Defending the Boundary: Constraints And
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Case 1:15-Cv-01954-CM Document 46 Filed 10/03/15 Page 1 of 50
Case 1:15-cv-01954-CM Document 46 Filed 10/03/15 Page 1 of 50 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ................................................................................ x AMERICAN CIVIL LIBERTIES UNION and THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs, v. 15 Civ. 1954 (CM) U.S. DEPARTMENT OF JUSTICE, including its components the OFFICE OF LEGAL COUNSEL and OFFICE OF INFORMATION POLICY, DEPARTMENT OF DEFENSE, DEPARTMENT OF STATE, and CENTRAL INTELLIGENCE AGENCY, Defendants. ................................................................................ x CONSOLIDATED MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT, AND IN SUPPORT OF DEFENDANTS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Case 1:15-cv-01954-CM Document 46 Filed 10/03/15 Page 2 of 50 TABLE OF CONTENTS PAGE PRELIMINARY STATEMENT .....................................................................................................2 BACKGROUND .............................................................................................................................3 ARGUMENT ...................................................................................................................................5 I. THE DEFENDANT AGENCIES AND COMPONENTS CONDUCTED REASONABLE SEARCHES..................................................................................7 II. THE WITHHELD DOCUMENTS AND INFORMATION ARE EXEMPT FROM DISC LOSURE UNDER FOIA ................................................11 A. The Government -
Artillery and Counterinsurgency: the Soviet Experience in Afghanistan
WARNING! The views expressed in FMSO publications and reports are those of the authors and do not necessarily represent the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government. Artillery and Counterinsurgency: The Soviet Experience in Afghanistan CALL Publicaction #98-17 by Mr. Lester W. Grau Foreign Military Studies Office, Fort Leavenworth, KS. This article first appeared in the May-June 1997 Field Artillery Journal The leverage that technology offers depends on the circumstances which shape combat such as the theater, the opponent and the objective. Guerrilla war, a test of national will and the ability to endure, negates many of the advantages of technology. The Russian Army, and its predecessor--the Soviet Army, fought the most-recent, large-scale counterinsurgencies pitting technologically-advanced mechanized forces against dedicated guerrillas. The Russians are publishing many of their lessons learned now. Although some of these have no direct application to the United States Army, others do and military professionals need to be aware of how other militaries attempt to solve contemporary problems. The Soviet Army invaded Afghanistan on Christmas Eve 1979 with TO&E divisions equipped and trained to fight conventional, maneuver warfare on rolling plains. They came to replace an ineffective communist leader, not to fight an insurgency. They planned to stabilize the situation, occupy garrisons and assist the Afghanistan government while the Afghan government forces fought the guerrilla resistance.1 Soon, however, "mission creep" set in and Soviet forces were locked in a counterinsurgency fight in rugged mountains and desert--a fight for which they were neither equipped nor trained. -
Targeted Killing: Self-Defense, Preemption, and the War on Terrorism
Journal of Strategic Security Volume 2 Number 2 Volume 2, No. 2: May 2009 Article 1 Targeted Killing: Self-Defense, Preemption, and the War on Terrorism Thomas Byron Hunter Follow this and additional works at: https://scholarcommons.usf.edu/jss Part of the Defense and Security Studies Commons, National Security Law Commons, and the Portfolio and Security Analysis Commons pp. 1-52 Recommended Citation Hunter, Thomas Byron. "Targeted Killing: Self-Defense, Preemption, and the War on Terrorism." Journal of Strategic Security 2, no. 2 (2010) : 1-52. DOI: http://dx.doi.org/10.5038/1944-0472.2.2.1 Available at: https://scholarcommons.usf.edu/jss/vol2/iss2/1 This