On April 20, 2010, the BP oil rig explosion set off the dumping of millions of gallons of oil into the Gulf of Mexico.  Images of oil soaked birds, tar balls washing up on beaches, and out-of-work fishermen have been a near constant presence on the nightly news ever since.  The spill—the worst environmental disaster in the country’s history—has caused some to condemn offshore drilling and call for a move toward alternate sources of energy.  One of those alternate sources being championed by some experts is nuclear power, an energy source the experts claim is underutilized.  Leaders also champion nuclear energy as a way to lessen our dependence on oil supplied by foreign countries whose oil wealth allows them to “ignore U.S. policies and to pursue interests inimical to our national security.” While nuclear energy has a relatively good safety record (with the exception of one complete meltdown and a few close calls), a new Finnish film documenting that country’s effort to safely store spent nuclear fuel raises a number of difficult questions dealing with the security of such fuel.  As new nuclear waste is created daily, it is long overdue for the United States to seriously determine how to safely store this dangerous substance.

Nuclear power is created by producing intense heat through nuclear fission.  This intense heat is captured and used to make steam which drives a turbine generator, creating power.  Most nuclear power plants use uranium rods bundled together to create nuclear fission.  Though nuclear energy is extremely clean when compared to burning fossil fuels like oil, nuclear power generation does produce waste.  This waste consists of highly radioactive spent fuel assemblies.  Exposure to such a high level of radioactivity could result in death and turn the surrounding land uninhabitable for decades.  Therefore, it is critical that spent nuclear fuel be completely and securely stored in order to prevent an accidental leak or theft.

The challenge of safely storing the material is complicated by the length it must be stored.  Uranium decays very slowly, maintaining its dangerousness for approximately 100,000 years.  It is hard to fathom this period of time.  The human species as we know it today is believed to have existed for approximately 100,000 years.  The oldest known cave paintings are 30,000 years old.  The pyramids are around 4,500 years old.  The amount of changes that will occur in 100,000 years raises a host of issues.  Once we store the nuclear waste, how can we guarantee continuous surveillance and security to protect the material for 100 centuries?  (Think of all the plundering that occurred once gold was discovered in the pyramids).  How will we be able to communicate to future generations the complicated issues of nuclear waste and radiation given our history of preserving ancient language?  Should we even try to convey the seriousness of the material given the possibility that our message will not be understood properly, thereby only piquing humans’ curiosity of what lies behind those reinforced doors?

A new documentary from Finland poses these questions.  “Into Eternity” is about Onkalo—the world’s first permanent nuclear waste repository.  Onkalo is located in Olkiluoto, approximate 190 miles northwest of Helsinki.  Work began on the concept in the 1970s and its completion is expected in the 2100s, after all the current workers will have deceased.

While the issues presented by a place like Onkalo are vexing, at least Finland has a plan and is progressing toward completion.  The United States currently has no plan beyond studying the issue.  For many years this country’s Onkalo was going to be Yucca Mountain in southwest Nevada.  The Department of Energy (DOE) has had Yucca Mountain on its radar since 1978.  In 2002, after a host of scientific studies and legal challenges, President Bush signed a joint resolution allowing the Energy Department to take the next step in establishing Yucca Mountain as the nation’s nuclear waste depository.  But the 2006 congressional elections swept the Democrats into power, led by Yucca Mountain opponent Senator Harry Reid.  Following Senator Reid’s assumption of power, Congress gradually decreased the funding for the site.  President Obama—another opponent of Yucca Mountain—announced he was abandoning the project and directed Energy Secretary Steven Chu to formally file a motion to withdraw the project’s pending license application while establishing a Blue Ribbon Commission on America’s Nuclear Future which is tasked with a comprehensive review and consideration of alternatives to Yucca Mountain.

But the adjudicatory bodies are not letting the Obama administration abandon Yucca Mountain just as a “matter of policy.”  On June 29th, the Atomic Safety and Licensing Board rejected DOE’s motion to stop the project, ruling that the Nuclear Waste Policy Act of 1982 does not give the Energy secretary the discretion to substitute his policy for the one established by Congress in the Act.  The Board held that according to the 1982 Act, once Yucca Mountain was chosen by Congress, the project would be removed from the political process and the Nuclear Regulatory Commission (NRC) would evaluate the proposal solely on its technical merits.  The day after the board’s ruling, the NRC took the unusual move of ordering an appeal to itself, not waiting for an appeal from the parties.  This is in addition to parallel litigation ongoing in the U.S. Court of Appeals for the D.C. Circuit.  In the background, the federal government is assuming ever increasing money damages for breaching contracts with the nuclear utilities for disposal of nuclear waste.  The damage awards now total over $1 billion (The Blog of the Legal Times provides a good summary of the current status of the litigation).

