National Security Advisors

Negotiating Implementation of a Peace Agreement: Lessons Learned from Five Years at the Negotiating Table

See my article, "Negotiating Implementation of a Peace Agreement: Lessons Learned from Five Years at the Negotiating Table", forthcoming in the Cardozo Journal of Conflict Resolution in 2010. 

Abstract:     
For five years (1994-1999), I directly negotiated ‘on the ground’ implementation of the Israeli-Palestinian Peace Process in the Gaza Strip. In my capacity as the Israel Defense Forces Judge Advocate General’s Corps Legal Advisor to the IDF Commander, Gaza Strip (1994-1997) I had direct responsibility for both interpretation and negotiation, first for the Gaza-Jericho Agreement and subsequently for the Interim Agreement as it applied to the Gaza Strip. The article which addressees fundamental differences between agreement ‘architects’ and agreement ‘implementers’ is intended to facilitate future negotiations and implementations alike. Based on a ‘bird’s eye’ view I suggest ten core ‘lessons learned’ relevant to negotiating including cultural, linguistic, tactical, strategic and operational considerations.

Cross posted in AIDP Blog.

American Counterterrorism: The Triangle of Detention, Interrogation and Trial

See my article, American Counterterrorism: The Triangle of Detention, Interrogation and Trial, which is soon to be published for the Magna Carta Institute's Symposium: "Towards a Global Legal Counter-Terrorism Model: Transatlantic Perspectives".

Abstract:     
Eight years after 9/11, American counterterrorism policy is in a state of extraordinary flux. More precisely it is still in its infancy. In the immediate aftermath of 9/11 President Bush declared ‘war on terrorism’, established a torture based interrogation regime, signed an Executive Order creating Military Commissions and put a price on Bin-Laden’s head. These policies - articulated and implemented without consulting Congress - represent the ‘unitary executive’ theory articulated by Professor John Yoo. While the Congress was largely silent, the Supreme Court’s approach has been halting at best, confused at worst. In other words, the Executive branch under President Bush was largely free from the checks and balances regime as articulated in the U.S. Constitution. Separation of powers, according to the Bush Administration, relegated the Congress and the Court to the ‘sidelines’ of counterterrorism.

Historians will debate the efficacy and effectiveness of this paradigm, law academics will discuss its legality, security experts will examine whether expanded executive powers enhanced counterterrorism, comparativists will inquire whether models implemented by other countries could not have been tweaked rather than re-inventing the wheel, and the general public will ask ‘are we safe’. Suffice it to say, the debate ahead of us is long, complicated and fraught with political overtones.

In the meantime, the Obama Administration has an extraordinarily full plate of demanding decisions. With respect to counterterrorism, the President must address core issues and resolve long simmering dilemmas. While examining the actions of the Bush Administration is important, resolving existing conundrums is essential.

Cross posted in AIDP Blog.

Pre-Empting Terror Bombings – A Comparative Approach to Anticipatory Self-Defense

See my article, Pre-Empting Terror Bombings - A Comparative Approach to Anticipatory Self-Defense, which is forthcoming in the University of Toledo Law Review in 2010. 

Abstract:     
The extreme urgency in discussing terror bombings and anticipatory self-defense cannot be overstated. Terror bombings were responsible for the single bloodiest month for U.S. and British troops in Afghanistan (July, 2009), for the death of nine people in Indonesia (July, 2009) for the death of three policemen in Spain and for the death of countless Iraqi citizens (including August, 2009), just to name a few. This article specifically focuses on anticipatory self defense and intelligence gathering in an effort to proactively prevent terror bombings. Terror bombing is defined herein within the broadest possible parameters to include the following: dirty bombs, suicide bombings, remote controlled bombings and nuclear weapons and presents the greatest contemporary threat presently posed by terrorists. Therefore, it is critical that terror bombings are understood and effective counter-measures developed. The most effective way to understand the threat is through a detailed comparative analysis of terror bombings and the operational, policy, legislative, and judicial responses of the nations affected. In the article, I propose that the key to pre-empt, prevent and respond to the threats posed by terror bombings is stronger intelligence which is crucial in allowing nations to focus on effective anticipatory self-defense.

Cross posted in AIDP Blog.

Not "By All Means Necessary': A Comparative Framework for Post-9/11 Approaches to Counterterrorism

See my article, Not “By All Means Necessary”: A Comparative Framework for Post-9/11 Approaches to Counterterrorism, which will be published by Case Western Reserve Journal of International Law.

