WASHINGTON — Is the targeted killing of a terrorist murder or the lawful response to an enemy combatant? What if the terrorist wasn’t “on the battlefield” in Afghanistan? What if the terrorist was an American citizen?

These questions are being debated by courts and the public as the case of Anwar al-Awlaki’s inclusion on a list of people to be killed by American agents without trial is challenged. Al-Awlaki, a native of New Mexico, is a prominent advocate of violent jihad against the U.S.

Complete video recapsGary Solis, a Georgetown University law professor and author of “The Law of Armed Conflict: International Humanitarian Law in War,” and Benjamin Wittes, senior fellow in governance studies at the Brookings Institution and author of “Law and the Long War: The Future of Justice in the Age of Terror,” discussed the topic at a recent panel hosted by the Medill National Security Journalism Initiative.

When it comes to targeting U.S. citizens, the justification lies on their classification – civilian or combatant, Solis said. Civilians are protected under the law of war so they cannot be purposely targeted, he said.

But if a civilian participates in hostilities, he forfeits that protection and may be lawfully targeted and killed, Solis said.  “So the question is what constitutes taking a direct part in hostilities?” →
American officials link al-Awlaki, a native of New Mexico and a prominent advocate of violent jihad against the U.S., with the 9/11 attackers, the would-be Christmas Day bomber and the man accused of trying to detonate a bomb in Times Square. But Solis said ties do not seem strong enough.

There also is the issue of defining the boundaries of an armed conflict, Wittes said.

Georgetown University law professor Gary Solis (left) listens as Benjamin Wittes, Brookings Institution senior fellow in governance studies, discuss the legalities of covert operations and targeted killings.
Photo/Sarah Chacko

“If you are not in an armed conflict, … the consequences of her view is that the president is a serial killer. You have literally hundreds and hundreds of acts of ordered killing of people that is not protected, not authorized by the law of armed conflict.”

The final word on this issue may not come from the courts. Both Wittes and Solis agreed that they would not want the courts making a decision – Solis said the judiciary should not decide the rules of military engagement, and Wittes said the diffusion of responsibility on targeting decisions would only bring the judiciary into disrepute.

But absent some change in Supreme Court precedent, this area of law will continue to develop inside the executive branch in secret, Wittes said.

“I think the likelihood that courts will stay out of this stuff, at least in the short term, is very substantial,” he said. “And so we have to imagine that this is going to develop as a matter of incremental and often secret executive branch internal guidance overseen by Congressional guidance.”

WASHINGTON — As more is learned about mental health issues faced by war fighters, it is likely that diminished capacity or insanity defenses could become more common in military trials and military leaders may be found at fault, according to experts speaking at the Military Reporters and Editors conference Friday.

Attorneys will still have to uphold the legal standard for that defense, said retired Cdr. Phil Cave, formerly a deputy director in the Navy’s Judge Advocate General’s office. For instance, having post traumatic stress disorder is not a good enough reason to plead insanity, Cave said. But sentencing could be more focused on mitigation, on what can be treated and how the person can be rehabilitated, he said.

Michael Navarre, special counsel in the Washington law firm Steptoe and Johnson, also noted that the diminished mental capacity defense is hard to support because people who join the military are presumed to be fit and ready for service.

Retired Lt. Col. Geoffrey Corn, who served as special assistant on law of war matters in the Army Judge Advocate General’s office, said during a discussion later in the conference that pounding on the chain of command is a classic military defense strategy. Because military commanders now have a better understanding on mental health issues, when a service member receives inadequate care and then commits a crime, lawyers are going to look back and ask why something wasn’t done, Corn said.

Panelists speculated on how these issues would weigh on the case of Maj. Nidal Hasan who is accused of killing 13 people in a shooting at the Fort Hood Army post in Texas last year.

Cave said Hasan’s case is unusual because of the extreme nature of the crime and likely will be treated as a capital murder case.

“Based on what I’ve read … he’s got a tough time operating an insanity defense.”

Michelle McCluer, executive director of the National Institute of Military Justice at American University’s Washington College of Law, encouraged reporters to keep an eye on the military commissions held at Guantanamo Bay.

