Steven J. Barela, LL.M., Ph.D.

Unmanned combat air vehicles, or in common parlance “drones”, have become a prominent instrument in US efforts to counter an objective (and subjective) cross-border terrorist threat with lethal force. As a result, critical questions abound on the legitimacy of their use. In a series of multidisciplinary essays by scholars with an extensive knowledge of international norms, this book explores the question of legitimacy through the conceptual lenses of legality, morality and efficacy; it then closes with the consideration of a policy proposal aimed at incorporating all three indispensable elements.

The importance of this inquiry cannot be overstated. Non-state actors fully understand that attacking the much more powerful state requires moving the conflict away from the traditional battlefield where they are at an enormous disadvantage. Those engaging in terrorism seek to goad the ruling government into an overreaction, or abuse of power, to trigger a destabilization via an erosion of its legitimacy. Thus defending the target of legitimacy—in this case, insuring the use of deadly force is constrained by valid limiting principles—represents an essential strategic interest.

This book seeks to come to grips with the new reality of drone warfare by exploring if it can be used to preserve, rather than eat away at, legitimacy. After an extensive analysis of the three key parameters in twelve chapters, the practical proposition of establishing a “Drone Court” is put forward and examined as a way of pursuing the goal of integrating these essential components to defend the citizenry and the legitimacy of the government at the same time.

Table of Contents

Introduction: Legitimacy as a Target

Through the Lens of Legality – Formal Validity
1) Jus ad bellum: Crossing Borders to Wage War against Individuals
o Christian Tams
o James Devaney

2) Who Can Be Killed?: Legal Targets in Non-International Armed Conflicts
o Patrycja Grzebyk

3) Boundaries of the Battlefield: The Geographical Scope of the Laws of War
o Katja Schöberl

4) Lethal Force and Drones: The Human Rights Question
o Gloria Gaggioli

Through the Lens of Morality – Axiological Validity
5) Old Ideas in New Skins: The 16th Century Debate over Artillery
o Alexis Keller

6) The Question of “Imminence”: A Historical View on Anticipatory Attacks
o Steven J. Barela

7) Correcting the Record: Civilians, Proportionality and Jus ad Vim
o Avery Plaw
o Carlos Colon

8) From Just War to Clean War: The Impact of Modern Technology on Military Ethics
o Delphine Hayim

Through the Lens of Efficacy – Empirical Validity
9) Data on Leadership Targeting and Potential Impacts for Communal Support
o Jenna Jordan

10) Tactical Efficacy: Notorious UCAVs and Lawfare
o Marek Madej

11) Strategic Efficacy: The Opinion of Security and a Dearth of Data
o Steven J. Barela

12) Systemic Efficacy: “Potentially Shattering Consequences for International Law”
o Robert Kolb

Creating a Drone Court: Integration via a Policy Proposal
13) Establishment of a Drone Court: A Necessary Restraint on Executive Power
o Amos N. Guiora (IDF, Lt. Col., Ret.)
o Jeffrey S. Brand

14) Can UCAVs be Reconciled with Liberal Governance?: The Substantive Law of a Drone Court
o Tom Farer
o Frédéric Bernard

Conclusion: Defending Legitimacy

http://www.taylorandfrancis.com/books/details/9780415708357/

This interdisciplinary book explores how terrorism is meant to target a government’s legitimacy, and advocates for sounder defensive measures when countering international attacks.

The dramatic increase in global cooperation throughout the twentieth century—between international organisations and their state missions of diplomats, foreign officers, international civil servants, intelligence officers, military personnel, police investigators, judges, legislators, and financial regulators—has had a bearing on the shape and content of the domestic political order. The rules that govern all of these interactions, and the diplomats engaged to monitor and advocate for compliance, have undergone a mushrooming development following the conclusion of each world war. This dramatic growth is arguably the most significant change the international structure has experienced since the inception of the state-based system ushered in with the Peace of Westphalia in 1648.