Whatever the merits of abandoning the Yucca Mountain project, we are falling further and further behind in addressing the question of where to store nuclear waste and have not even begun to contemplate the questions facing the engineers, politicians, and theorists in Finland.  If we embrace nuclear energy as an alternative to oil—a way to both keep money from countries that don’t completely share our interests and decrease the possibility of a disaster on par with the BP spill—our production of nuclear waste will increase, thereby raising the importance of developing a comprehensive waste management strategy.  The most sobering thought of all: Finland has four nuclear reactors.  The U.S. has 104.

Photo courtesy of Christian Science Monitor.

President Barack Obama fired General Stanley McChrystal on June 23, 2010, following a controversial interview with Rolling Stone.  Just hours later, President Obama appointed General David Petraeus, head of United States Central Command and architect of the 2007 surge in Iraq, to replace General McChrystal in leading the Afghan war.  Despite the change in leadership, no change is expected in the current war strategy.

The Interview

General McChrystal’s termination was set in motion by his decision to grant an interview to the magazine Rolling Stone.  Sources close to General McChrystal told Rolling Stone that General McChrystal thought President Obama to be “uncomfortable and intimidated” by senior military officials and called a one-on-one meeting between President Obama and General McChrystal a “photo op” in which President Obama “didn’t seem very engaged” with the issues at hand.

General McChrystal’s top staff members did not appear in the most flattering light themselves.  For example, the Rolling Stone reported that some senior staff members called themselves “Team America,” from the movie Team America: World Police, a film parody about fictional paramilitary police who attempt to save the world from a terrorist plot led by Kim Jong-il.  These staff members also made numerous derisive comments not only about President Obama, but also Vice President Joe Biden; Ambassador Karl Eikenberry; Richard C. Holbrooke, the special envoy to Afghanistan and Pakistan; and James L. Jones, Jr., the National Security Advisor.

But the Economist, at least, has argued in a post-firing article that General McChrystal’s frankness had been a good thing.  General McChrystal was interested in alternative viewpoints and “happily took the press into his confidence.”  The mistake was to include Rolling Stone in that confidence.  The Rolling Stone article “seemed to include every unguarded sentence he, or his aides, might have uttered.”  Nevertheless, the Economist agreed that General McChrystal was worthy of dismissal.

Can Petraeus Win the War in Afghanistan?: An Editorial Roundup

Answering this question first requires a step back: what does it mean to win the war in Afghanistan?  The opinions below discuss the strategy for fighting the war in Afghanistan, but don’t explain what a “win” would look like.  Is it routing out the Taliban?  Creating a strong democracy and a growing economy—and if so, what is the threshold for success?  Whatever a win is, some of the top newspapers are pessimistic about the chances that the United States will achieve it.

The New York Times paints a gloomy picture.  Currently, the war in Afghanistan is going poorly.  NYT notes that to win, General Petraeus will need “a dose of good fortune” in addition to the counterinsurgency strategy that he will implement.  The problem is not just the insurgents themselves, but also the morale of America’s own troops, who are angry over restrictions on using firepower.  Nor are the troops the only ones unhappy with the nuts-and-bolts of the war—senior officials in the Obama administration hold differing views on how the war in Afghanistan should be fought.

The Economist is even more pessimistic.  According to the editors, the problem is not General Petraeus, but rather that the current counter-insurgency strategy devised jointly by Generals McChrystal and Petraeus—the strategy that General Petraeus is likely going to continue—would take more time and effort than America and NATO are willing to give.  One senior NATO official estimated that it would take 13 years to win a counter-insurgency campaign.  The counterinsurgency campaign is only in year two and President Obama has promised to start withdrawing American troops from Afghanistan in July 2011.  A troop shortage will be compounded by the expected withdrawal of 4,500 Dutch and Canadian troops over the next year.

Many of a roundup of foreign policy experts at the Washington Post agree: General Petraeus is good, but something else needs to give if the United States is to stand a chance of winning the war in Afghanistan.  Danielle Pletka, vice president for foreign and defense policy studies at the American Enterprise Institute, believes that Ambassador Eikenberry and Mr. Holbrooke need to go because “they have put politics above the mission and ego above all.”  Kurt Volker, ambassador to NATO from 2008 to 2009, believes the July 2011 pullout date needs to be scrapped because it signals doubt of American commitment to winning.  Zalmay Khalilzad, United States ambassador to Afghanistan, Iraq, and the United Nations during the George W. Bush administration, argues among other changes that General Petraeus will require civil-military cooperation and better relations with the Afghan government and people.

