Becoming Complacent with The Laws of War is not an Option

Civilian casualties are an unfortunate and yet expected part of the collateral damage incurred during armed conflict.  Nations in the international community, however, have nonetheless gone to great lengths to ensure that civilian casualties not be written off.  A recent article on Defense One explains that the Trump Administration plans potential relaxing of the rules meant to limit civilian casualties in counter-terrorist operations.  This would mean that “areas of active hostilities” would have fewer rules of engagement, especially in conducting drone strikes and counterterrorism missions outside conventional war zones.  This is not a new practice; President Obama issued a similar declaration in Libya which involved a prolonged air campaign that drove ISIS from the city of Sirte.  The Trump Administration’s plan would only be temporarily removing constraints on airstrikes and raids with the intent to target individuals suspected of being militants, and the initial plan would serve as a test to determine if the government can more broadly extend the relaxed rules of engagement. 

Allowing a greater range of air strikes and raids has previously proven effective in driving terrorist fighters out of cities and hiding.  Generally, States must distinguish between military objectives and non-military objectives for targetability, and under international humanitarian law and customary international law, civilians are never targetable.  So long as civilians are not the principle object of the attack,  however, collateral damage to civilians is often justifiable following a proportionality analysis to determine whether the military advantage gained outweighs the loss of civilian life and property.  If the military advantage gained does not outweigh the loss of civilian life, the campaign cannot continue.  The United States could easily make the argument, and be well supported by individuals on both sides of the aisle, that the distinct military advantage of eliminating terrorist group presence in these cities is a significant advantage not only for the United States but also for the other countries engaging ISIS. 

                  There are two fundamental reasons why such an approach could be a strategic nightmare for the United States.  First and foremost, if the United States loosens the rules of engagement regarding civilian casualties it will not be incompliance with international humanitarian law or customary international law.  Both indicate that civilians may not be the direct object of a military attack.

 Second, continuing to relax the rules of engagement in relation to civilians could severely jeopardize the United States’ mission in fighting ISIS.  If the United States hopes to succeed in the conflict in the Middle East, it must have the support of the American people and nations, specifically those within the war-torn regions.  If civilians are the constant indirect or direct target of attack, the United States will fail to maintain any good-will relations that have been built.  The people in these regions have been ravaged by war for years  and civilian casualties are already excessive.  For example, in Yemen, one of the countries already declared to be an “area of active hostilities” there is a significant number of civilian casualties.  If this trend continues, the United States could risk upsetting the delicate relations between itself and the people of these war-torn countries by becoming the main force of their suffering.  The United States must maintain its role as protector rather than attacker.

 While expanding the rules of engagement could have the effect of successfully eliminating more terrorist fighters and threats, it could have the extremely dangerous effect of turning the civilian population against the United States.  Abiding by the customary rules of engagement will enable the United States to maintain the moral high-ground in the continuous fight against terrorism both domestically and internationally. 

March 6 Executive Order

Dear President Trump,

One benefit to being President is that you have an entire army of government bureaucrats to weigh the pros and cons of any idea that pops into your head. This begs the question, what are you doing?

Your latest Executive Order issued on March 6, 2017 (and going into effect on March 16) is a second attempt to “keep America safe.” From what exactly? As those of us who make up your constituents have unfortunately come to expect, your administration has still offered no facts to indicate that nationals from the remaining six targeted countries – Iran, Yemen, Sudan, Libya, Somalia, and Syria – pose a unique risk to national security. And DHS has confirmed that in fact, people from these countries pose no such risk.

The Executive Order cuts the refugee program to 50,000 refugees and still bans Syrian refugees in renewable 120-day increments, essentially creating an indefinite ban. This is despite consistent evidence indicating that refugees pose no increased risk to national security and that accepting refugees is instead a “hugely profitable investment” for the United States economy.