International Law, New Diplomacy and Counterterrorism explores the impact of this growth on domestic legitimacy through the integration of two disciplines: international law and political philosophy. Focusing particularly on the cross-border counterterrorism actions launched by the United States, the author investigates how civil societies have often turned to the standards of international law to understand and judge the legitimacy of their government’s counterterrorism policies reaching across international borders. The book concludes that those who craft counterterrorism policies must be attentive to defending the target of legitimacy by being wholly mindful of the realms of legality, morality and efficacy when exercising force.

This book will be of much interest to students of international law, diplomacy, counterterrorism, political philosophy, security studies and IR.

Information exfiltrated from the Democratic National Committee (DNC) by Russia continues to make its way through U.S. courts and the media landscape, and on occasion we can find it being distorted to sow discord. At the very same time, bots (automated scripts) and trolls (paid social media actors) that are linked to Russia have worked to amplify its presence in social media. To wit, the meddling in US democracy by proliferating disinformation to divide Democrats continues by Russia.

Over the last two weeks we have seen a flurry of action and reactions concerning the allegations of Russian interference in the 2016 US election. The most significant is the unclassified report released on January 6 entitled " Assessing Russian Activities and Intentions in Recent US Elections " (Russian Activities Report), and hence it should serve as the foundation for our analysis of the relevant international legal issues. We international law specialists knew that intervention in the internal affairs of another State is a prohibited act in international law, but public facts for full assessment of what occurred in the Russian case were lacking. What is more, the precise content and scope of the international law principle of " non-intervention " is subject to debate and needs to be explored in applying it to cyberspace. My aim here is to provide a view on the law, and its application to the facts. Put succinctly, an unlawful intervention occurs when (1) the action is directed at the domaine réservé (the internal affairs having to do with the sovereignty) of another State and (2) the action is coercive in nature. Since there is little doubt that a democratic election is an internal affair, I will argue why a foreign power weakening confidence in the legitimacy of the process should be interpreted as an act of coercion. That is, the disruption of a free and fair election strikes at a sine qua non for the State, and when coupled with the facts, there is a strong argument for classifying this operation as a violation by Russia of international law.

Just over two months ago, on the day before Thanksgiving, President Obama signed into law an important provision concerning torture that has garnered surprisingly little attention. Maybe it was the buzz of the coming holidays, or perhaps the fact that it was buried in a 584-page bill relating to more mundane fiscal concerns, but limited explanation and analysis has been put forward on this noteworthy act. In fact, the relatively sparse commentary on the new law might even explain the confusion by the media and presidential candidates alike that led to the continued — and mistaken — recent discussion of whether a future president would authorize waterboarding or " a hell of a lot worse. " The new provision not only codified the executive order signed by Obama on his second day in office to ensure lawful interrogations by all federal agencies, but it also moved forward scientific study on effective interrogation techniques and transferring this research into government practice. While there is frequent resistance to mixing the concepts of legality and efficacy on the subject of torture, the administration should be praised for moving this fundamental safeguard forward in the wake of acknowledged and officially documented torture, and for doing so in this integrated fashion.

Though startling assertions are now presented on the imprecision of drones, one must look carefully at the data and lacunae to understand what conclusions—if any—can be drawn.
Found at E-International Relations - http://www.e-ir.info/2016/08/23/the-precision-of-drones-problems-with-the-new-data-and-new-claims/

