congress refuses to make reforming the Patriot Act a priority and continues to punt this crucial issue down the road.  Once again, we have missed an opportunity to put the proper civil liberties and privacy protections into this bill.  Congress should respect the rule of law and should have taken this opportunity to better protect the privacy and freedom of innocent Americans.  We shouldn’t have to live under these unconstitutional provisions for another year.

Republican Senator Jeff Sessions, on the other hand, applauded the choice to extend the sections without change, stating:

Recent terror attacks, such as those at Fort Hood and on Christmas Day, demonstrate just how severe of a threat we are facing.  This extension keeps Patriot’s security measures in place and demonstrates that there is a growing recognition that these crucial provisions must be preserved.

Senator Sessions’s depiction of the recent terrorism-related events captures what is almost certainly the explanation for Congressional Democrats’ choice to turn away from their bills.  In particular, the Obama administration (and by extension Democrats generally) has come under a great deal of fire for the attempted Christmas Day bombing as well as the handling of Umar Abdulmutallab subsequent to his arrest.  With midterm elections approaching and Democrats already facing a bleak election season, they almost surely did not want to risk taking another action that would allow them to be branded as soft on terror.  That said, it is noteworthy that Congress extended the three sections for only one year, whereas the House and Senate Judiciary Committee bills would have extended the sections (albeit with significant changes) through 2013.  Thus, it could be that Congressional Democrats wish to table the issue until the political climate is more favorable and then implement the proposed changes at that later date.

Image Courtesy of CBS News

Alleged American Terrorists Make Torture Claim

By Jonathan Abrams, NSJ Staff Editor -

Five American Muslims who were detained in Pakistan on suspicion of terrorism have alleged torture by American and Pakistani authorities.  The men, all from the Washington, DC area, were detained in December shortly after arriving in Pakistan.  The Pakistani government has accused them of plotting terrorist attacks in Pakistan and seeking to join Islamist militants fighting U.S. troops in neighboring Afghanistan.

On February 2nd one of the men tossed a tissue to reporters while being led into court.  The tissue read, “Since our arrest, the U.S., F.B.I., and Pakistani police have tortured us.  They are trying to set us up.  We are innocent.  They are trying to keep us away from public, media and families and lawyers.  Help us.”

A spokesman for the American Embassy in Islamabad, Richard W. Snelsire, said the United States “categorically rejects those allegations,” but takes seriously the claims and will ask Pakistan to address the accusations.

This will only further complicate current U.S.-Pakistan relations, as the United States has been pressing an often-reluctant Pakistan to crack down on militants, many of whom are believed to be carrying out attacks on U.S. and NATO forces.

For more information see here.

Image courtesy of the Christian Science Monitor

NSJ Analysis: FBI Closes Amerithrax Investigation; Harvard Poll Questions Public’s Preparedness for Anthrax Attack

In September and October of 2001, an anonymous source dropped a white powder containing deadly anthrax into the mail.  The attack killed five people; threatened the safety of Congress, the media, and the public at large; and rekindled the fears still raw from the September 11th attacks.  The FBI ultimately focused on Bruce Ivins as a suspect, a biologist at the Army’s Fort Detrick biodefense lab, who had the access and knowledge necessary to carry out the plot.  Over the past nine years, the FBI has conducted a far-reaching and costly investigation, looking into Ivins’s colleagues and tracing every scientist who had access to his supply of anthrax.  In all, the investigation spanned six continents, included 9,100 interviews, and was tasked by 27 FBI and postal service agents.  (See the article in the Washington Post.)  However, prosecutors never had the opportunity to officially charge or try Ivins, who committed suicide in 2008 while in government custody.

Nonetheless, last week the FBI closed the case, clearing other scientists of culpability and deciding only Ivins could have committed the terrorist act.  On February 19, 2010, the Department of Justice released its Amerithrax Investigative Summary, which begins,

In its early stages, despite the enormous amount of evidence gathered through traditional law enforcement techniques, limitations on scientific methods prevented law enforcement from determining who was responsible for the attacks. Eventually, traditional law enforcement techniques were combined with groundbreaking scientific analysis that was developed specifically for the case to trace the anthrax used in the attacks to a particular flask of material.  By 2007, investigators conclusively determined that a single spore-batch created and maintained by Dr. Bruce E. Ivins at the United States Army Medical Research Institute of Infectious Diseases (“USAMRIID”) was the parent material for the letter spores.  An intensive investigation of individuals with access to that material ensued. Evidence developed from that investigation established that Dr. Ivins, alone, mailed the anthrax letters.

In addition to access, Ivins logged excessive nighttime hours, was absent during the time the envelopes were mailed, and could have made the trip to the mailbox in Princeton, NJ, during that window.  Critics say that without physical or other decisive evidence, the investigation should not be closed.  Regardless, the Justice Department is satisfied with its result.  Assistant Director in Charge Joseph Persichini, of the FBI Washington Field Office, stated categorically that, “Bruce Ivins was responsible for the death, sickness, and fear brought to our country by the 2001 anthrax mailings.”

Normally, when a suspect is not formally indicted, the evidence against him is not publicly released, in part due to the presumption of innocence of criminal defendants.  However, according to the FBI’s website, the U.S. Attorney for the District of Columbia stated at the press conference that “because of the extraordinary public interest in this investigation . . . we are compelled to take the extraordinary step of providing the victims, their families, Congress, and the American public with an overview of some recent developments as well as some of our conclusions.”  The Amerithrax Investigative Summary, 96 pages in length, chronicles in detail the investigation conducted and the evidence obtained.  On the last page, its brief conclusion states, “Based on the evidence set forth above, the investigation into the anthrax letter attacks of 2001 has been concluded.”

Critics of the investigation will no doubt continue to question its processes and the substance of the evidence uncovered.  There is, however, a larger national security issue lurking between the lines.  Nine years later, is the U.S. population prepared to deal with a widespread anthrax attack?  A December 2009 poll conducted by the Harvard School of Public Health found that while 89% of respondents would follow recommended procedures to obtain necessary antibiotics, almost 40% would not begin taking them immediately, as directed.  That study, at a minimum, raises concerns about how effective federal, state, and local programs would be at reducing the effects of such a bio-terror attack, even assuming those programs themselves are operating under ideal conditions.

Image courtesy of the AP, via the Washington Post