Article is brought to you for free and open access by the Open Access Journals at Scholar Commons. It has been accepted for inclusion in Journal of Strategic Security by an authorized editor of Scholar Commons. For more information, please contact [email protected]. Targeted Killing: Self-Defense, Preemption, and the War on Terrorism Abstract This paper assesses the parameters and utility of “targeted killing” in combating terrorism and its role within the norm of state self-defense in the international community. The author’s thesis is that, while targeted killing provides states with a method of combating terrorism, and while it is “effective” on a number of levels, it is inherently limited and not a panacea. The adoption and execution of such a program brings with it, among other potential pitfalls, political repercussions. Targeted killing is defined herein as the premeditated, preemptive, and intentional killing of an individual or individuals known or believed to represent a present and/or future threat to the safety and security of a state through affiliation with terrorist groups or individuals. -
Just & Unjust Targeted Killing & Drone Warfare
Just & Unjust Targeted Killing & Drone Warfare Michael Walzer Abstract: Targeted killing in the “war on terror” and in war generally is subject to familiar and severe moral constraints. The constraints hold across the board; they don’t change when drones are the weapon of choice. But the ease with which drones can be used, the relative absence of military risks and political costs, makes it especially tempting not only to use drones more and more, but also to relax the constrain- ing rules under which they are used. It seems clear that the rules have, in fact, been relaxed in the course of the American experience with drone warfare–by presidential decision and without public debate. This essay is an argument for the opening up of the decision process to democratic scrutiny and in defense of the familiar constraints. It is always a hard question whether new technolo- gies require the revision of old arguments. Targeted killing isn’t new, and I am going to repeat an old ar- gument about it. But targeted killing with drones? Here the old argument, though it still makes sense, leaves me uneasy. First things first. Untargeted killing, random kill- ing, the bomb in the supermarket, café, or bus station: we call that terrorism, and its condemnation is criti- cally important. No qualifications, no excuses: this is MICHAEL WALZER , a Fellow of wrongfulness of the first order. We need to be firm in the American Academy since 1971, is Professor Emeritus of Social Sci- rejecting all apologetic efforts on behalf of terrorists. ence at the Institute for Advanced But someone who takes aim at a particular person, a Study. -
The Evolution of Law and Policy for CIA Targeted Killing
09__RADSAN__MURPHY_V12_01-09-12.DOCX (DO NOT DELETE) 2/9/2012 3:54 PM The Evolution of Law and Policy for CIA Targeted Killing Afsheen John Radsan* and Richard Murphy** INTRODUCTION Just suppose. The Attorney General, lanky as the President, walks into the Oval Office to join a meeting. The top law enforcement officer is slumped down with apparent bad news. He avoids eye contact with the Commander-in-Chief. “Mr. President,” he says looking down at the coffee table, “the ACLU believes our drone program is illegal.” Silence. (The President and the Attorney General both, of course, maintain links to the human rights community, an important part of their political base.) The President’s other advisers fidget and twitch. The Vice President adjusts the coaster under his drink. Beads of perspiration form on some faces. The Secretary of State and the Secretary of Defense look for the exit; the law is not their thing. The President is cool. “Could you be more specific,” he says, tapping his finger on a black briefing book. The Attorney General looks up from the table. “The drone strikes in Pakistan. Remember, the program Leon was not supposed to talk about with the media.”1 The President smiles. “Yes, I know that. But which laws are they talking about?” After an awkward pause, the President, himself a highly sophisticated lawyer, suggests, “Let’s talk this through some more.” The Attorney General agrees. After the lawyer-to-lawyer exchange, the other advisers relax. Maybe the CIA drone strikes are not illegal after all. Or maybe the apparent illegality does not matter that much. -