Indeed, success might be entirely outside of American hands.  The Los Angeles Times has argued that it will be difficult to defeat the Taliban as long as it can depend on supply routes and sanctuaries in Pakistan.  In turn, Pakistan’s willingness to cooperate on this front is a political consideration—Pakistan would like to have more influence in Afghanistan than India does—that is out of General Petraeus’s hands.

Image courtesy of the London Telegraph.

Pakistani officials claim to be able to deliver the network of Haqqani, a group affiliated with Al Qaeda, into a power-sharing arrangement.  According to the report, negotiations have been underway for some time, with Pakistan’s Army Chief, Gen. Ashfaq Parvez Kayani, and the nation’s spy chief, Lt. Gen. Ahmad Shuja Pasha, conducting shuttle diplomacy between Islamabad and Kabul.  But the lack of details given to Washington raises concern in some U.S. circles that the negotiations will not only push Karzai further away, but conclude with a separate peace between Afghanistan, Pakistan and the Taliban, leaving American interests to the side and Al Qaeda a base from which to operate.

Some, including President Obama and CIA Director Leon Panetta, are more skeptical that a peace can be reached in the near term.  While Pakistani intelligence and military officials claim the Haqqanis are willing to break with Al Qaeda, many believe that the relationship is too close, and that the negotiations are simply a way of fending off impending military action in both Pakistan and Afghanistan.  While he acknowledged that progress in Afghanistan has been coming more slowly than anticipated, Panetta opined on television that the U.S. has “seen no evidence that [the Taliban] are truly interested in reconciliation.”  Indeed, because of that very lack of progress, many American officials believe the Taliban have no motivation to negotiate seriously, and that they won’t until they fear a military defeat.  President Obama also expressed skepticism, and stressed the varied makeup of the organization, warning that it was “too early to tell” whether the efforts being made to broker a peace accord were genuine.  Administration officials worry that the Haqqani network will be unwilling or unable to break from its more radical elements.

Meanwhile, in an interview that emphasized the potentially varied markup of the coalition forces, the head of the British army, Gen. Sir David Richards, said on BBC Radio this past weekend that talks with the Taliban should start “pretty soon.”  Whether Richards’ view represents a substantive disagreement with his American counterparts’ is unclear.  The beginning of operations in Kandahar should bring some clarity, if not to the war, at least to the various parties’ understanding of how to move forward diplomatically.

Image courtesy of Reuters.

By Mat Trachok, NSJ Staff Editor -

On April 19th, Professors Jack Goldsmith and Phil Heymann of Harvard Law School debated what the Obama administration should do with alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM).  According to both Goldsmith and Heymann, the United States has three options available: it can try KSM before a military commission, it can try him in a civilian court, or it can continue to hold him in military detention.  Both professors agreed that trying KSM before a military commission was the worst option.  However, they also agreed that trying him in a civilian court was not a much better option.  In the end, both argued for what they consider to be the least-bad option available: Heymann argued that the United States should try KSM in a civilian court or extradite him, and Goldsmith argued that the United States should continue to hold KSM in military detention.

Goldsmith and Heymann agreed that trying KSM before a military commission would be the worst of the three approaches.  According to both professors, military commissions do not offer any benefits that would not be available in a civilian trial.  First, while the procedural differences of military commissions (e.g., the admissibility of hearsay evidence) favor prosecutors, both Goldsmith and Heymann expressed certitude that KSM would be convicted in a civilian trial.  Second, while trying KSM on a military base would be safer than trying him in an urban area, it is possible to hold a civilian trial on a military base (provided the base was within the appropriate venue).

In addition to not offering any special benefits, trying KSM before a military commission would be costly for the United States in three ways.  First, as both Goldsmith and Heymann pointed out, the United States’ democratic allies, the Muslim world, and the American Left see military commissions as illegitimate show trials.  Second, both Goldsmith and Heymann agreed that any military commission trying KSM would be hampered by endless appeals over novel legal issues.  Finally, Heymann argued that trying suspects before a military commission at will would create a slippery slope: it is unclear who would decide whether future suspects were to entitled to a full trial or not and what criteria such decisions would be based on.