She said someone from her organization tries to attend every military commission held at Guantanamo Bay because it is one of the few allowed to be an official observer. But even with that access, it is difficult to find out when case motions will be heard or commissions held and the logistical parameters of who they can talk to and when are always changing, she said.

“If you want to talk about transparency or the lack thereof, commissions are a great way to start,” she said.

The health needs of returning veterans are considerable – increased diagnosis of brain cancer, emphysema, traumatic brain injuries, depression and post-traumatic stress disorder.

Suicide among war fighters has become an often sought story, said Ami Neiberger-Miller, public affairs officer for the Tragedy Assistance Program for Survivors. She spoke on a panel about issues facing returning vets during the Military Reporters and Editors Conference in Washington. The Medill National Security Journalism Initiative and the National Institute of Military Justice at American University were co-sponsors.

When Neiberger-Miller started working with an organization for military families who had lost loved ones, she would get about three calls a week from people whose family members committed suicide. Now she deals with closer to 10 families a week.

Neiberger, whose brother was killed in combat in 2007, said families spend the first couple of years after the loss going on their own quest for information.

“People who have completed that process are often the people who can reflect the best on what led their loved one to that point – flaws in the system, symptoms or signs that were missed,” Neiberger-Miller said.

Steve Robinson, vice president for Veterans Affairs within Prudential, and Tim Embree, legislative associate for Iraq and Afghanistan Veterans of America, described employment obstacles faced by vets.

Recent unemployment numbers for the general population, while high, have been stable, Embree said, but unemployment among veterans has been getting worse.

“It’s a struggle to make the leap from military to civilian life,” Embree said.

Vets have to learn how to translate the valuable decision-making and leadership skills they learned in the military to the civilian workforce, he said.

Embree, a former Marine Corps reservist, said it is harder to get federal officials and legislators to put veterans on their agendas for employment, health care and education because they make up such a small portion of the constituency.

Robinson, who served in the Army for 20 years, noted that the public’s investment in military issues has also diminished since the 1940s. In World War II, 16 percent of the population was employed in some role that supported the war. It has decreased since then, from 6 percent during the Vietnam War to 3 percent during the Gulf War to less than 1 percent today.

“It’s not on people’s radar,” he said. “[Veterans] are bearing a burden that 99 percent of America doesn’t have to bear.”

WASHINGTON — As the U.S. warfighting focus shifts from Iraq to Afghanistan, the transition of the Iraqi government is still an important story to watch, said Nancy Youssef, chief Pentagon correspondent for McClatchy Newspapers at Friday’s Military Reporters and Editors conference.

“The United States may say the war in Iraq is over, but Iraqis know it is far from over. And they’re living it, everyday,” said Youssef, who frequently travels to Iraq and Afghanistan.
No one can be seen as a leader if they come in on the backs of Americans, she said. The formation of the government has to be more organic, and it may not come in the form of a democracy, she said.
Even Iraq’s constitution doesn’t feel like it belongs to the country; it seems like it was written in English and then translated, Youssef said.
“I don’t know how you can build a government on a document that doesn’t even feel like it came from that country,” she said.
Panelists also said questions remain about Afghanistan, such as if the special operations forces are putting enough pressure on the Taliban, to what degree the U.S. is willing to negotiate with the group and to what extent the Pakistan government will crack down on the Taliban.

F. Whitten Peters, who was secretary of the Air Force and principal deputy general counsel of the Department of Defense during the Clinton administration, said the U.S. military also must focus on funding. He said budget talks in the coming months will make for excellent political theater as the Pentagon prepares to reduce its $160 billion budget for contingency operations to $50 billion.

With a cost of $792,000 per soldier in Afghanistan, the Army would have to withdraw 100,000 troops from the region to meet the financial constraint, he said.

Other options would include cutting spending on weapons and equipment, Peters said, but these changes could remove the US from its position as a world class power, able to swiftly occupy areas all over the globe.

“It will soon be that case that we’re not doing to be able to do that,” he said.

Heather Somerville contributed to this report.

Of interest
Video archive of the panel
Podcast of the panel “The decision to engage on that issue was made; we wanted to provide press with as much context of what the Pentagon was doing in light of the uncertainty as we possibly could,” he said. But the White House, Congress and the courts will determine that policy so the Pentagon was not “in control” of that policy issue, Wilson said.

