CENTER FOR ETHICS AND THE RULE OF LAW​

Using Targeted Killing to fight the War on Terror

Philosophical, Moral and Legal Challenges

April 15 -
 16, 2011

Co-sponsored by: Jean Beer Blumenfeld Center for Ethics of Georgia State

The Conference

The Obama administration has authorized the CIA to target and kill Anwar al-Aulaqi, a radical Muslim cleric believed to have ties to al-Qaeda, on the ground that he helped to orchestrate attacks against the United States. The authorization raises the interesting question of who is a legitimate target of such military actions. In particular, it is arguably difficult to think of al-Aulaqi as a belligerent against the U.S., as he is himself an American citizen. Al-Aulaqi, however, is not the only person whose identification as a legitimate target raises moral and legal complications. The U.S. and other governments have been targeting and killing many others as part of both the fight against Islamic terrorists and the wars in Iraq and Afghanistan, and the widespread use of this technique raises important questions in just war theory. Notable as well is the fact that the U.S. has been targeting suspected militants with unmanned aerial drones, sophisticated military planes controlled remotely from distant lands.

The questions the conference will explore fall into four rough categories. First is a series of basic questions identifying the activity and its parameters: What is targeted killing in a military context and what is the theory under which such killings may be permissible? 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 nevertheless 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? Is the justification for engaging in a targeted killing one person may have as an official defender of the country transferrable to a civilian assister? 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 droid? And if so, what is the permissible scope of preemptive killing conducted in this way? A fourth set of issues attempts to penetrate the theory of targeted killing by comparing it to other areas of the law: What is the relation between targeted killing and self-defense? Does societal self-defense follow parallel principles to personal self-defense? And finally, what is the status of targeted killing according to traditional just war theory and international law? These questions arise at the intersection of moral, political, and legal theory, just war theory, national security law, and international law, as well as criminal and constitutional law and theory.

Schedule


THURSDAY, APRIL 14

4:30-6 pm | Gittis 213, Kushner Classroom
Reception to Follow
Title: Counter-Terror: The Model, the Reality
Featuring Dell Dailey, former Ambassador-at-Large and Coordinator for Counter-Terrorism, U.S. Department of State and Director, Center for Special Operations, U.S. Special Operations Command
Moderator: Claire Finkelstein
Commentator: Deborah Pearlstein, Visiting Faculty Fellow, University of Pennsylvania Law School

In recent years, we have come to appreciate that the United States faces real and profound terrorist threats from both domestic and international terrorists. But what happens when military and civilian leaders become aware of an imminent threat? What national and international tools are available to the U.S. government to identify and prevent a terrorist act from taking place? How do American laws and policies intersect with international law when a terror threat hits the radar in real time? Please join Ambassador Dell Dailey for a wide-ranging discussion that will look at cutting edge issues facing America’s counter-terrorism operations today. Ambassador Dailey will present the current counter terror model, discuss new or existing organizations to assist countering terror, and provide an updated assessment of Al Qaeda. A question and answer period will follow. This presentation is jointly sponsored by the Penn Law Office of International Programs, the Institute for Law and Philosophy and the Penn Law National Security Society. It is free and open to the public.

CONFERENCE SCHEDULE

Note: Abstracts are open but a login is required for all papers.

FRIDAY APRIL 15
09:00 – 09:30 amBreakfast
09:30 – 11:00 amSESSION 1: The Problem of Targeted Killing

Moderator: Professor Claire Finkelstein

Colonel Max Maxwell, “Like Playing Whack-A-Mole Without a Mallet? Allowing the State to Rebut the Civilian Presumption”
Abstract (pdf) | Paper (pdf)
Professor Kenneth Anderson, “A Tension Between Efficiencies of Jus in Bello and Jus Ad Bellum In the Practice of Targeted Killing Through Drone Warfare”
Abstract (pdf) | Paper (pdf) [updated]

Commentator: Professor Deborah Pearlstein
11:00 – 11:30 amBreak
11:30 – 01:00 pmSESSION 2: Targeted Killings and the Rights of Non-Combatants

Moderator: Professor William Ewald

Professor Jens Ohlin, “Targeting Co-Belligerents”
Abstract (pdf) | Paper (pdf)
Professor Craig Martin, “Going Medieval: Targeted Killing, Armed Conflict, and Self-Defense”
Abstract (pdf) | Paper (pdf) [revised]

Commentator: Professor Alexander Greenawalt
01:00 – 02:00 pmLunch
02:00 – 03:30 pmSESSION 3: Targeted Killing and its Political Implications

Moderator: Professor Stephen Morse

Professor Amos Guiora, “Targeted Killing: A Legal, Practical and Moral Analysis”
Abstract (pdf) | Paper (pdf)
Professor Fernando Tesón, “Is Targeted Killing Ever Justified?”
Abstract (pdf) | Paper (pdf)

Commentator: Professor Andrew Altman
03:30 – 04:00 pmBreak
04:00 – 05:30 pmSESSION 4: Implementation of Targeted Killing in the Changing Landscape of Modern Warfare

Moderator: Professor John Dehn

Professor Gregory McNeal, “Collateral Damage and the Administrative Process of Targeted Killing”
Abstract (pdf)
Professor Kevin Govern, “Guns for Hire – Death on Demand?”
Abstract (pdf) | Paper (pdf)

Commentator: Professor Jean Galbraith
05:30 – 06:30 pmBreak.
06:30 pmCocktails and Dinner at the home of Claire Finkelstein & Leo Katz.