Abstract:     
Counterterrorism significantly benefits from a comparativist approach. Precisely because no one country has the monopoly on effective operational measures, nation states significantly benefit from analyzing measures applied by other states confronting similar dilemmas and challenges subject to the role of law. To that end, this article examines the policies of targeted killing and administrative detention as applied in Israel and asks whether and how they are applicable to American counterterrorism. In asking this question, it is important to determine whether the two policies are relevant to the U.S. legal framework. An important consideration is how the differences between Israeli and American societies, geographies, constitutions, and strategies condition the counterterrorism policy of each country. As a result of such differences, what works in one country may not work in another. While I am an unequivocal advocate for comparative research and analysis and have sought to bring this approach to my scholarship, I am fully aware of its limitations. That said, I firmly believe that nation states can and must learn from each other. While judicial, constitutional, and societal paradigms are unique and distinct, like-minded civil, democratic states must undertake the critical effort to understand how similar countries address similar issues.

Cross posted in AIDP Blog

Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare

See the article, Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare, that I co-authored with Laurie R. Blank from Emory Law School which will be published in the inaugural volume of the Harvard National Security Journal.

Abstract:     
Current strategy in Afghanistan starkly illustrates the extraordinary challenges new warfare poses for commanders on the ground. U.S. forces fight the Taliban and al-Qaeda in Afghanistan, but must do so while above all protecting Afghan civilians from both enemy attacks and the effects of U.S. counterinsurgency operations – a difficult and complicated task.

As new warfare became a prevalent – and now predominant – form of conflict, the law did not adapt appropriately to the complicated scenarios new warfare presented. The international community continued to focus on traditional visions of combatants and civilians, notwithstanding the disconnect between that framework and the reality on the ground in new warfare. Most criticisms of the law argued that the law could no longer apply, when, in fact, such critiques simply did not examine how it could apply in a more agile way. Agility means that the law can adapt to changing circumstances and meet the needs of policymakers and commanders on the ground alike; that the law must allow room for new ways of thinking that uphold the law’s goals and principles precisely when they are under fire. To maximize that agility, we operationalize the law with a new framework and guidelines for commanders.

In traditional state vs. state conflict, applying the legal obligations of distinction and proportionality through on-the-ground guidelines was relatively simple; in new warfare, it is immensely complicated. The law of armed conflict does not presently provide commanders with the tools they need to fulfill their mission while simultaneously protecting their soldiers and innocent civilians alike. We re-categorize and re-define persons in the zone of combat to enable commanders to distinguish between innocent civilians and legitimate targets, and separate the latter group into several sub-categories: members of organized armed groups, permanent targets, recurring targets, transitory targets, and legitimate subjects of detention. Using these new categories, we provide commanders with effective tools to distinguish among persons in the zone of combat. Commanders can then determine who (and how) to target, who to detain and who to protect – the only way to meet the twin goals of mission success and protection of innocents.

Cross posted in AIDP Blog

License to Kill

See my article, License to Kill, published in Foreign Policy on July 13, 2009.  In light of the new reports that the CIA operated a secret program to capture or kill Al-Qaeda operatives, this article discusses my personal experience advising Israeli Defense Forces' commanders on the legality of targeted killings in the Gaza Strip and the crucial and complex considerations that must be addressed in implementing and utilizing a targeted kill policy. 

Cross posted in AIDP Blog.

Judicial Review and the Executive: Lessons from Israel

See my op-ed, Judicial Review and the Executive: Lessons from Israel, published in the Jurist in which I propose that if the US had followed Israel's lead in taking an aggressive approach to judicial review of executive action, controversial Bush administration actions such as torture, military commisions, and indefinite detention would have been subjected to the strict scrutiny they deserved. 

Cross posted in AIDP Blog

International Law: Where Have we Been; Where are we Going?

See my article, International Law: Where Have we Been; Where are we Going?, published in Univesity of Pennsylvania Journal of International Economic Law.

Abstract:     
The need to operationalize international law from the perspective of the commander is, I suggest, an absolutely critical requirement of academics, policy-makers, human rights organizations, and military commanders (junior and senior alike). Otherwise, the commander will be stuck with yesterday’s rules in today’s – and tomorrow’s – conflict. The inherent unsuitability of these rules to the conflict will both make public international law increasingly irrelevant from the perspective of the single most important practitioners – the commanders – and will do a fundamental disservice to those who most critically need its protection – innocent civilians. The innocent civilian is entitled to international humanitarian law protections. That is obvious. If the individual is a combatant and therefore meets criteria to be defined as legitimate target then, all bets are off, with the caveat that the soldier must act when dealing with this combatant in accordance with the critical principles of international law: proportionality, alternatives, military necessity, and collateral damage. But what is the solider to do when the scenario is in the hazy, foggy middle that defies easy categorization and classification? The extremes are easy, the middle is complicated. Classic international law and international humanitarian principles are clear with respect to the former; I suggest they are unhelpful regarding the latter. Unfortunately, operational counterterrorism is most complicated in the haze that is all but inevitable when facts are unclear, how is the soldier to act? Relying on time-honored principles developed in different operational contexts may not provide sufficient guidelines. 