Wilson

Wilson (left) said that the Pentagon tries to provide knowledgeable sources to reporters, especially after adopting a new general rule of “know of what you speak” and “find out what you don’t know.”

Wilson, who has been head of the Defense Department’s office of public communications for less than a year, fielded most of the questions from an audience largely made up of reporters and journalism students. Other panelists included New York Times Pentagon correspondent Elisabeth Bumiller, retired Maj. Gen. Paul Eaton, who now works as an adviser to the National Security Network, and Maj. Kirk Luedeke, who worked with social media and bloggers for the Army in Baghdad.

Panelists, L-R: New York Times Pentagon correspondent Elisabeth Bumiller; Maj. Kirk Luedeke, a former executive officer from the Army Public Affairs Center; Assistant Secretary of Defense for Public Affairs Doug Wilson;, and retired Gen. Paul Eaton, who now works with the policy focused National Security Network. Staff Photo/Sarah Chacko

Bumiller pressed Wilson for a more definitive stance on when background briefings, in which speakers provide information to reporters but are not quoted by name or otherwise directly identified, will be used.

The panel also discussed the ramifications of classified military documents published by the website WikiLeaks. The site recently released thousands of U.S. military documents on Iraq and Afghanistan. “WikiLeaks is the template for arrogance, self-righteousness and naiveté,” Wilson said. Media outlets that saw the most recent documents in advance, including The New York Times, Qatar-based al-Jazeera and the Guardian in London, report that they show U.S. officials ignored numerous cases of abuses and torture inflicted on civilians by Iraqi soldiers. The documents also add hundreds of unknown civilian deaths to the war count.

Bumiller responded to Wilson’s claim that no public good came from the document dump by noting that while of the documents did not change the narrative of the war, they added more pertinent details to its historical record. Wilson mentioned repeatedly that WikiLeaks officials do not have the expertise to properly redact sensitive information. The documents released still have the potential of putting lives in danger, he said. “It’s a glaring example of how technology has outpaced law and policy,” he said.

Medill's Ellen Shearer, Bumuller

In his opening comments, Wilson said communication is not just integral to coverage of policy but the making and implementation of it. But there are some unintended consequences, Wilson said, pointing to WikiLeaks, as well as the Rolling Stone article that led to the firing of Gen. Stanley McChrystal and the news of abuses of Iraqi prisoners by Americans at the Abu Ghraib prison.

The lines between fact and opinion, reality and image are becoming blurred, he said, pointing to new pressures brought by the change in media technology. “Issues that we never thought we’d have to deal with before, we’re all dealing with, oftentimes without guidance or precedence,” he said.

CSPAN video archive of the panel.

Kelly Kennedy, who covers health and medical issues for the Military Times papers and is also the author of the recently released book “They Fought for Each Other: The Triumph and Tragedy of the Hardest Hit Unit in Iraq,” offers some logistical tips for covering the military and war.

• Talk to someone who has been there recently.
• Prepare for cold showers, laundry done in sinks and very little, if any, privacy.
• Know which unit you want to go with and what its mission is. Talk to someone in that unit and the unit’s public affairs officer. If you don’t have things planned, don’t be surprised if you get overlooked.
• Prepare mentally. Kennedy said parts of her recent trip with a medical evacuation unit where like scenes in a horror film. Have a support system set up there and for when you return, to deal with what you’ve been through. “It’s not stuff you’re used to seeing.”

Kennedy gave her tips following a Medill/Military Reporters and Editors National Security breakfast briefing at the National Press Club in Washiington, DC on Oct. 15.

Paul Chambers, a 26-year-old British citizen, was convicted of sending a “menacing electronic communication” on Twitter that said he would blow up an airport.

As reported by the AP and in his own op-ed piece, Chambers, frustrated by heavy snowfall that was grounding flights in January, posted this message: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!”

Catherine Crump, staff attorney for the American Civil Liberties Union, assured me in an e-mail that hyperbolic speech in the United States is constitutionally protected, with a narrow exception for speech that is “truly threatening.”

“The rest of us should breathe a sigh of relief that we can still blow off steam without running afoul of any laws,” Crump said in her e-mail. “It’s probably best not to do so in an airport security line, however, unless you want to endure hours of extra questioning and the possibility of missing your flight.”

