Dramatic advances in military technology, the increased presence of civilians in combat, the loss of a distinct location of war, novel threats to national security posed by the extension of war into Cyberspace, and the significant expansion in the use of the classification privilege—these developments challenge the legal and ethical framework that has traditionally constrained military intervention. CERL examines the implications of these and other facets of modern warfare for the rule of law. In working on this mission, the Center’s past and future activities set a foundation that coincides with Attorney General Holder’s call on March 5, 2012 at Northwestern School of Law that, “Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals.” To advance this end, CERL holds conferences and panel discussions and works with law and philosophy students to produce the next generation of ethical and legal scholars.
In today’s world, the most significant challenge to the rule of law stems from the emergent need to address the threat of terrorism in the wake of 9/11. The overwhelming demands of National Security in this new climate have caused significant loss of public faith, both nationally and internationally, in the depth of our commitment to rule of law values. That has in turn led to a reexamination of ethical constraints and duties in many aspects of professional life—one that serves both as an opportunity for legal and ethical development, and risks a redefinition in the fundamental concepts on which we as a society have traditionally based our strong self-conception as a nation that adheres to the rule of law. CERL’s future work will focus on threats to rule of law values that stem from this intense focus on our security needs, and the history of the center already reflects its engagements with a number of contemporary issues.
The most compelling and visible debates on national security and the rule of law have occurred in relation to the growth of the targeted killing program. Although the targeted killing of Osama Bin Laden did not particularly cast the country into ethical debates about our approach to Al-Qaeda, there have been other killings that have raised ethical debates more squarely. The killing of Anwar al-Aulaqi, an American citizen, and other high profile targeted strikes have recently called into question the moral and legal justifications typically offered for the use of targeted strikes. These high profile strikes have included the killing of al-Aulaqi’s sixteen year old son, Abdulrahman al-Aulaqi, the killing of Sherabat Khan Wazir which alleged resulted in the death of dozens of civilians including tribal elders and local police officers, and a strike at an al-Qaeda training camp in Yemen at al-Ma’jalah, which a Yemeni parliamentary inquiry found resulted in the death of 41 local residents including 14 women and 21 children.
Under the auspices of the Institute for Law and Philosophy, University of Pennsylvania Law School held a conference in April of 2011 on targeted killing that brought together legal scholars, military experts, philosophers and public policy experts. This conference and others run by the Institute have supplied an interdisciplinary forum in which scholars and professionals could address crucial issues related to National Security. To name just a small number of topics addressed, consider the following questions about both the legal and the ethical status of targeted killings: First, if targeted killing is ever permissible, what is the range of permissible targets? Should targets be restricted to belligerents only? Or are there individuals who, as civilians, make themselves into legitimate targets by threatening central interests of the United States? A second set of issues has to do with authority and responsibility: Who is permitted to carry out targeted killings? Do private contractors take on the mantle of military justification when they act on behalf of military officials? Can the justification for engaging in a targeted killing as an official defender of the country be transferred to a justification of civilian to assist in such an operation? Most importantly, what is the responsibility of actors who carry out targeted killings that miss their mark? If moral and legal mistakes are made, do the resulting acts of assassination count as war crimes? A third set of issues has to do with the manner in which targeted killings are carried out: Is it morally relevant that remote-controlled machines are used to attack targets? If so, is preemptive killing nevertheless legitimate if performed by a predator drone? And if so, what is the permissible scope of preemptive killing conducted in this way?
A second area of importance for the rule of law concerns the transparency of law and governmental authority. With the pressures of the ongoing response to 9/11, major policies and legal questions of national importance have become less and less open to public view. For example, during the Bush Administration, a series of secret legal memoranda authorized the use of enhanced interrogation techniques against terror suspects. This series of memoranda formed a key component of the Bush Administration’s counterterrorism strategy and yet was hidden from public scrutiny. Four legal memoranda, including the August 2002 memorandum signed by Jay S. Bybee that gave the C.I.A. legal approval for waterboarding, were not released until April 16, 2009, as a court deadline in a lawsuit filed by the American Civil Liberties Union closed. With the Obama Administration, clandestine legal memoranda have sought to justify the use of targeted killings, but these operations were only officially disclosed to the public on April 30th, 2012 in a speech by the Assistant to the President for Homeland Security and Counterterrorism, John Brennan. Even this delayed recognition lacked specificity, neither offering the criteria by which a target is placed on the targeted killing list (the “Joint Prioritized Effects List” (JPEL)) nor the specific evidence the Administration relied on to authorize killings..