Keynote address:
Ambassador Dell Dailey, “Targeted Killing – An Operators Perspective”
SATURDAY APRIL 16
09:00 – 09:30 amBreakfast
09:30 – 11:00 amSESSION 5: Targeted Killing under Military versus Criminal Law Paradigms

Moderator: Professor Matt Lister

Professor Claire Finkelstein, “Targeted Killing as Preemptive Action”
Abstract (pdf) | Paper (pdf)
Major Richard Meyer, “An Argument for Formalizing the Commencement of Hostilities”
Abstract (pdf) | Outline (pdf)

Commentator: Professor Luis Chiesa
11:00 – 11:30 amBreak
11:30 – 01:00 pmSESSION 6: Targeted Killing and Self-Defense

Moderator: Professor Virginia Held

Professor Russell Christopher, “Targeted Killing and the Imminence Requirement”
Abstract (pdf) | Paper (pdf)
Professor Phil Montague, “Defending Defensive Targeted Killings”
Abstract (pdf) | Paper (pdf)

Commentator: Professor Larry Alexander
01:00 – 02:30 pmLunch
02:30 – 04:00 pmSESSION 7: The Boundaries of Consequentialist Calculation

Moderator: Professor Larry Alexander
Professor Peter Vallentyne, “Enforcement Rights against Non-Culpable Non-just Intrusion”
Abstract (pdf) | Paper (pdf)
Professor Leo Katz, “Targeted Killings and Cyclical Choices”
Abstract (pdf) | Paper (pdf)

Commentator: Doug Weck
04:00 – 04:30 pmBreak
04:30 – 06:00 pmSESSION 8: The Normative Framework of Targeted Killing

Moderator: Professor Claire Finkelstein

Professor Jeremy Waldron, “Can Targeted Killing Work as a Neutral Principle?”
Abstract (pdf) | Paper (pdf)
Professor Jeff McMahan, “Targeted Killing in Morality and Law”
Abstract (pdf) | Paper (pdf)

Commentator: Professor Stephen Perry
06:00 pmCocktails and Dinner at Chestnut Hill Cricket Club

Participants

Professor Lawrence Alexander

Warren Distinguished Professor of LawUniversity of San Diego Schoolof Law

Professor Andrew Altman

Professor of Philosophy and Director of Research for the Jean Beer Blumenfeld Center forEthicsGeorgia State University, Department of Philosophy

Professor Kenneth Anderson

Professor ofLawAmerican University Washington College of Law

Professor Luis Chiesa

Associate Professor of LawPace LawSchool

Professor RussellChristopher

Professor of LawThe University of Tulsa College of Law

Ambassador DellDailey

Department of State

Major John Dehn

Assistant ProfessorUS Military Academy atUS Army

Professor William Ewald

Professor of Law and PhilosophyUniversity of Pennsylvania

Professor Eric Feldman

Deputy Dean for International Affairs and Professor of LawUniversity of Pennsylvania Law School

Professor Claire Finkelstein

Algernon Biddle Professor of Law and Professor of Philosophy, Co-Director of the Institute for Law & PhilosophyUniversity ofPennsylvania Law School

Professor Jean Galbraith

Sharswood Fellow in Law and International AffairsUniversity of Pennsylvania LawSchool

Professor Kevin Govern

Ave Maria School of Law

Professor Alexander Greenawalt

Associate Professor of LawPace Law School

Professor Amos Guiora

Professor of LawUniversity of Utah S.J. Quinney College of Law

Professor Virginia Held

Distinguished ProfessorPhilosophy Program, The Graduate Center, CUNY

Professor Frances M. Kamm

Littauer Professor of Philosophy and Public PolicyProfessor of Philosophy, Faculty of Arts & SciencesHarvard University

Professor Leo Katz

Frank Carano Professor of LawUniversity of Pennsylvania Law School

Professor Craig Martin

Associate Professor of LawWashburn University School of Law

Colonel Mark Maxwell

National War College

Professor Jeff McMahan

Professor of PhilosophyRutgers University

Professor Gregory S. McNeal

Associate Professor of LawPepperdine UniversitySchool of Law

Major Richard Meyer

Assistant ProfessorDepartment of Law, United States Military Academy, West Point

Professor Phil Montague

Professor EmeritusWestern Washington University, Department ofPhilosophy

Professor Stephen Morse

Ferdinand Wakeman Hubbell Professor of Law; Professor of Psychology and Law in PsychiatryUniversity ofPennsylvania Law School