Even Chambers admits the tweet was “ill-advised.” But what concerns me is where the line of “truly threatening” is drawn.

Some who side with the authorities on this issue equate Chambers’ comment to falsely shouting “Fire!” in a crowded theater, which is an exception to the U.S. Constitution’s free speech amendment upheld by the Supreme Court. And maybe if Chambers had made his comment aloud, in the airport, that could be a practical argument. But Chambers made his remark away from the airport, into the vacuum of cyberspace, and there was no reasonable suspicion that he intended to follow through on the statement. Was it really worth arresting him at work a month later, imprisoning him, and putting him and taxpayers through a trial?

“Like having a bad day at work and stating that you could murder your boss, I didn’t even think about whether it would be taken seriously,” he wrote.

And it wasn’t immediately taken seriously.

According to The Times in London and other UK publications, Chambers’ Twitter followers weren’t alarmed by the tweet and neither was the airport’s head of security.

“He was told about the cursory, curse-filled message by an off-duty airport manager who happened to come across it a few days after Chambers posted it in early January,” Nathalie Rothschild reports on spiked-online.com. “Nevertheless, the security head, who graded the threat level of the message as ‘non-credible’ and decided not to disrupt airport operations, was obliged to alert the police.”

So the airport wouldn’t have even cared about this posting and apparently neither did any of the people who received Chambers’ tweet.

Shane Richmond, who writes about media and technology for UK Telegraph Media Group, sums up my thoughts on how this interference from law enforcement could easily extend beyond posts that include the word “bomb”:

“As I said – stupid and not funny. But the courts are going to be very busy if they attempt to prosecute anyone who says anything on Twitter that could be considered threatening. During the election campaign, for example, I saw numerous tweets from people saying that they wanted to kill or assault this or that politician or commentator. A quick search of Twitter shows people ‘planning’ to kill cats, dogs, school friends, random celebrities and themselves. Should I call the cops?”

Orayb Aref Najjar, an associate journalism professor at Northern Illinois University who specializes in cyber-communities and freedom of the press, said in an e-mail that social networking users have to consider the post-9/11 environment before they post comments.

“9/11 has really messed up American life in more ways than Bin Laden ever thought possible,” she said. “The fear that prevails has led to the death of irony, humor and exaggeration. Given this atmosphere, people have to be careful about making any seemingly threatening remarks because there is no real privacy on Facebook or Twitter.”

Najjar said she personally would have arrested Chambers for stupidity. But the real response by law enforcement may have been a bit hasty as well, she said.

“No official wants to be responsible for ignoring real or imagined terrorists,” she said in the e-mail. “The problem with this picture is that officials go after the silly stuff, but miss the big dangerous stuff.

“I mean, when someone’s father comes to you and says, ‘I am afraid my son is up to no good’ that is something you should not ignore,” she said, referring to the Christmas Day bomber whose father approached U.S. authorities with concerns about his son. “But when someone makes a silly remark, examine the context before freaking out.”

That doesn’t include a resolution presented this year by Illinois Congressman Daniel Lipinski to promote education of future cybersecurity specialists, the expansion of research and partnerships between universities and government agencies, and a standard setting process for “interconnectivity, identification and communication.”

John Veysey, Lipinski’s senior legislative assistant, said this is a typical number of bills for any given area of interest in Congress.

“But this is not a typical issue,” Veysey said. “If you define cybersecurity in the broadest of terms, it impacts so many things, so many aspects of our country, our economy and of the federal government – everything from defense to libraries and universities.”

That results in a lot of interested committees, people, and stakeholders. While it is challenging to negotiate with all those parties, many of the bills are moving through Congress, including the Cybersecurity Act (SB 773) being proposed by U.S. Sens. Jay Rockefeller, D-W.V., and Olympia Snowe, R-Maine, both of whom are members of the Senate Commerce and Intelligence committees.

They wrote in the Wall Street Journal that this proposed legislation would create a partnership between the government and private companies. The act would also create the position of a national adviser to bring government and private business together on this front and provides for “unprecedented information sharing.”

“From where I sit, the fact that Sen. Rockafeller and Sen. Snowe passed their bill out of committee … that represented a real step forward,” Veysey said. “I think we’re moving forward, and that’s good. … Certainly reflects the need and the long history of working on this issue with not a lot of progress. Many years.”