The increase in secrecy comes at a cost due to the tradeoff between the need for effective security and the value of transparency. Typically, we understand the publicity of our core public policies as a fundamental aspect of democracy and the rule of law. Immanuel Kant wrote, “every claim to right must have this capacity for publicity,” and John Rawls has echoed by requiring publicity as a condition of the social contract. In contrast, effective national security crucially depends on the State’s ability to control the flow of information. John Brennan, recognizing the importance of transparency amid the difficult decisions of national security the Obama Administration must make, stated at the Woodrow Wilson International Center for Scholars on Monday, April 30, 2012:
“In this fight, we are harnessing every element of American power: intelligence, military, diplomatic, development, economic, financial, law enforcement, homeland security, and the power of our values, including our commitment to the rule of law… Staying true to our values as a nation also includes upholding the transparency upon which our democracy depends.”
CERL will provide a hub for discussion regarding the ethical and legal implications of the expanding use of secrecy in governmental practices. As lawyers and governmental officials are confronted with new and more complex cases of balancing the demands of national security with the restraints required by the rule of law, the Center’s mission grows all the more important.
A third topic of crucial importance in recent years has to do with the exercise of professional judgment in a variety of domains and the internal ethical standards to which such judgments are held. In the domain of professional judgment, the role that professionals are expected to play often conflicts with the measures that would maximize the protection of the rule of law. Traditionally, government lawyers for example, were conceived of as keepers of the conscience of the Executive Branch with regard to its ethical and legal duties at the same time that they were expected to “advocate” for their client and facilitate its aims. However, in many cases, the ethical demands imposed by the rule of law and the professional demands imposed by the role lawyers occupy as advocates conflict. This was on display in the way that the lawyers for the Office of Legal Counsel in the Bush Administration shaped enhanced interrogation policy. Other professionals have recently come under similar scrutiny for displaying a similar conflict of roles. Psychologists and physicians, for example, were recently revealed to have played a crucial role in the controversial task of reverse-engineering the Survival, Evasion, Resistance, Escape techniques (SERE), strategies designed to aid United States soldiers endure captivity and torture during the Cold War. Consequently, the very methods the United States condemned in the Cold War could be used by the United States in its new efforts to ensure national security. These psychologists’ efforts were first implemented on Abu Zubaydah and included blasting rock music at top volume, stripping Zubaydah naked, and making his room so cold that his body turned blue.
Finally, an overarching issue running through all of the foregoing topics is the legitimate scope of the authority of the Executive Branch in times of emergency. It is perhaps the most significant aspect of the challenges of the national security response to 9/11 that more immediate policy and legal shifts have brought with them a change in the scope of executive authority. The historically fundamental commitment to the separation of powers and the reviewability of executive decision-making has been challenged by an ever-expanding conception of the scope of executive authority, based on a greatly altered sense of when the Chief Executive has the authority to invoke the law of emergency powers. This has slowly started to bring fundamental changes to our conceptions of sovereign authority, changes whose reach may be felt significantly farther than the local issues that produced them. The debates among current political theorists, philosophers and constitutional scholars about the permissible scope of executive authority reflect deeply conflicting intuitions in our society about the legitimate scope of that authority. What is urgently required is a theory of legitimate sovereignty that would help to frame debates relating to executive authority in the significantly changed times in which we live.
