LexisNexis

US Department of Defense GC on rule of law and counter-terrorism operations

Speaking at the Rule of Law Day at the IBA’s annual conference in Washington, Department of Defense (DoD) General Counsel, Jennifer O’Connor, gave her insights on these and related themes.

“In my role as the General Counsel, I am personally responsible for providing legal advice directly to the Secretary of Defense.  In particular, I advise the Department’s leadership on all legal matters related to worldwide defense activities in the security interests of the United States, including counterterrorism operations and the Nation’s armed conflict with ISIL and al-Qaida.  

In doing so, I work both within DoD and also with legal colleagues outside of DoD, such as the General Counsels of the Department of State, the CIA, and the National Security Council.  All of us are determined to ensure that the US upholds the rule of law in all that we do.  The day after President Obama took office, he said that ‘Transparency and the rule of law will be the touchstones of this Presidency.’  That speech set the tone for this Administration, which has always had a strong commitment to both transparency and the rule of law.

‘‘There are times when we simply don’t get it right, such as the attack on the Doctors Without borders hospital in Kunduz, Afghanistan. But we are committed to learning from our mistakes

So, why do we think the rule of law is so important?  There are many reasons.  One of the most important is that if the use of force by our military is not seen to be legitimate by our partners, our allies and those we seek to influence, then the military operation will not achieve its purpose.  We believe this is true for us, for our Allies and partners, and for everyone.  Abiding by the rule of law is foundational to what we do.

How then does DoD work to ensure adherence to the rule of law?  First, we send lawyers.  We have thousands of uniformed attorneys who provide legal advice and services at all levels, including at every stage of wartime decision-making.  These attorneys are on the ground or on board the ship. They are with their units that are in the fight.  Every Soldier, Sailor, Airman, and Marine has access to legal support to ensure they understand the importance of adhering to the rule of law. 

Second, we train.  Members of the armed forces are regularly trained on the law of armed conflict.  And much of that training is in realistic training events simulating the actual experiences those members of the military will encounter.  Uniformed attorneys often fashion the legal scenarios used in training and are available for the hard questions afterwards. Attorneys lead discussions to ensure the military service members understand how best to adhere to the rule of law when in the heat of the battle.

Third, we write the law down.  In an effort to ensure that our lawyers have the tools they need at their fingertips, DoD issued the DoD Law of War Manual in June 2015.  It is the first Department-wide manual to be issued by the DoD though it builds on previous manuals from our military branches. This manual incorporates experience from recent military operations and legal guidance, including black-letter rules and commentary to help explain those rules. 

Jennifer O’Connor

Jennifer O’Connor at the IBA Annual Conference 2016 in Washington

And it is not only a resource to our military, but also an explanation to our allies, partners, and even our foes about how we view the rule of law and what standards we expect ourselves and them to meet.  This kind of transparency is especially important in an era of counterterrorism. 

Fourth, we vet our partners.  The U.S. has statutes that work to ensure that we do not provide assistance or training to nations or groups that do not abide by the rule of law.  Since 1999, Congress has restricted the use of DoD funds for any training, equipment, or other assistance for a foreign security force unit if that unit has committed a gross violation of human rights.  This is known as the Leahy Law.  

There are additional U.S. laws, such as those that allow DoD to provide assistance to partner forces on the ground in the fight against ISIL, that require a commitment from those forces to respect human rights and the rule of law.  Through these statutes, and our compliance with them, we provide an example and incentives for states and non-state groups to follow.

I want now to discuss the more specific topic of this panel - how the U.S. commitment to the Rule of Law can effectively continue in an age of international terrorism.  Terrorism pushes hard on a nation’s commitment to the rule of law because terrorists and armed groups like ISIL fight in asymmetric ways, such as targeting civilians, trying to take advantage of countries’ adherence to the law of armed conflict. 

‘‘In May 2013, President Obama announced that he had issued Presidential Policy Guidance, binding on all parts of the Executive Branch… [He] prioritizes capture over lethal action against terrorists, and states that lethal action should be taken only when capture is not feasible

When fighting terrorists, military forces cannot rely on the enemy to respect the laws of armed conflict.  Nor can we assume that they see the value in protecting civilians or using only lawful weapons and tactics.  Our enemy’s violation of the rule of law, however, must not affect our own determination to abide by our laws and values.