Cybersecurity research is one of the areas in greatest need of exploration, Veysey said.

“Agencies that are setting research agendas will need to listen to the private sector to hear what their needs are and what their priorities are and we’ll be able to influence that process,” he said.

Agencies like the NSA, National Science Foundation, and NIST are doing research, but they are not looking into the “human dimension aspects of these problems,” such as how people interact with computers and communication devices, and paying attention to psychological and sociological problems, Veysey said.

The government is full of agencies with some connection to technology, security and intelligence, such as the Joint Interagency Cyber Task Force for the Office of the Director of National Intelligence, an ambiguous name I came across in the Congressional Research Service report.

But apparently some of their research isn’t being shared: “It should be noted that some of the apparent gaps discovered [in response to cybersecurity challenges] may actually be addressed by existing classified programs, which cannot be discussed in this unclassified report.”

Among the “common themes of recent cybersecurity initiatives” discussed in the report is “privacy and civil liberties – maintaining privacy and freedom of speech protections on the Internet while devising cybersecurity procedures” as well as “outreach, collaboration and policy formation – working across government and with the private sector to share information on threats and other data, and to develop shared approaches to securing cyberspace.”

Jay Stanley, public education director of ACLU’s Technology and Liberty Program, said the government can help protect the private sector with its cybersecurity issues but the public needs to be conscious of the pitfalls and ensure that they are not allowing the creation of something that will give corporations more power than they should have.

People often willingly give out their personal information but they also do it begrudgingly and without complete awareness of “the extent to which the information they give to one institution is stored, used, traded and combined,” he said.

Over time, it is becoming more apparent how that information is being used.

Orayb Aref Najjar, a journalism professor at Northern Illinois University who specializes in cyber-communities and freedom of the press, said in an email that U.S. companies have a legitimate interest in protecting their trade secrets.

But she would like to know whether the government is approaching companies or if company officials are seeking federal assistance, why these companies don’t have the expertise to secure themselves, and how their technical information is stored.

“I would have to know whether getting the help of the government in this case would allow NSA access to citizen searches,” Najjar wrote. “If the NSA has access to the Google code, would it also have access to our accounts and our searches? Could the NSA keep its hands out of direct access to the searches cookie jar?”

Najjar said surveillance by the government or private contractors is unnecessary.
“If Wall Street can police itself, the cyber world can do that too,” she wrote. “People on social networks may be asked to report suspicious activity.”

Proposed legislation that involves identifying and assessing international and global risks is especially worrisome to Najjar, who is concerned that foreign countries’ anti-terrorism laws will extend beyond the scope of finding criminals.

“My research suggests that the laws were sometimes applied to the non-violent enemies of the regimes in questions, rather than only against ‘terrorists,’” she said in her email. “I see a similar problem developing in which enhanced abilities to control a country’s cyber space would allow the country to crack down on bloggers and dissenters who try to evade its reach. So the intent of this law, safety, is good, but I fear that it would be applied to the wrong thing.”

Stanley with the ACLU says the idea that security comes at the sacrifice of privacy is “overblown.”

“Privacy and security are not in conflict,” he said.

Many of the intrusions on privacy are also bad for security, Stanley said.

In the industrial age, people think of everything in terms of machines; they see everything as an information problem, he said. But searching databases for the metaphorical needle in a haystack is an ineffective way to solve terrorism.

“Terrorist attacks are not stopped that way,” he said.

The best approach to security is doing the legwork, chasing down leads, “good, old fashioned investigation,” he said.

Perhaps it’s the articles earlier this month in the New York Times and MarketingVOX about how coupons can be traced directly back to the person who used it. Or a story that Orayb Aref Najjar, a journalism professor at Northern Illinois University who specializes in cyber-communities and freedom of the press, said she recently read about how the information collected from a person is then interpreted and can be used against them.

“If you buy certain products … that means you are likely to pay your mortgage on time,” Najjar said in an e-mail. “So the information they collect about you is not neutral, and is not there to serve you … but to be bundled and sold …

“What worries me most is not the information gathered (governments always do that), but the extent and volume of information gathered and collated from different sources, and the way it may be interpreted. I worry about the competency of the interpreters. The issue becomes more crucial when it comes to information gathered internationally.”