CERL was conceived when Professor Claire Finkelstein, the University of Pennsylvania’s Algernon Biddle Professor of Law and Professor of Philosophy, noted the need in the wake of 9/11 for an institute dedicated to research on legal, ethical and political issues that relate to promotion of the rule of law. In the past year, Professor Finkelstein, as co-director of the Institute for Law and Philosophy, has moderated as well as organized several conferences and lectures that have demonstrated the difficulty and importance of maintaining the rule of law in a post 9/11 world. The panel discussion “Ethical And Legal Dimensions Of Targeted Killing”, and the conference “Using Targeted Killing To Fight The War On Terror: Philosophical, Moral And Legal Challenges” offered the opportunity to step out of the politically charged environment and engage in consideration of salient and contested aspects of targeted killing. In the roundtable discussion “The Ethics Of Secrecy And The Rule Of Law”, panelists debated the desirability, but more importantly the consistency with the rule of law, of increased secrecy for major policies and legal questions of national importance as a result of pressures to ensure the security of United States citizens.
Professor Finkelstein also co-edited, with Jens Ohlin and Andrew Altman, Targeted Killings: Law and Morality in an Asymmetrical World (Oxford University Press, 2012), a collection which in one binding brings together essays of military lawyers and academics from multiple disciplines who examine the ethical and legal implications of the rise of targeted killing on governmental policy, focusing on drone strikes. In light of the estimate that more than 40 countries now possess drone technology, the issue of targeted killing is not likely to fade in importance. In fact, Scott Horton, contributing editor to Harper’s Magazine, writes with regards to the book:
[T]his valuable collection of essays furnishes powerful insight into the topic from an array of well-regarded experts…[It] is destined to be an indispensable resource for those studying the legal and moral dimensions of drone warfare, which is likely to figure increasingly in global military and intelligence missions in the coming decade.
Some of the questions the essays in this volume address are as follows: What is targeted killing in a military context and what is the theory under which such killings may be permissible? If targeted killing is justified as a military necessity, are there any deontological constraints on the range of permissive topics? Should targets be restricted to traditional belligerents only? Or do civilians transform themselves into legitimate targets by threatening the interests or security of the United States? How does this transformation occur? Does the law of war confine lawful attacks to conventional battlefields or has the specter of terrorism transformed the entire world into a global battlefield?
A second section examines the tradeoffs implicit in consequentialist arguments supporting targeted killings. Is necessity a proper framework for justifying targeted killings and, if so, are there any limits to the use of tradeoffs to justify the utilitarian foundation implicit in necessity claims? Do law and morality break down at the margins when military and civilian leaders are forced to take drastic action to stop deadly terrorist attacks? Or, in contrast, are targeted killings against marked individuals the logical extension of a legal regime that promotes surgical strikes and prohibits the kind of carpet-bombing most likely to cause collateral damage?
A third set of issues deals more specifically with the proper scope of self-defense in the targeted killings debate. Does national self-defense under the U.N. Charter follow parallel principles to personal self-defense in domestic criminal law systems? Is self-defense available as a justification under international law when the threat of terrorism comes from a non-state actor? Finally, what is the status of targeted killing according to traditional just war theory? More specifically, does the doctrine of self-defense allow for preemptive action? Are targeted killings only justified as defensive force when detention is impossible? Must the threat from the target be imminent before self-defense is allowed, and how does this requirement relate to the traditional imminence requirements in jus ad bellum and domestic criminal law?
A fourth category tackles the independence of jus in bello from jus ad bellum. Is it relevant to the legal analysis that the United States is involved in a justified campaign against a non-state group devoted to terrorism? Can a “neutral” law regarding targeted killings apply both to the United States and to our enemies? In particular, the moral equality of combatants represents a unique, bedrock principle of the law of war that does not exist in domestic criminal war, where the right to kill is conferred only on victims of aggression, not the aggressors themselves. When exactly does a situation transform from one governed by criminal law to one governed by the radically different laws of war?
Finally, the volume concludes with a consideration of the asymmetry inherent in targeted killings. Drone operators working remotely in Virginia (or elsewhere) launch lethal attacks against the enemy, but do not subject themselves to the reciprocal risk of being killed. This asymmetry reduces the disincentives usually associated with launching a military attack, which traditionally involved great risks to one’s military personnel. The use of private military contractors in this context also reduces this risk and further exacerbates the asymmetry of modern warfare.