Extrajudicial Killing with Near Impunity: Excessive Force by Israeli Law Enforcement Against Palestinians
\\jciprod01\productn\B\BIN\35-1\BIN104.txt unknown Seq: 1 7-FEB-17 13:24 EXTRAJUDICIAL KILLING WITH NEAR IMPUNITY: EXCESSIVE FORCE BY ISRAELI LAW ENFORCEMENT AGAINST PALESTINIANS Emily Schaeffer Omer-Man* I. INTRODUCTION ............................................ 116 R II. RECENT ALLEGED EXTRAJUDICIAL KILLINGS IN ISRAEL- PALESTINE ................................................ 119 R III. A PATTERN OF EXCESSIVE FORCE AGAINST PALESTINIANS ............................................. 135 R A. Arenas of Excessive Violence against Palestinians ...... 136 R B. The Disparity in Law Enforcement Responses to Palestinians versus Jews ............................... 140 R * The author holds a JD from the University of California, Berkeley School of Law (Boalt), and is an American-Israeli human rights attorney at the Michael Sfard Law Office in Tel Aviv, where she currently serves as senior counsel and acting director. She has been a member of the legal team of Israeli human rights NGO, Yesh Din, for over a decade, and for the last eight years has served as Legal Director of the organization’s Accountability of Security Personnel project. In that capacity, she has represented over 500 Palestinian victims of alleged crimes committed against them or their property by Israeli police, soldiers, and other security personnel. The author is also a legal advisor to Israeli NGOs Breaking the Silence and Peace Now, among others, and represents individuals and communities in bringing human rights claims before the Israeli courts, specializing in International Humanitarian Law and International Human Rights Law and their application to the territories occupied by Israel in 1967. The author wishes to express her gratitude to Shelley Cavalieri, Miri Sharon and Michael Schaeffer Omer-Man for their excellent comments and feedback on previous drafts of this Article, as well as to the remarkable editors of the Boston University International Law Journal for their collaboration on this project and their dedication to bringing this important issue to light. -
Joint Force Quarterly, Issue
Issue 100, 1st Quarter 2021 Countering Chinese Coercion Remotely Piloted Airstrikes Logistics Under Fire JOINT FORCE QUARTERLY ISSUE ONE HUNDRED, 1 ST QUARTER 2021 Joint Force Quarterly Founded in 1993 • Vol. 100, 1st Quarter 2021 https://ndupress.ndu.edu GEN Mark A. Milley, USA, Publisher VADM Frederick J. Roegge, USN, President, NDU Editor in Chief Col William T. Eliason, USAF (Ret.), Ph.D. Executive Editor Jeffrey D. Smotherman, Ph.D. Senior Editor and Director of Art John J. Church, D.M.A. Internet Publications Editor Joanna E. Seich Copyeditor Andrea L. Connell Book Review Editor Brett Swaney Creative Director Marco Marchegiani, U.S. Government Publishing Office Advisory Committee BrigGen Jay M. Bargeron, USMC/Marine Corps War College; RDML Shoshana S. Chatfield, USN/U.S. Naval War College; BG Joy L. Curriera, USA/Dwight D. Eisenhower School for National Security and Resource Strategy; Col Lee G. Gentile, Jr., USAF/Air Command and Staff College; Col Thomas J. Gordon, USMC/Marine Corps Command and Staff College; Ambassador John Hoover/College of International Security Affairs; Cassandra C. Lewis, Ph.D./College of Information and Cyberspace; LTG Michael D. Lundy, USA/U.S. Army Command and General Staff College; MG Stephen J. Maranian, USA/U.S. Army War College; VADM Stuart B. Munsch, USN/The Joint Staff; LTG Andrew P. Poppas, USA/The Joint Staff; RDML Cedric E. Pringle, USN/National War College; Brig Gen Michael T. Rawls, USAF/Air War College; MajGen W.H. Seely III/Joint Forces Staff College Editorial Board Richard K. Betts/Columbia University; Eliot A. Cohen/The Johns Hopkins University; Richard L. -
Case Notes the Public Committee Against Torture in Israel V the Government of Israel*