Goldsmith and Heymann also agreed that trying KSM in a civilian court would not be much better than trying him before a military commission because the world would not view a civilian trial as substantially more legitimate.  Both noted that because the Obama administration chose which suspects to try in civilian courts based on ease of conviction and because the administration has insisted that, even if KSM were acquitted, he would not be released, it would be easy to criticize any trial as a show trial.  Heymann also argued that because over half of the world’s Muslim population does not believe that al-Qaeda was responsible for the 9/11 terrorist attacks, even the best trial would appear illegitimate to many in the Muslim world.

In spite of the costs associated with a civil trial, Heymann argued that the United States should try KSM in a civilian court and hope that he enters a proud guilty plea.  Heymann believes that only a guilty plea would convince the majority of the world’s Muslim population that al-Qaeda was behind the terrorist attacks on 9/11.  He further argued that if the Obama administration does try KSM in a civilian court, it should allow the judge to extend the Speedy Trial Act to allow the government three to five years within which to gather useable evidence (i.e., evidence not obtained through coercive interrogation).  If the government cannot find such evidence, Heymann continued, the United States should extradite KSM to a country that would be willing to detain him.

While Goldsmith agreed with Heymann that a guilty plea by KSM would be useful to the United States, he pointed out that, toward the end of President Bush’s second term, KSM offered to enter a guilty plea before a military commission, but was denied the opportunity when the current administration decided to transfer his to a federal district court.  According to Goldsmith, KSM no longer appears willing to enter such a plea, and it seems unlikely that he will ever offer to do so again.

Goldsmith concluded that the least-bad option available to the Obama administration is continued military detention.  He argued that because the United States is at war with al-Qaeda, there is no doubt that it would be lawful under both domestic and international law to detain KSM until the end of that war, even though KSM will likely die before that day comes.  Goldsmith admitted that there are legitimacy problems with continuing to hold KSM without a trial, but he pointed out that all three options available to the United States have similar legitimacy problems.  He argued that the benefits of continued military detention lie in its entailment of fewer political costs and difficulties than the other two options.

Although Goldsmith argued that continued military detention was the least-bad option available, he also stated that he believes that the administration will choose to try KSM.  And if it does so, he agreed with Heymann that it should try him in a civilian court.

Image courtesy of Christopher Dydyk, © 2010

Washington and New Delhi last week announced the successful completion of a nuclear agreement granting India rights to reprocess nuclear fuel imported from the United States, moving the two countries one step closer to implementing a historic civilian nuclear deal that has become the centerpiece of the widely touted U.S.-India “strategic partnership.”  The accord provides a much needed boost to bilateral relations between the world’s oldest and largest democracies, which have shown some signs of strain amid concerns from officials in New Delhi that the Obama administration was downgrading its relationship with India in order to ensure continued Pakistani support for Obama’s Af/Pak strategy.

The reprocessing pact is part of the larger, landmark U.S.-India civilian nuclear deal signed by the two countries in 2008 following three years of intense negotiations.  Although India has refused to sign the Non-Proliferation Treaty (NPT), the deal effectively lifts a thirty-four year moratorium on nuclear commerce with New Delhi, originally imposed on India following its first round of nuclear tests in 1974.  Without any domestic uranium reserves of its own, India must import uranium for its nuclear reactors which it will finally be able to do from the United States.  Under the latest accord, India joins an elite club with just two other international parties that Washington currently permits to reprocess its spent nuclear fuel: Japan and a handful of European countries.

While the agreement allows India to finally import and reprocess spent nuclear fuel, the accord mandates that India establish a dedicated reprocessing facility for spent fuel under International Atomic Energy Agency (IAEA) safeguards.  That reprocessing will be conducted under IAEA supervision and not directly by the United States highlights Washington’s sensitivity to India’s traditional concerns surrounding the sovereignty of its nuclear program.

The timing of the reprocessing pact is significant for several reasons.  First, the announcement came almost immediately on the heels of the U.S.-Pakistani “strategic dialogue” last week which aimed to shore up continued Pakistani support for the Obama administration’s efforts to stabilize the faltering war in Afghanistan.  The reprocessing agreement underlines the privileged and unique position India enjoys with Washington with regard to its nuclear program and stands in stark contrast to the cool response Islamabad received from American officials to its request for a nuclear deal akin to the one granted to India.

Second, the agreement was announced just weeks after New Delhi and Moscow reaffirmed their own strategic ties.  The two former Cold War allies signed massive arms and nuclear deals worth billions of the dollars.  The red-carpet welcome New Delhi rolled out for Russian Prime Minister Vladimir Putin was partially aimed at catching Washington’s attention and reminding the United States that India is ready to pursue robust partnerships with other powers if Washington’s attention is focused elsewhere.