One area where terrorism is sometimes thought to test a nation’s commitment to the rule of law is in the treatment of detainees.  Detention in armed conflict is a centuries-old practice that is supported by the law of armed conflict.  I think President Obama’s directions on the treatment of detainees are, and have been from the beginning, very clear. 

On his second full day in office, President Obama issued an Executive Order called, ‘Ensuring Lawful Interrogations.’ It aims ‘to promote the safe, lawful, and humane treatment of individuals in U.S. custody and of U.S. personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the U.S., including the Geneva Conventions, and to take care that the laws of the U.S. are faithfully executed.’  This order served as a message to the world, and particularly to our Allies and partners, that the rule of law cannot be cast aside based on difficult national security situations.

And when the enemy is targeted with lethal force, the rule of law is vitally important.  President Obama has taken many actions that reflect the United States’ commitment to the rule of law during such lethal operations, and he has set transparent standards that are often as a matter of policy more restrictive than what the law requires.  I will highlight a few. 

First example, targeted military strikes.  For context, let me give you a very brief overview of the process that is used when, for example, one of our aircraft attack an ISIL target in Syria.

Let me start by saying that commanders who make targeting decisions, almost everywhere on the battlefield, are supported by staffs that provide them with the information and analysis they need to make a targeting determination that is in accordance with the law of armed conflict.  These staffs include people trained in gathering and analyzing intelligence, others who are experts in weapons systems and their effects, and also lawyers who are experts in applying the law of armed conflict.    

Here is how this generally works.  Assume a commander has a report of a warehouse containing a cache of enemy weapons.  In deciding whether or not to attack this target, the commander must follow the principles of the law of armed conflict, including the principle of distinction.  Distinction requires the military to distinguish between things that are civilian and things that are military, or in this example, between a warehouse with a local farmer’s crops in it and a similar warehouse in which enemy weapons are stored.  

In applying the principle of distinction to a potential target, various staff members provide input such as the intelligence situation, including video and still pictures, as well as information from human and electronic sources.  This information from the intelligence officer would help the commander answer questions like ‘What is the target?’ and ‘How is it connected to the greater enemy effort?’  How recent and reliable the information is, and whether the military can continue to watch it in case the facts change.  Often, a legal advisor plays a key role in all of this.

Once we are satisfied that the warehouse is a military objective and not a civilian facility, the commander then makes a determination based on another important law of war principle, military necessity.  In this second analysis, the staff will try to answer questions such as: ‘What does the target do for the enemy?’ and ‘Why do we think striking that target will help our military efforts?’  In other words, is it really necessary to attack that warehouse?

‘‘In an effort to ensure that our lawyers have the tools they need at their fingertips, DoD issued the DoD Law of War Manual in June 2015

If there is a military necessity to attack the warehouse, the staff then recommends to the commander ‘how’ the attack should take place.  This is a third legal and factual analysis.  Even though the warehouse is targetable, the civilians and civilian buildings around it are still protected and would be considered collateral damage if they were harmed during the attack, so the staff has to determine the best way to limit the potential collateral damage.

This analysis is based on the legal principle of proportionality, which prohibits anticipated injury or death to civilians or damage to civilian property if it would be excessive in relation to the concrete and direct military advantage expected to be gained by the attack.  The staff process for conducting this analysis is quite involved and often includes a great deal of technology. 

If the attack is going to be made by an aircraft launching a bomb of some kind, there are computer modeling programs that provide detailed technical assistance such as the blast area of the weapon, given the construction characteristics of the building.  These modeling programs factor in things like the angle and direction of attack, the actual weapon to be used, and the time of day that the proposed attack will occur.

Many of these factors in the attack can be altered, thus affecting the proportionality analysis.   This process of determining how much collateral damage can be anticipated is called the Collateral Damage Estimate. It imposes both legal and policy constraints on the military commander – generally the more the civilian damage anticipated, the higher up the chain of command the commander must go for approval, and the less likely that the strike will be determined to be proportionate as a matter of law, or allowed to go forward as a policy matter. 

Additionally, the principle of humanity is considered throughout the process to ensure that DoD doesn’t attack using weapons or tactics designed to cause unnecessary suffering in the event that any humans are injured or killed during the strike. Finally, once the strike is approved and taken, we do what is called a ‘battle damage assessment,’ so we can learn and improve including assessing not only how effective the action was in meeting mission objectives but also compliance with all of the legal factors.