CASE NOTES THE PUBLIC COMMITTEE AGAINST TORTURE IN ISRAEL V THE GOVERNMENT OF ISRAEL* THE ISRAELI HIGH COURT OF JUSTICE TARGETED KILLING DECISION Case Note: Targeted Killing Decision CONTENTS I Introduction A Israel’s Policy of Targeted Killing B Background to the Case C Main Focus and Structure of the Note II Summary of Judgment A Factual Background B The General Normative Framework 1 International Armed Conflict 2 Combatants 3 Civilians 4 Review by the Court III Critique of Selected Issues A Four-Fold Test 1 Well-Based Information 2 Less Drastic Measures 3 Investigations 4 Proportionality B Adequacy of the Four-Fold Test IV Conclusion I INTRODUCTION A Israel’s Policy of Targeted Killing On 9 November 2000, Hussein ‘Abayat, a senior Fatah Tanzim activist, was driving his car on a busy street in his village in the West Bank. An Israel Defence Forces (‘IDF’) helicopter fired three missiles at him, killing him and two women, Rahma Shahin and ‘Aziza Muhammad Danun, who were standing outside a house.1 ‘Abayat’s killing, less than two months after the al-Aqsa * The Public Committee Against Torture in Israel v The Government of Israel (2006) HCJ 769/02 (‘PCATI’), available in English from <http://elyon1.court.gov.il/eng/home/ index.html> at 18 October 2007. 1 Yael Stein, Israel’s Assassination Policy: Extra-Judicial Executions (B’Tselem Position Paper, January 2001) (Maya Johnston trans, 2001) 1. Melbourne Journal of International Law [Vol 8 Intifada began, marked the start of Israel’s policy of targeted killings.2 Israel has since publicly confirmed that the practice of targeted killings occurs under government orders. -
When Targeted Killing Is Not Permissible: an Evaluation of Targeted Killing Under the Laws of War and Morality
COMMENTS WHEN TARGETED KILLING IS NOT PERMISSIBLE: AN EVALUATION OF TARGETED KILLING UNDER THE LAWS OF WAR AND MORALITY Melanie J. Foreman* ABSTRACT The purpose of this Comment is to provide a philosophical commentary on the morality of targeted killing under the laws of war, particularly when the United States turns its sights on its own citizens. Although the conclusions drawn are largely antithetical to current practices, they provide a further critique in the broader discussion of targeted killing. This Comment posits that due process can never be adequately satisfied when targeted killing is turned against one’s own citizens. The moral implications associated with targeting one’s own citizens should not be allowed; rather than defer to International Humanitarian Law, a human rights model as well as domestic law should be used in assessing the United States’ targeted killing of American citizens, as these models allow for the utmost preservation of the lives of those being targeted. TABLE OF CONTENTS INTRODUCTION ............................................................................. 922 I. BACKGROUND: JUST WAR THEORY AND THE CASE OF AL- AULAQI ................................................................................... 925 II. STATUS: THE PRINCIPLE OF DISTINCTION BETWEEN COMBATANTS AND NON-COMBATANTS .................................. 927 A. Status in the War on Terror .......................................... 927 B. Terrorists Are Combatants ............................................ 928 1. Against Terrorists as -
Targeted Killings: Evaluating the Effectiveness of a Counterterrorism Policy 1
Bank of Israel Research Department Targeted Killings: Evaluating the Effectiveness of a Counterterrorism Policy 1 by Asaf Zussman * Noam Zussman ** Discussion Paper No. 2005.02 January 2005 1 The paper was updated and edited on October 2005. A condensed version is forthcoming in the Journal of Economic Perspectives. For their assistance with the data we thank Yoni Fighel, Shalom Harari, and Yochanan Tzoreff of the International Policy Institute for Counterterrorism and Arnon Regular and Dani Rubinstein of the newspaper Ha’aretz. We thank Isaac Ben-Israel, Steve Coate, Jeremy Pressman, Enrico Spolaore, Tim Vogelsang, Romain Wacziarg, Amos Zehavi, and participants of presentations at the Bank of Israel, Cornell Univ ersity, SUNY Binghamton, Te l Aviv University, and the 2005 American and Israeli Economic Association meetings for helpful comments and suggestions. * Economics Department, Cornell Universi ty. E-mail: [email protected]. ** Research Department, Bank of Israel. E-mail: [email protected]. Any views expressed in the Discussion Paper Series are those of the authors and do not necessarily reflect those of the Bank of Israel. 