Finally, Washington completed the reprocessing accord just two weeks before the Obama administration is scheduled to host an international summit on nuclear security.  The agreement serves to underscore Washington’s acceptance of India’s special nuclear status at a time when President Obama has made strengthening the nuclear non-proliferation regime a top priority of his administration and recently signed a historic nuclear-arms reduction agreement with Russia.

The nuclear deal will prove to be lucrative for American energy firms eager to capture their own share of India’s $150 billion nuclear energy market.   As Timothy Roemer, U.S. Ambassador to India, pointed out in the statement announcing the agreement that “these arrangements will help open the door for U.S. firms in India’s rapidly expanding energy sector, creating thousands of jobs for the citizens of both our countries.”

Although the reprocessing pact removes a key obstacle in the implementation of the U.S.-India civilian nuclear deal, other hurdles remain.  The United States is waiting for India to pass and enact legislation granting private American energy companies civil liability protection in case of a nuclear accident.

The accident-liability legislation has proven controversial in India.  While the Indian cabinet has already approved the legislation, Prime Minister Manmohan Singh has been unable to introduce a bill in Parliament.  India’s main opposition parties, which previously opposed the U.S.-India civilian nuclear deal on the grounds that it unduly sacrificed India’s nuclear sovereignty to the United States, have vowed to block any liability legislation.  American energy companies are hesitant to do business in India without legislation that guarantees their compensation liability in the event of a nuclear accident.

Final passage of the U.S.-India civilian nuclear deal also obligates New Delhi to submit a non-proliferation assurance to Washington stating that it will not transfer proprietary materials and technologies to third parties.  The non-proliferation pledge constitutes a licensing requirement that governs all commercial nuclear exports.

The successful completion of the reprocessing agreement should serve to reassure officials in New Delhi who may have questioned President Obama’s commitment toward implementing the U.S.-India nuclear deal.  At a time when Washington’s intense focus on Afghanistan and Pakistan has prompted growing concern in New Delhi that the Obama administration is “re-hyphenating” its foreign relations with India and Pakistan, the latest nuclear accord is a welcome – and much needed – development for U.S.-India relations.

This article is cross-posted at the Atlantic Council’s website.

Image courtesy of NewsX

On Wednesday, March 31, four past and current military lawyers participated in a panel at Harvard Law School entitled “The Indeterminacy of International Humanitarian Law”.  The event, sponsored by the National Security Journal, the HLS International Law Society, the HLS Program on the Legal Profession, and the HLS Advocates for Human Rights, was moderated by Andru Wall, who recently served as a Judge Advocate with the United States Navy, and featured comments from Col. Juan Gomez, a Colombian military lawyer currently on assignment at the National Defense University; HLS Professor Gabriella Blum, formerly an international law Military Advocate and strategic advisor to the Israeli Defense Force; and Capt. Dale Stephens, a Judge Advocate with the Royal Australian Navy.

The three panelists focused their comments on the difficulties created by the indeterminacy of the key terms and concepts of international humanitarian law, particularly the proportionality principle.  Colonel Gomez noted that this legal concept is also crucial to satisfying the military mission in most modern conflicts, particularly intrastate conflicts, since legitimacy is often the center of gravity.  With both insurgent groups and advocacy groups aware of a government’s vulnerability to challenges on legitimacy grounds, the responsibility of the military lawyer to opine on what is militarily necessary and proportionate becomes critical.

Captain Stevens outlined the role of the military lawyer as he had come to see it through his career – particularly his 2005 and 2008 tours with Coalition Forces in Iraq.  He noted that the lawyer’s task is not limited to a determination that a proposed course of action is legal, but must encompass a broader set of considerations to determine whether the proposal was correct.  He noted the significant implications of the Coalition’s move to a counterinsurgency strategy in Iraq, as the doctrine and its focus on the protection of civilians shifted the balance in determining (as a matter of policy) how much risk Coalition soldiers should assume.

Professor Blum drew upon the IDF’s experiences in following the targeted killing of Hamas leader Salah Shehada in 2002.  While there was no question that Shehada, responsible for a number of terrorist attacks in Israel, was a legitimate target, the collateral damage caused by striking the densely-populated area where he lived created a chilling effect on future proposed targeted killings.  While she agreed with Captain Stevens that all factors, not just legal considerations, should be taken into account when advising a commander, she proposed that ultimately the decision must belong to the commander.  She noted the difficulty in providing advice to commanders, who generally seek specific guidance on the bounds of their action.  Such advice, she stressed, is impossible to give ex ante – there is no answer to the question of how many civilians may be harmed in order to achieve a military objective.