Although the Order now does not provide minority religions preference (kudos!), the constant anti-Muslim fearmongering by the Administration provides little comfort that the intent behind the order is not still to institute a Muslim ban. Furthermore, the rhetoric coupled with the mere image that the United States is banning people based on their religion fits precisely into anti-American terrorism propaganda and fuels recruitment.

So, what is the ultimate goal, President Trump? If it is, in fact, “protecting the nation from foreign terrorist entry into the United States,” it might be helpful to do some research. Because what you have done today may manipulate your base for now, but it will certainly not protect Americans.

Concerned citizen,

Alison W. Davis

Does An Immigration Ban Really Make Sense to Combat Terror Threats?

Authored By: Elena Sakelaris

America is a country made up of immigrants.  How many times have we heard these words in the last two weeks?  Personally, I come from a family of immigrants, my mother’s family came to America from Sicily and my father’s family came to America from Greece. And there are millions more people just like me who have had family come to the United States in the last 90 years.  Immigrants are a fundamental part of the United States’ economy and character, there is no denying this fact.  Therefore, the recent action by President Trump to institute a travel ban does appear on its face to be fundamentally against the American melting pot.  However, it is important for people to acknowledge the legal basis for instituting a travel ban and the fact that this is not the first time something of this nature has occurred. 

Throughout history, there have been various travel bans instituted.  Since the late 1800s Congress has placed limits on the number of immigrants coming to America.  In the 1920s immigration restrictions increased and the Immigration Act of 1924 placed overall limits on the number of immigrants and established quotas basted on nationality.  The quota system was not eliminated until Johnson signed the Immigration and Nationality Act of 1965.  Other Presidents, including recent Presidents such as Reagan, Bush I, Clinton, Bush II, and Obama, have enacted temporary travel bans in the interest of national security.  And this therefore is the fundamental issue of President Trump’s travel ban: whether the President is acting within the national security interest of the country.

First, legally the President does have the authority to institute travel restrictions and temporary bans.  The President has plenary power when dealing with foreign relations, and due to Congressional delegation, the President’s authority has grown since the 1960s allowing the executive branch to become even more active in directing foreign policy.  Furthermore, under Federal Immigration Law 8 U.S.C. §1182—Inadmissible Aliens, “whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”  This section of the U.S. Code gives the President broad authority to act within the national interest to institute temporary travel bans.  Furthermore, the order does not specifically mention a Muslim ban, and therefore would not constitute a violation of the non-discrimination provision of Section 1152(a) of Title 8 of the U.S.C.  Rather it is intended to serve the purpose of promoting national security by preventing potential terrorists from entering the country.  Legally, so long as the President is acting on a legitimate foreign policy interest and the language of the order is neutral and not in violation of any of the U.S.C., the order is deemed legitimate regardless of the actual application or public sentiment. 

The real issue with the order is not whether or not the President possesses the legal authority to enact such a policy—he does—the issue is whether or not instituting this temporary travel ban is a legitimate way to prevent potential or actual terrorists from entering the United States.  The seven countries in the ban have already been identified as “countries of concern” under the Obama Administration.   Many have argued, rightly so, that had this travel ban been instituted previously, it likely would not have prevented any of the terror attacks in the United States since 9/11.  None of the twelve terrorist who conducted deadly attacks in the U.S. emigrated from or were born into a family that emigrated from a country that is subject to the travel ban.  The ban misses the intended target, potential terrorists, and instead opens the risk of countries becoming unwilling to work with the United States through providing intelligence and other counter-terrorism measures.  The President is justified in his desire to keep America secure, however the poor and rushed implementation of the travel ban have had the opposite impact due to the chaos and uncertainty that have ensued. 

Furthermore, the response to the ban with the increased number of people at airports across the country either being detained, or delayed due to protesters poses the potential for a Belgium-style terror attack which would inflict great destruction due to the sheer number of individuals at U.S. airports.  It is terrifying to think of the potential harm individuals and the United States at large could face if a radicalized individual or group were to capitalize on the current state of chaos in the United States. 