91007 , 780 " , Research Department, Bank of Israel, POB 780, Jerusalem 91007, Israel Abstract targeted killing (henceforth assassinati on) of members of Palestinian terrorist organizations was a major element in Israel’s counterterrorism effort during the Palestinian uprising which started in 2000. We evaluate the effectiveness of this policy indirectly by examining Israeli stock market reactions to assassinations. Our approach relies on the assumption that the market should react positively to news of effective counterterrorism measures but negatively to news of counterproductive ones. The main result of the analysis is that the market reacts strongly to assassinations of senior members in Palestinian terrorist organizations: it declines following attempts to assassinate political leaders but rises following attempts to assassinate military ones. -
An Analysis of Hezbollah's Use of Irregular Warfare (2012)
AN ANALYSIS OF HEZBOLLAH’S USE OF IRREGULAR WARFARE STEPHEN KEITH MULHERN Intelligence and National Security Studies Program APPROVED: Larry A. Valero, Ph.D., Chair Charles R. Boehmer, Ph.D. William T. Dean, III, Ph.D. Benjamin C. Flores, Ph.D. Dean of the Graduate School Copyright © by Stephen Keith Mulhern 2012 Dedication To Mom and Dad, Thank you. AN ANALYSIS OF HEZBOLLAH’S USE OF IRREGULAR WARFARE by STEPHEN KEITH MULHERN, B.A. Political Science THESIS Presented to the Faculty of the Graduate School of The University of Texas at El Paso in Partial Fulfillment of the Requirements for the Degree of MASTER OF SCIENCE Intelligence and National Security Studies Program THE UNIVERSITY OF TEXAS AT EL PASO December 2012 Acknowledgements I would like to thank: Drs. Larry Valero, Charles Boehmer, and William Dean for taking the time to be part of this thesis. Lisa Tomaka, Nicholas Komorowski, and Dr. Dennis Soden for giving me a productive and supportive workplace. And my parents, Michael and Linda Mulhern, for giving me the parental support to finish this work. v Abstract Low-intensity conflicts and insurgencies have been on the rise since the end of World War II. A particularly strong example of these conflicts is the ongoing conflict between the Lebanese Hezbollah and the state of Israel. In the course of the conflict, Hezbollah was able to accomplish what other, more powerful Arab states could not; Hezbollah forced Israel to unilaterally end a conflict. How did Hezbollah accomplish this? This thesis will provide a qualitative analysis of Hezbollah’s use of the instruments of power in their irregular warfare strategy against Israel during the occupation of southern Lebanon. -
Targeted Killings**
United Nations A/HRC/14/24/Add.6 General Assembly Distr.: General 28 May 2010 English only Human Rights Council Fourteenth session Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston* Addendum Study on targeted killings** Summary In recent years, a few States have adopted policies that permit the use of targeted killings, including in the territories of other States. Such policies are often justified as a necessary and legitimate response to “terrorism” and “asymmetric warfare”, but have had the very problematic effect of blurring and expanding the boundaries of the applicable legal frameworks. This report describes the new targeted killing policies and addresses the main legal issues that have arisen. * Late submission. ** Owing to time constraints, the present report is circulated as received, in the language of submission only. GE.10-13753 A/HRC/14/24/Add.6 Contents Paragraphs Page I. Introduction ........................................................................................................... 1–6 3 II. Background............................................................................................................ 7–27 4 A. Definition of “targeted killing” ..................................................................... 7–10 4 B. New targeted killing policies .......................................................................