These questions arise at the intersection of moral, political, and legal theory, just war theory, national security law, public international law, international humanitarian law, as well as criminal law theory. Thus, the volume is truly an interdisciplinary effort to meld the perspectives of practitioners and applied legal scholars on the practice of targeted killing with that of philosophers seeking moral and political justifications for this particular aspect of war.
CERL is a unique forum for the interdisciplinary investigation of foundational issues in national security. The only Center of its kind housed within a law school, CERL is dedicated to addressing foundational issues in national security that affect the rule of law, and to do so from the vantage points of multiple disciplines and both theoretical and practical perspectives, while preserving and enhancing the esteem in which the Law School and the University are held worldwide. While some institutes have significantly contributed to research on rule of law issues, they focus on the criminal justice system. Other institutes specialize on issues of national security, but do not take up the pressing legal or ethical issues relating to national security. Only CERL brings together research regarding rule of law/ national security issues in one world renowned University.
Embracing the need for legal scholarship that addresses issues of national security while providing moral justification for legal positions, CERL stands out as a leader in a small community, dedicating many of its recent lectures and panel discussions to national security issues and their relationship to the rule of law. Yet even in this small community of institutes specializing in law and national security, CERL has distinguished itself as an exemplar of excellence. The Center has published one of only two books solely focusing on the pressing legal and ethical issues relating to targeted killing and drone strikes in the wake of the public’s new attention to the issue. Furthermore, unlike The Center on Law and Security and The Georgetown Center on National Security, CERL stresses the need for the interplay between the ethical and the legal. The Center supports scholars, public officials and military personnel who have expertise in both the legal and ethical realms through its conferences that bring together scholars from multiple disciplines, and its work with law students as well as graduate students. By serving as a hub for scholars, the Center will ultimately foster more scholarly work on the rule of law and ethics, with an impact on real policy decisions.
While encouraging more interdisciplinary scholarship, the Center’s approach to ethics and legal theory is unique in that it does not appeal to any particular theory or locate itself within any single field of study. The Center’s commitment to practical moral questions demands that no matter what school of ethics or legal theory fellows, panelists or guest lecturers use to ground their positions, they must be able to bridge theory and practice. By bringing together a broad range of perspectives and professions, the Center seeks both to develop academic work that is widely accessible and useful to diverse perspectives, and to be a hub for extraordinary talent visiting and supporting the Law School and University. More than a forum for only legal scholars or philosophers, the events at the Center create a more open and pluralistic environment for intellectual exchange and career development in a world where informed understanding and societal improvement is more critical than ever before.
1. Holder, Eric. Northwestern School of Law. 5 Mar. 2012. Speech. Department of Justice News. Web. 2 Jun. 2012.
2. Mazzetti, M. and Shane, S., “Interrogation Memos Detail Harsh Tactics by the C.I.A.”The New York Times 16 Apr. 2009. Web. 3 June 2012.
3. Brennan, John. “The Ethics and Efficacy of the President’s Counterterrorism Strategy”. Woodrow Wilson International Center for Scholars. 30 Apr. 2012. Speech. Wilson Center Archives. Web. 2 Jun. 2012
4. Kant, Immanuel “Towards Perpetual Peace” in Practical Philosophy, ed. Paul Guyer and Allan Wood (Cambridge University Press, Cambridge, UK, 1999), 347, 8:381.
5. Rawls, John. Political Liberalism (Columbia University Press; New York, NY, 1994), 66-71.
6. Brennan, John. “The Ethics and Efficacy of the President’s Counterterrorism Strategy”. Woodrow Wilson International Center for Scholars. 30 Apr. 2012. Speech. Wilson Center Archives. Web. 2 Jun. 2012.
7. Eban, K. “Research and Awe.” Vanity Fair 17 Jul. 2007. Web 2 May 2012.
8. Shane, S., and Mazzetti, M. “In Adopting Harsh Tactics, No Look at Past Use.” The New York Times 21 Apr. 2009. Web. 4 June 2012.
9. “Hillary Clinton boasts of US cyberwar against al-Qaeda”The Telegraph, 24 May 2012