Regardless of whether or not an individual voted for President Trump or whether or not one likes or agrees with him, the travel ban is having the opposite effect of securing the nation from foreign threats.  Terrorism is a real threat in the modern world; however instituting policies such as the travel ban have the chilling effect of encouraging ISIS to continue to capitalize and claim responsibility for world-wide acts of terrorism, even if the individual who committed the act has no true affiliation with ISIS, because of the wide-spread fear and unrest terrorism causes.  Radicalization itself needs to be targeted not to entire countries, because the threat comes from non-state actors and therefore action against entire nations does not ultimately solve or address the entire issue.  If temporary travel bans do address the issue, they are only scratching the surface of a serious threat to global security. 

In the face of whim and wishes will Obama’s legal and policy framework survive?

By: Matthew T. Goepfrich

In the last month of office, the Obama Administration released five new documents regarding use of force doctrine and counterterrorism operations as conducted by the United States. Among these is the significant, but hardly new, Use of Force Framework Report which summarizes the continuing United States doctrine and justifications regarding its ongoing counterterrorism operations.

As the new Trump Administration takes over, one begins to wonder to what extent this current framework of using military force overseas will continue to be followed with the rigor traditional law abiding societies demand. It should not be forgotten that an Executive Action is only as good in so far as the next President doesn’t know about it. The Branch that makes the rules can after all change the rules. But the Use of Force Framework Report is different in some regards in that it specifically highlights the long asserted AUMF legal justifications for ongoing use of military force. These legal justifications are well rooted in international law principles. However, given the indications of the Trump Administration as transactional and result focused, it does mean that certain prevailing heightened policy standards and procedures from the Report very quickly may meet their demise during future operational planning.

Among these include the PPG, which laid out heightened procedures for assessing and approving direct action against terrorist targets outside the United States. Drafted in order to ensure incidental civilian casualties were minimalized, as obligated by international law both treaty and customary. Beyond levels required by international law, the PPG established a preference for capture and laid out a procedural scheme where most decisions of use of lethal force are to be made at the highest senior levels of the U.S. Government.

In addition, Executive Order 13732 established policies directly related to the reduction of civilian casualties and applied to all use of force operations. This order included ex gratia payments for civilian deaths and maintaining channels for engagement with the ICRC and NGOs for help in distinguishing military objectives and civilians. Further, an annual report was to be released regarding information related to civilian casualties. One can begin to imagine the ‘nationalist outrage’ the Trump Administration will face when it is learned that money can be paid to foreign civilians who suffered losses in counterterrorist operations. Getting rid of the annual report and the payments quickly allows the Trump Administration to do its current favorite political tactic: hide behind secrecy.

But these aren’t the only frameworks potentially under attack. Detention of individuals in armed conflict and the prohibitions against torture have at least been flirted with in terms of implementing new rules with a proposed EO to reassert black sites and torture never mind the statutory domestic issues that would be violated. In addition, it seems more likely than not that the use of the criminal justice system and military commissions to provide a level of procedure and substantial right protections for those charged with terrorism related acts will be undermined and shifted for tactics like indefinite detention and quick ad hoc judgments.

There should be no surprise that policies of the previous Administration will be changed. But the United States becoming the bottom floor upholding obligations of international law should worry us. The previous Administration, while criticized, still maintained an ethos of obligation and standards to a rule of law and expectations. This meant it remained important that appearances of violations be preventable, hence the robust framework for use of force. I have yet to see any direct Trump talk suggesting a likeminded desire to keep the United States’ international imagine to that level.

Lastly, we should not expect the Trump Administration to be as concerned and involved in laying out justifications for ongoing operations. Obama, as a constitutional lawyer attuned to the value of the law, naturally played a larger role in developing the framework as an administration priority. Trump, however, cares more about if something can be done then why something can be done. And that could be a silver lining in these times, namely that Trump will by personal preference be bound to a large aspect of the framework simple by an indifference to the work. That being said, don’t expect the heightened levels of procedures to stick around for long. Such values for human life quickly will go away in the name of ‘efficiency.’