This is a very involved process, and there is much more detail to it than I have time to describe.  Despite this thorough process, there are times when the process must be abbreviated, and there are times when we simply don’t get it right.  For example, there have been some tragic mistakes, such as the attack a year ago on a Doctors Without Borders hospital in Kunduz, Afghanistan.  But we are committed to learning from our mistakes.  There was a thorough investigation of the Kunduz incident, and the Secretary of Defense directed our military leaders to take action to mitigate the potential for similar incidents occurring in the future.

Even more stringent measures are implemented when striking a target that is outside the current active battlefield in places like Syria.  In May 2013, President Obama announced that he had issued Presidential Policy Guidance, binding on all parts of the Executive Branch, including DoD, that laid out the policy governing direct action operations against terrorists outside of the United States and outside these active battle zones. 

The actual guidance was classified at the time it was issued, but a redacted version was recently released.  In the document, the President prioritizes capture over lethal action against terrorists, and states that lethal action should be taken only when capture is not feasible.  The Guidance requires ‘near certainty’ that the proposed target is the actual target prior to attack, as well as ‘near certainty’ that no civilians will be injured or killed. 

Jennifer O’Connor

Jennifer O’Connor

It further sets forth procedures for capture and targeting of terrorists, and mandates after-action review within 48 hours of taking direct action against a terrorist.  These policy constraints on the use of military force demonstrate the U.S. commitment to reducing the risk of civilian casualties, even against adversaries who do not act the same way.

And here is a second example – Presidential direction regarding civilian casualties.  This summer, President Obama issued an Executive Order about civilian casualties.  The Order states that, ‘The protection of civilians is fundamentally consistent with the effective, efficient, and decisive use of force in pursuit of U.S. national interests’.

‘‘[The DoD Law of War Manual] is not only a resource to our military, but also an explanation to our allies, partners, and even our foes about how we view the rule of law and what standards we expect ourselves and them to meet

The Executive Order emphasizes the importance of compliance with legal rules and the continuation of best practices that have been developed to minimize civilian casualties.  It directs relevant departments and agencies to continue to take certain measures to protect civilians, such as providing appropriate training, acquiring systems for better battlespace awareness, developing weapons that can be used more discriminately, and conducting post-attack damage assessments. 

In addition, the Order mandates, when appropriate, the review or investigation of incidents where civilian casualties occur, ensures acknowledgment of government responsibility when appropriate, and mandates release of a Report with information on certain counterterrorism strikes each year. 

Finally, remember the quote from President Obama that I mentioned at the beginning.  He said ‘Transparency and the rule of law will be the touchstones of this Presidency.’  So far, I have focused mostly on the rule of law.  As President Obama made clear, however, transparency is also vital. 

For that reason, the United States and the Department of Defense believe that demonstrating the legitimacy of our counterterrorism efforts requires not only complying with the law of armed conflict and setting policy standards that are more restrictive than the law’s requirements, but also providing information to the American people about our counterterrorism efforts. 

As President Obama has said, when we cannot explain our efforts clearly and publicly, we face terrorist propaganda and international suspicion, we erode the legitimacy of our actions in the eyes of our partners and our people, and we undermine accountability in our own government.  Thus, we provide the public with a tremendous amount of information about our operations and the legal basis for them.

For example, in August, the DoD released a new Intelligence Oversight Manual that makes public the information on DoD’s privacy protections and oversight requirements, including the collection of information, protection and evaluation of information that we keep, and the rules for physical searches. 

The Administration also recently released a summary of information about both the number of strikes against terrorist targets outside areas of active hostilities between 2009 and 2015, and the numbers of combatant and non-combatant deaths resulting from those strikes.  The Report also outlined the post-strike review process, and discussed discrepancies between government figures and those of other groups. 

Further, we have public websites that provide significant information on the strikes we conduct in Syria and Iraq. They describe the strikes, where they occurred, the intended targets, and the results. These sites are updated often and provide a picture of our use of force in the fight against ISIL.    

Let me conclude by thanking again the organizers of the conference and our moderator and panel. I hope my remarks have given you some insight into how we at DoD focus on compliance with the rule of law and why we think it is so important.”