For more on international humanitarian law and the law of armed conflict (LOAC), look for two forthcoming articles in the Harvard NSJ: Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare, by Laurie Blank and Amos Guiora, and The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis, by Dean Michael Schmitt.

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

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

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 5^th, 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

In a recent article in The New Yorker, Jane Mayer considers the legal and moral implications of the Central Intelligence Agency’s covert drone program in the Federally Administered Tribal Areas (FATA) of Pakistan.  Under the Bush Administration, the CIA began using unmanned drone aircraft, most often Predators and more recently Reapers, to conduct targeted killings of terrorism suspects.  According to Mayer, President Obama has made very few changes to the program.  Indeed, the president has authorized forty-one strikes since taking office—as many as former President Bush authorized during his last three years in office.

Given plans to commission hundreds of new drones, it appears their use as part of the War on Terrorism will only increase.  Moreover, Vice President Biden has argued that the United States should focus less on counter-insurgency in Afghanistan and more on using Predators to eliminate al-Qaeda leaders; the recently announced decision by President Obama to pursue a more comprehensive counter-insurgency strategy, however, likely will not lead to a scaling back of these plans or of the program more generally.

The costs of the drone program are numerous, though not only in dollar terms.  According to one expert quoted in the article, using what are essentially robots to fight for us creates the perception that war is costless.  Soldiers are not put in harm’s way and the victims remain faceless.  As reported in numerous press outlets, Predator attacks, however, have led to the death of innocent bystanders, including children.  In addition, Predator pilots suffer from combat stress just as much as—and perhaps more than—pilots sitting in cockpits.  The perception that war is costless is itself a cost of the drone program, as it threatens to undermine political checks on what could become an endless war.

There are also policy costs.  First, terrorists killed by Predators cannot be mined for intelligence.  Second, and perhaps more controversial, is the notion that the targeted killing program amounts to assassination, which is forbidden by E.O. 12333, which governs the activities of the Intelligence Community.  Indeed, the use of drones in this manner may begin to erode the international norm against assassination.  By engaging in strikes that some believe to be assassination, the United States threatens to undermine its stance that it occupies the moral high ground in this war; the Obama Administration’s use of the program may also endanger the goodwill it has engendered abroad, especially in Pakistan.

Despite the costs involved, many believe that the drone program is the United States’ most effective weapon against terrorist organizations like al-Qaeda.  The drones have killed more than half of the CIA’s most wanted targets.  Fear of Predators has created debilitating suspicion within terrorist organizations and has driven terrorists to divert resources from planning attacks to operating more cautiously.

It may be that the benefits of the drone program outweigh the costs.  The problem, according to Mayer, is that there has been no public debate about its cost-effectiveness.  The CIA conducts the program secretly and it is unclear what code and methodology—if any—by which it operates.  This raises serious accountability questions.

At its conception, the drone program also raised novel legal questions.  According to Mayer, the United States initially openly opposed extrajudicial killings, which it equated with assassination, which originally was banned by a 1976 executive order signed by former President Gerald Ford.  However, after 9/11, former President Bush authorized the CIA to kill members of al-Qaeda anywhere in the world, a policy that Congress endorsed with the Authorization for Use of Military Force.  The Bush Administration argued that the assassination program was legal, as it was an act of anticipatory self-defense, and because terrorism is not a crime, but an act of war.  Therefore, the administration argued, it was no longer required to give terrorists due process.

According to Mayer, to be sanctioned under international law, a Predator killing must be (1) a military necessity that is (2) directed at a terrorist group engaging in armed conflict, (3) proportionate to the threat, and (4) permitted by the nation in which the assassination is to take place.  Many lawyers believe the drone program in Pakistan has thus far met these international law requirements.  However, there is concern that the United States is broadening the definition of who may be an acceptable high-value target.  There is also concern that the United States has given Pakistan control over choosing many of the program’s recent targets to gain the support of the Pakistani political elite.  It is unclear as to whether these trends threaten to make the program illegal under international law.

Whether one considers the drone program to be immoral, illegal, bad policy, or some combination of the above, it is unlikely to end any time soon.  According to one former CIA officer, the Predator attacks are the only tool the Obama Administration has to directly disrupt al-Qaeda’s operations in Pakistan.