Professor Jens Ohlin

Assistant Professor of LawCornell LawSchool

Professor Deborah Pearlstein

Visiting Faculty FellowUniversity of Pennsylvania Law School

Professor Stephen Perry

John J. O’Brien Professor of Law & Professor of Philosophy, Co-Director of the Institute for Law & PhilosophyUniversity ofPennsylvania Law School

Professor Harvey Rubin

Professor of MedicineUniversity of Pennsylvania School ofMedicine

Professor Fernando Tesón

Tobias Simon Eminent ScholarFlorida State University

Professor Peter Vallentyne

Florence G. Kline Chair in PhilosophyUniversity of Missouri-Columbia

Professor Jeremy Waldron

University ProfessorNew York University School of Law

Doug Weck

Department of Philosophy and Law School

Suggested Readings

Background Law

• Orna Ben-Naftalit & Keren R. Michaeli:
‘We Must Not Make a Scarecrow of the Law’: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 CORNELL INT’L L.J. 233 (2003) [PDF]
• William C. Banks and Peter Raven-Hansen:
Targeted Killing and Assassination: The U.S. Legal Framework, 37 U. RICH. L. REV. 667 (2003) [PDF]
• Richard Murphy & Afsheen John Radsan:
Due Process and the Targeted Killing of Terrorists, 31 CARDOZO L. REV. 405 (2009) [PDF]
• Mary Ellen O’Connell:
Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 (Notre Dame Law School Legal Studies Research Paper No. 09-43, 2010) (PDF)
• Gabriella Blum and Philip Heymann:
Law and Policy of Targeted Killing, 1 HARV. NAT’L SEC. J. 145 (2010) [PDF]
• Nils Melzer:
Targeted Killing in International Law (2008)
• Jordan J. Praust:
Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan, 19.2 J. TRANSNAT’L L. & POL’Y 237 (2010) [PDF]
• Kenneth Anderson:
Targeted Killing in U.S. Counterterrorism Strategy and Law (Brookings Inst., Working Paper, 2009) [PDF]
• J. Nicholas Kendall:
Israeli Counter-Terrorism: “Targeted Killings” Under International Law, 80 N.C. L. REV. 1069 (2002) [PDF]
• Michael L. Gross
Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict (2009)
• Video:
Wittes v. O’Connell on Targeted Killing and Drones (2010), available at http://www.lawfareblog.com/2010/10/wittes-v-oconnell-on-targeted-killing-and-drones
• Opinio Juris on Targeted Killing
• The Geneva Conventions of 1949 and their Additional Protocols
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• Federal Torture Statutes, 18 U.S.C § 2340 (A)-(B)
• Federal Torture Statutes, 10 U.S.C § 948r
• International Committee of the Red Cross, Clarifying the Notion of Direct Participation in Hostilities

Press Coverage

• Inside the Killing Machine Newsweek
• Gary Solis
CIA drone attacks produce America’s own unlawful combatants
• Geoffrey Robertson
Is It Lawful to Kill Gaddafi?
• Ken Dilanian
CIA has slashed its terrorism interrogation role
• Charlie Savage
Secret U.S. Memo Made Legal Case to Kill a Citizen New York Times
• Scott Horton
Justifying the Killing of an American
• David Cole
Killing Citizens in Secret
• Ahmed Al-Haj
Yemen Says Air-Strike Kills Al-Qaeda Media Chief
• Eric Schmitt and Thom Shanker
U.S. Debated Cyberwarfare in Attack Plan on Libya
• Morris Davis
Combatant Immunity and the Death of Anwar al-Awlaqi
• Nicholas Schmidle
Getting Bin Ladin [PDF]
• David S. Cloud and David Zucchino
Multiple missteps led to drone killing U.S. troops in Afghanistan
• Spencer Ackerman
CIA Drones Kill Large Groups Without Knowing Who They Are
• Daphne Eviatar
CIA Drones Gone Wild? [PDF]
• Adam Entous
US Tightens Drone Rules
• Daniel Swift
Drone Knowns and Drone Unknowns [PDF]
• Iran’s downing of U.S. drone rattles Washington Tehran Times
• Scott Shane and David E. Sanger
Drone Crash in Iran Reveals Secret U.S. Surveillance Effort
• Peter W. Singer
Do Drones Undermine Democracy? [PDF] New York Times
• Eric Schmitt and Michael S. Schmidt
U.S. Drones Patrolling Its Skies Provoke Outrage in Iraq New York Times
• Karen DeYoung
ACLU sues to force release of drone attack records The Washington Post
The complaint [PDF] by the ACLU
• Editorial
America’s drone wars Los Angeles Times

Contact us

For any questions regarding the conference or registration, please contact: Jennifer Cohen at [email protected]

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Using Targeted Killing to fight the War on Terror