With the recent release of The Intercept's Drone Papers, it is an apt time to revisit the imperative of creating a check on an executive branch exercising lethal force without any external constraint. The newly leaked documents provide irrefutable evidence of a lengthy process for killing with armed drones that has systematically excluded the other branches of government from a matter that strikes at the very heart of a government's legitimacy. Drone policy has distorted legality, eschewed morality, and operated without sufficient data to assess efficacy. It is thus time to establish a " Drone Court " to rein in the executive branch and address the violation of a fundamental principle of our democracy: the separation of powers. Some coverage of the new documents has emphasized the large number of people killed who are not targeted. This is a very disturbing problem, and the immense difficulties for compiling sound data are wreaking havoc on reliable investigations into the numbers. These obstacles include: impenetrable secrecy, attacking unknown individuals based on patterns of behavior (i.e., signature strikes), the perilous work of journalists covering drone strikes on the ground, and a definition of the " enemy " that has indeterminate breadth. This grave inability to know who is actually being killed — essential for determining efficacy — is underscored by The Intercept's explanation of these documents as pointing to an " incalculable civilian toll. " Perhaps most critically, however, the leaks demonstrate that the most common criticism of any effort to create a check on the executive is totally unfounded, i.e., that it must act without hesitation or interference for the sake of security. The reality is that there is indisputably sufficient time to engage in meaningful judicial review of drone strikes. The leaks reveal that the current approval process takes an average of 79 days. Thereafter a 60-day window opens for a drone strike to occur on the intended target. This four to five month time period establishes an essential truth — there is ample opportunity for an external judicial check. This timing issue points to the crux of the problem: The Bush and Obama administrations have redefined " imminence " in a manner that no longer includes " immediacy. " Much has been written about the question of imminence, and I have personally worked on the historical treatment of this concept within the just war theory and the birth of international law. It is my view that the definition at stake is truly pivotal, and should not be taken lightly. It is generally accepted that the executive has the constitutional power to act without interference from the other branches when the country faces an imminent threat. However, removing immediacy from imminence opens the door to unbridled executive power consistently justified by vague notions of a proximate threat that are impossible to track. This should be understood as a power grab by the executive. That is, by adopting the novel and subjective definition of imminence detailed by former Attorney General Eric Holder in 2012, the executive branch has successfully rearranged the playing field; it portends an effective removal of two out of three branches of the government envisioned by the Framers. The " Drone Court " Proposal In the spirit of full disclosure, I am the editor of the volume in which Amos Guiora and Jeffrey Brand advocate for the policy proposal of creating a " Drone Court " in the book's culminating section. The Legitimacy and Drones project has concluded an investigation of

This is a great book. It is not so common to come across a coherent collection that offers such useful insight and understanding for scholars and students alike, let alone on a topic that is only beginning to take shape. This volume does just that. The editors have brought together leading experts (along with the emerging scholar Nicolò Bussolati whose contribution is worthy of note), to explore the applicability of our international law and norms in the expanding shared environment of cyberspace — specifically, those rules relating to the escalation of conflict. This reviewer picked up the book in the hopes of finding some basic points of entry for students, and has been delighted to find a whole host of chapters that are not only individually valuable, but work well together to provide a lucid view on a complex subject. The book is launched with a forward by the director of the Tallinn Manual on the International Law Applicable to Cyber Warfare, Michael Schmitt. As this 2013 document represents the work of a distinguished International Group of Experts invited to produce a non-binding assessment of the application of existing law to cyber warfare, this is indeed a valuable starting point. In addition, two of the chapters have been authored by experts directly involved in this drafting project and the other contributions elucidate what is to be found in the manual while further exploring more specialized terrain. In other words, this book can be said to build upon, and move beyond, the Tallinn Manual. As a way of illuminating the substantive value of this overall book in a short review, I will focus on one brilliant chapter found at the center of this work. In Chapter 7, Duncan B. Hollis provides a keen and edifying analysis of the conceptual stumbling blocks for regulating the space of cyber. Whether they are territorial, legal or normative, this nebulous ether defies our current understandings of their customary boundaries. As a result, the attempt to construct governance for cyberspace, or even applicable norms, using any of our existing appreciations of boundary lines inevitably raises fundamental and unresolved theoretical questions about what cyberspace 'is'. To demonstrate this elementary difficulty for mapping viable solutions, Hollis presents the two predominant legal methods of tailor-made law and law-by-analogy to ultimately show the shortcomings of each. In a veritable effort to tackle this conceptual problem, Hollis provides a thought-provoking alternative proposal for initiating a transfer of our shared principles of humanity and military necessity — the essence of international humanitarian law — into cyberspace. He calls it the 'Duty to Hack', which would require that 'states use cyber operations in their military operations when they are the least harmful means available for achieving military objectives'. 1 At first blush the idea might strike humanitarian law scholars as an odd requisite, but Hollis' unconventional bottom-up approach certainly merits a careful reading. While this chapter does contain a few repetitions that could stand to be polished away, and not everyone will subscribe to the proposition, it represents the reflective work that can be found throughout the book. The first section properly begins with debating chapters on whether 'war' — and all of its accompanying laws and norms — should be applied to cyberspace at all. It also includes a fascinating discussion on whether an increased deployment of cyber-weapons should force the laws of war to develop a more nuanced and