Jay Stanley, public education director of ACLU’s Technology and Liberty Program, said Americans do not understand “the extent to which the information they give to one institution is stored, used, traded and combined.”

Yes, people willingly give out information to online stores and social networks. But some people also give out information unwillingly, Stanley said. They would rather not share their Social Security number and other personal information just because it’s required on some form.

Either way, Stanley says the consequences of that information sharing is mostly invisible to the individual. But over time, it is becoming more apparent how that information is being used, he said.

The ACLU is part of the Digital Due Process coalition, along with Google, AT&T, Microsoft, and technology and privacy groups, to get Congress to update the Electronic Communications Privacy Act. Though the changes are not expected to drastically affect information gathering for the purposes of national security and marketing, Stanley said it is a stop toward making sure there is a proper process in place to broadly protect online privacy.

“With changes in technology, the substantive privacy we’ve always enjoyed is rapidly eroding,” Stanley said.

Last week, the site grabbed front pages in The New York Times, the Washington Post and Christian Science Monitor for releasing a video of a U.S. Army attack in Iraq that left 12 people dead, including two journalists.

By Friday night, six days after its release, the video had received 5.2 million views on YouTube.

Much of the media attention surrounded the mysterious nature of the site. Its sources are anonymous and its server is based in Sweden, where journalists do not have to disclose their sources. The founder of the site doesn’t give out his age and has been described as nomadic.

According to media sources, the site isn’t picky in what it publishes. It has posted everything from “Sarah Palin’s hacked emails and Wesley Snipes’ tax returns,” to “fraternity initiation manuals and a trove of secret Scientology manuals,” according to a Mother Jones article.

“It raises a whole series of ethical and legal issues of use of information when you don’t know where it came from,” said Don Craven, general counsel to the Illinois Press Association.

In the case of the Iraq assault video, U.S. military officials have confirmed its authenticity. But the military organization could still consider the information stolen, Craven said.

That legal issue wouldn’t burden WikiLeaks, however, because the recipient of the material is not responsible for the leak, said University of Chicago law professor Geoffrey R. Stone.

The government’s only defense is to show that publishing the material will present the public with “clear and eminent danger of grave harm,” Stone said.

“There’s never been a case” where that defense has worked, he said.

“That doesn’t mean in theory there couldn’t be one,” he added.

The U.S. military certainly thinks the potential is there.

WikiLeaks released an Army Counterintelligence Center special report: “Wikileaks.org—An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?”

“Wikileaks.org … represents a potential force protection, counterintelligence, operational security, and information security threat to the US Army,” the report states. “Such information could be of value to foreign intelligence and security services, foreign military forces, foreign insurgents, and foreign terrorist groups for collecting information or for planning attacks against US force, both within the United States and abroad.”

Stone said the closest thus far that federal courts have come to censoring information was The Progressive magazine’s 1979 article on how to build a Hydrogen bomb. The government dropped its case within a year; the information had spread so widely, the protection issue was moot.

When The Progressive did publish the article it said this about its decision to fight the government’s concerns of national security:

“In a time when military policy is closely linked with technological capabilities, debate about military policy that uses technical information is part of a vigorous system of freedom of expression under the First Amendment. The Government’s tendency to hide widely known technical processes under a mantle of secrecy in the national interest and prevent press commentary on these matters can only result in stifling debate, not in protecting the physical security of Americans.”

The government could probably argue that information which identified by name current government agents doing counterintelligence in Iran would pose a valid threat to both operations and American lives, Stone said.

But something like a report on the vulnerabilities of nuclear power plants holds some value to the public, he said.

Government officials could argue that the information could invite terrorist attacks by exposing weaknesses, Stone said. However, people also have the right to know that they are living near a vulnerable sight and could petition their leaders to fix the problems, he added.

Ultimately, what information makes it onto sites like WikiLeaks is up to the government, Stone said.

“In one sense, we give government more power than it could have, as long as it keeps it secret,” he said.

The government’s failure to keep their secrets to itself is no excuse to allow it to come back and suppress leaked information.

“You can use the fact of the leak to prove that it’s not such a big deal,” Stone said.