Cross posted in AIDP Blog

Religious Extremism: A Fundamental Danger

Read my article, Religious Extremism: A Fundamental Danger, published in South Texas Law Review. 

Abstract:

 Terrorism constitutes one of the gravest threats against democratic societies in the 21st century; in particular, religiously motivated terrorism. Why is this the case? There are many reasons. Religion is a powerful motivator for both positive social change and mass violence. It is a force in society that is difficult for many in a secular society to truly understand. It is an institution that is protected in civil society, whether by a state’s own Constitution or international agreements

Given that religious violence constitutes such a grave threat to democracies, governments must begin to examine this institution more critically than they have in the past. Governments are charged not only with protecting civil liberties, like freedom of or from religion, but with protecting their citizens from internal and external threats. This Article discusses the framework modern democratic governments must begin to institute if they are to protect freedom of religion and effectively respond to a unique threat to safety. Five countries – the United States, the United Kingdom, Turkey, Israel and the Netherlands – will be examined. My primary thesis is that civil societies cannot afford to continue to treat religion as an “untouchable” subject – we must begin to understand what religion is in order to know when and how it may be appropriately limited for the benefit of society.

Cross Posted in AIDP Blog

Changes to the UCMJ needed to prevent Presidential Overreaching

In early May, President Obama announced the administration’s intention to continue the use of military commissions to try some of the suspected terrorists now being held atGuantanamo.  At the same time, the President announced a number of changes, including a prohibition on the use of evidence secured as a result of cruel, inhuman, or degrading treatment.  In addition, the President ordered the modification of the Commission’s evidentiary rules to place the burden on the party offering hearsay evidence to establish its reliability; previously, the party objecting to hearsay had the burden to show the evidence was unreliable, a burden that often fell on the accused. 

 

The Obama administration also announced it would be pursuing legislative changes to the Military Commissions Act.  To ensure that any procedures governing military commissions that depart from the established procedures in military courts-martial are based on legitimate national security concerns, we would recommend as well a specific change to Article 36(b) to the Uniform Code of Military Justice. As currently formulated, Article 36(b) requires that the rules and regulations for military commissions and the rules and regulations for military courts-martial be uniform insofar as practicable The Supreme Court concluded in Hamdan v. Rumsfeld that this was to ensure the rules for military commissions were not modified merely for the sake of expedience. 

 

Unfortunately, Article 36(b) does not set out a process to determine, if, when, and how the procedures for military commissions should depart from the procedures found in military courts-martial.  This lack of clarity means that the potential still exists for a President to modify the rules based upon expediency rather than legitimate national security concerns. 

 

To prevent such Presidential tinkering, Article 36(b) should be amended to provide that all rules, procedures and regulations for military commissions be uniform so far as practical, and that, before the President adopts any rules, regulations, and procedures that differ from those governing trial by courts-martial, he must submit to Congress a justification and explanation of why the rules governing courts-martial are not practicable. 

 

This amendment would accomplish several objectives.  First, it would clarify that the President has the responsibility to make the initial practicality determination if he decides that military commission procedures should depart from courts-martial procedures.  Because he, as Commander in Chief, will be the institutional actor seeking to establish military commissions, it is appropriate that he have the burden of showing impracticality.   

 

Second, this amendment would require the President to more completely and precisely articulate why he believed a departure from the courts-martial rules and procedures was necessary.  The amended Article would more fully align the use of military commissions with historical precedent—precedent that strongly favors procedures consistent with those used in courts-martial.  If the President wanted to depart from that precedent, then he would have to fully explain and justify such a departure.  This requirement will help to ensure that departures are not motivated by a desire simply to develop a more convenient adjudicatory tool.

 

Third, by requiring the President to explain why existing procedures are not practical, the amended Article 36(b) would give Congress an opportunity to evaluate the President’s exercise of his authority.  Congress could review the explanation put forth by the President and make its own determination as to whether his decision was justified.  If Congress disagrees with the President, it has the constitutional authority to take action—either to seek compromise or otherwise prevent the President from changing the rules and procedures.  The very act of reviewing these changes would be beneficial, increasing transparency and affording citizens the opportunity to understand the implications of the suggested changes.

 

Finally, this amendment to Article 36(b) would help to ensure that the President will develop a record stating why particular traditional procedures are impracticable.  The courts would then have a basis upon which to evaluate whether the President’s determinations satisfy Article 36(b).  And so the third branch of the government would provide an additional check upon a President tempted to allow an interest in expediency to trump the rule of law.

Victor Hansen and Lawrence Friedman, New England Law Boston