Below is the discussion memo I sent to participants in the third panel on the Monday, April 10 conference on Legislating the War on Terror. This panel is titled, Use of force short of war in the war on terror:
In the first panel in this day-long conference, we debate the question of whether and to what extent the war on terror, over the long run, should be conducted under the legal authority of the president, the president's executive power, or instead under legislation enacted by Congress, and moreover what is the appropriate role for the courts. In panels 2 and 3, we assume that, on whatever grounds, we have concluded that Congress should legislate in various areas. There are many areas in which Congress could, and of course has already, legislated - terrorism and financing, the McCain amendment, etc. There are also many issues of great controversy, in the debate between security and civil liberties - having limited time on the program - and we have selected two that have seemed important and controversial, detention/interrogation issues and, in panel 3, use of force issues. There are, of course, many more - surveillance, proposals for special terrorism courts, etc. But we've limited ourselves to these two.
Use of force questions have taken a back seat, in the last year or more, to other controversial issues of the war on terror such as interrogation practices and Guantanamo. However, they have been a controversial part of the debate since 9-11 and are likely to be so again. What uses of force are at issue from the standpoint of something that Congress might see fit to legislate or regulate in some way?
One the one hand, the case of the use of force that rises to the legal definition of armed conflict invokes an already well-defined set of use of force rules under international humanitarian law and absorbed into US law and military regulation.
On the other hand, at the opposite extreme, we have defined legal rules for uses of force that operations that are accepted as being criminal justice and law enforcement. The purpose for using force in those situations is to, literally, "arrest" someone and take them into custody. Deadly force might be involved in seeking to make that happen, but the fundamental purpose is to occasion surrender pursuant to an arrest. Moreover, the rules of criminal law enforcement do not permit the acceptance of collateral damage to third parties in the way accepted in armed conflict - police are not permitted to say, well, in apprehending Joe, we had acceptable collateral damage - third party protection comes first in police operations. And beyond that, there are the questions of whether persons picked up in such raids abroad or domestically have various constitutional rights, Miranda warnings, etc., further to a prosecution in US courts - the policies of the Clinton years pre-9/11.
The first question, then, about the use of force is whether these two paradigms exhaust the field for use of force in the war on terror. Are all US government uses of force reducible to one or the other of these conditions, either war, governed by the rules of armed conflict, on the one hand, or else law enforcement operations, governed by criminal justice rules, on the other?
Or, alternatively, should we seek to create a third category of the use of force that is neither armed conflict nor criminal justice and, if so, what should the legal rules for it be that Congress migh adopt?
What kinds of situations might raise such a possibility? Let me suggest three.
One is targeted killings and assassinations - for example, the Yemen predator drone strike from several years ago. That strike raised a number of questions - about the legal status of operations on another sovereign's territory, about collateral damage to third parties, about the certainty of the intelligence information involved in determining the target, and about the question of whether the US should have sought not to kill the target, but to arrest him. How should such a situation be conceived for purposes of law and regulation? Is it part of a legal armed conflict, against Al Qaeda and terrorist groups, in which the applicable law is international humanitarian law? Or, because it takes place outside of the zones where armed conflict is indisputably underway - Afghanistan and Iraq - it is not legally part of an armed conflict and hence does not fall under the law of war? In that case, ought it to be a criminal law enforcement operation, seeking to make an arrest, rather than kill a target?
Or should the Yemen strike be conceived as a third category, with its own set of rules? And in that case, what should (a) the substance of those rules be and (b) from the standpoint of Congress, what kind of oversight should apply to such operations - who should approve those operations, who should be informed, given that they involve, on the one hand, national security and foreign policy powers of the president but are acknowledged not to be war. There are, in other words, both substantive and procedural aspects to these cases.
The Yemen strike - targeted killing and assassination - does not exhaust the possible cases, however. A second kind of situation might involve a "snatch" - where the purpose of the operation is not to kill, but to seize the person for intelligence purposes, for questioning. Should every case of that kind be conceived as a law enforcement arrest, subject to regular law enforcement procedures and protections? Is it possible that the US might undertake an abduction, rather than a targeted killing, in order to interrogate the person - leaving to the second panel the question of what permissible methods of interrogation might be used, must the abduction itself be conducted as a law enforcement operation, with Miranda warnings and so on, as has been done in past years? Or should Congress define another type of operation, an intelligence detention, with its own rules? In that case, what should the substance of those rules be - how does one establish the permissible level of force, collateral damage, etc.? Does the level of certainty you have about the target affect the kind of force you can use? What about permissible collateral damage? And again procedurally, how should such actions be monitored and what role should Congress have in overseeing it, and should it vary by the agency that is involved, CIA versus Special Forces, for example?
A third case might be the targeting of objects for destruction, rather than people. Should the use of force in all such cases be considered as legal armed conflict? Consider the case of the Sudan pharmaceutical factory during the 1990s - was that actually a matter of armed conflict? Should localized uses of force against objects fall under a special regime that is a matter of covert operations not considered war, or should it all be considered "armed conflict," and under its rules?
One may conclude any number of things about this:
One may conclude that the proper legal regulation falls into two categories - armed conflict or criminal law enforcement - and that there should be no third category.
One may conclude that a third category should be defined, with its own set of substantive rules and procedural oversight by Congress.
One may conclude that although there should be a defined third category, its substantive rules for the use of force should be those of armed conflict in any case - with respect to proportionality, collateral damage, etc.
One may conclude that all these actions really are part of a genuine, worldwide armed conflict, governed by the laws of war.
One may conclude that the necessary interactions (in order to successfully pursue the war on terror with foreign cooperation) with foreign police and intelligence agencies precludes all or nearly all of these acts, and that if they take place on foreign soil, they should be undertaken by local authorities - there is never an appropriate place for such uses of force by US actors directly.
Other kinds of conclusions?
I have wanted to raise this discussion in part because it has dropped out of sight a bit in relation to other controversial issues about the war on terror, such as surveillance and interrogation/detention. The question of "covert" uses of force will not go away and seems to be an essential part of what comprehensive legislation on the war on terror would need to cover.