To revisit the yet unresolved question of temporal constraints for cross-border lethal force, I will trace the historical debate on "imminence" to demonstrate how this standard acts as the final control for legitimate anticipatory defense. Most pertinently, there was an instructive bifurcation in the just war tradition that occurred in the seventeenth century on this very question. This division in the development of the moral doctrine, and the ideas advanced which helped give birth to international law, are particularly illuminating since this article treats an inherent point of overlap between legality and morality. By fleshing out the reasoning underpinning these past considerations three points will become clear: 1) why the branch embracing more objective standards took root and burgeoned; 2) that there is no middle ground between the two positions; and 3) why there is a need for rejecting anew the ‘just feare’ standard being used today for triggering the use of killing across borders.

Even though the primary objective of counterterrorism is to increase safety for the targeted population, Montesquieu spotlighted the concept of security as “an opinion” in the eighteenth century. As a consequence, there is a pivotal divergence between objective and subjective security—the absence of threats vs the absence of fear—that begins to elucidate the immense difficulty in putting forward a scientific measurement of strategic efficacy. On top of this, a US program cloaked in secrecy, largely taking place in some of the world’s most remote regions with little or no independent journalism, and with a fluid definition of the enemy to be defeated, has led to a constellation of data that is thus far impossible to collate systematically and completely.

Institutional dialogue is particularly important in the United States where the internal assessments of international legal obligations are often seen, rightly or wrongly, through the lens of its Constitution. This founding document divides the powers of government into three branches, and the result has often been a passing along of the state’s international legal duties with each branch maintaining a plausible lack of responsibility. More recently, a manner in which national courts have dealt with this difficulty is by employing a ‘judicial ladder of review’ meant to prompt an inter-branch dialogue over fundamental duties found in different categories of law, with the court playing the role of moderator. This work will analyze a series of cases (Rasul, Hamdan, and Boumediene) that have come before the Supreme Court of the United States dealing with pertinent international norms for counterterrorism, and that can simultaneously be found in domestic and constitutional law. Through this investigation, we will see that the US Supreme Court indeed initiated such an institutional colloquy with the executive and legislature in an attempt to affect the final legal policies of the nation. While the other branches of government implemented policies and passed legislation that poorly interpreted the applicable law, the highest national court methodically employed this novel judicial tool, extending rights across borders and nationalities, so as to take the historic step of eschewing the traditional deference shown by courts in times of armed conflict. In so doing, the Court was measured, patient and resolute in its push back against the removal of judicial review for those held in detention at Guantánamo in the ‘war on terror’.

An essential dimension of political struggle will inevitably revolve around the 'power to command' and the 'will to obey' since how these are established and exercised remain a central question for every society. Yet, while command can be targeted and destroyed with dominant strength, obedience is more elusive because it is up to each citizen to exercise. As such, compliance is an element that cannot always be easily explained through a conventional prism of force. This can also explain how access to more powerful weaponry has faded as the deciding factor in the outcome of a struggle. This work will examine and posit how the strategic goals of those who employ terrorism might actually be achieved since they certainly are not employing overpowering conventional force. To do so, we will investigate the legality, morality and efficacy of the ‘war on terror' with international law as the framework.