Lawfare Today â•¦ and Tomorrow

XII

Lawfare Today . . . and Tomorrow

Charles J. Dunlap, Jr.*

AprincipalstrategictacticoftheTaliban...iseitherprovokingorexploiting

civilian casualties.

Secretary of Defense Robert Gates

I. Introduction

lthough he does not use the term “lawfare,” Secretary Gates’ observation

reflects what is in reality one of the most common iterations of lawfare in

today’s conflicts. Specifically, the Taliban are aiming to achieve a particular military

effect, that is, the neutralization of US and allied technical superiority, especially

with respect to airpower. To do so they are, as Secretary Gates indicates, creating

the perception of violations of one of the fundamental norms of the law of armed

conflict (LOAC), that is, the distinction between combatants and civilians.

While “provoking or exploiting civilian casualties” is clearly a type of lawfare, it

is by no means its only form. Although the definition has evolved somewhat since

its modern interpretation was introduced in 2001,

today I define it as “the strategy

of using—or misusing—law as a substitute for traditional military means to

achieve a warfighting objective.”

As such, it is ideologically neutral, that is, it is best conceptualized much as a

weapon that can be wielded by either side in a belligerency. In fact, many uses of

legal “weapons” and methodologies avoid the need to resort to physical violence

* Major General, US Air Force (Ret.); Visiting Professor of the Practice of Law and Associate Di-

rector, Center on Law, Ethics, and National Security, Duke University School of Law.

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The opinions shared in this paper are those of the author and do not necessarily reflect the views and opinions

of the U.S. Naval War College, the Dept. of the Navy, or Dept. of Defense.

International Law Studies - Volume 87

International Law and the Changing Character of War

Raul A. “Pete” Pedrozo and Daria P. Wollschlaeger (Editors)

and other more deadly means. This is one reason, for example, that the United

States and other nations seek to use sanctions before resorting to the use of force

whenever possible.

Another illustration would be the use of a contract “weapon” during the early

part of Operation Enduring Freedom to purchase commercially available satellite

imagery of Afghanistan.

This approach was equally or, perhaps, more effective than

other more traditional military means might have been in ensuring the imagery did

not fall into hostile hands. Additionally, most experts consider the re-establishment

of the rule of law as an indispensable element of counterinsurgency (COIN) strategy.

Finally, few debate that the use of legal processes to deconstruct terrorist financing

is an extraordinarily important part of countering violent extremists.

In short, there are many uses of what might be called “lawfare” that serve to re-

duce the destructiveness of conflicts, and therefore further one of the fundamental

purposes of the law of war. All of that said, others have given the concept a rather

different meaning. Some couch it in terms of what is alleged to be the “growing use

of international law claims, usually factually or legally meritless, as a tool of war.”

Similarly, the privately run Lawfare Project openly acknowledges it concentrates

“on the negative manipulation of international and national human rights laws”

for purposes, it asserts, that are “other than, or contrary to, that for which those

laws were originally enacted.”

Some go even further. In 2007 respected lawyer-writer Scott Horton expressed

concern that unnamed “lawfare theorists” purportedly consider that attorneys

who aggressively use the courts in the representation of Guantanamo detainees

and other terrorism-related matters “might as well be terrorists themselves.”

More recently, much discussion of lawfare has centered on legal maneuvering as-

sociated with the Israeli-Palestinian confrontation. For example, some individuals

and organizations see lawfare as “the latest manifestation in the sixty-year cam-

paign to isolate the State of Israel.”

In any event, these sometimes hyperbolic permutations on lawfare theories are

not that espoused by this article. Among other things, it is certainly not the view of

this writer that any party legitimately using the courts is doing anything improper.

Instead, this brief article will focus more narrowly on the role of law in contempo-

rary conflicts, principally that in Afghanistan.

It is true, as Secretary Gates’ comment suggests, that lawfare in the Afghan

context has typically taken the form of the manipulation of civilian casualties to

make it appear that US and allied forces have somehow violated legal or ethical

norms. Thus, it could be said that lawfare itself is an asymmetrical form of war-

fare, one that is value-based and that seeks to outflank, so to speak, conventional

military means.

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Regardless, from this writer’s perspective, the use of the term “lawfare” was al-

ways intended as a means of encapsulating for non-lawyer, military audiences the

meaning of law in today’s war. It was not intended to fit neatly into some political

science construct. Rather, the sobriquet of “lawfare” was meant to impress upon

military audiences and other non-lawyers that law is more than just a legal and

moral imperative; it is a practical and pragmatic imperative intimately associated

with mission success. In that respect, the growth of the term seems to have had

some positive results.

II. Lawfare Today: Airpower and Civilian Casualties

Perhapsnoaspectofwhatthiswriterwould characterize as lawfare is more promi-

nent than the restrictive rules of engagement imposed upon allied forces in Af-

ghanistaninanefforttowin“heartsandminds” by limiting civilian casualties.

These restrictions go far beyond what LOAC requires, and are a classic example of

efforts to “improve upon” LOAC via policymaking that insufficiently appreciates

unintended consequences that can have, at the end of the day, decidedly counter-

productive results. As a noncommissioned officer explained to columnist George

Will in June of 2010, the rules of engagement in Afghanistan are “too prohibitive

for coalition forces to achieve sustained tactical success.”

And other troops fight-

ing there have raised similar concerns.

Airpower in particular has been cast—wrongly in my view—as a villain with re-

spect to the civilian casualty issue. The Army and Marine Corps’ COIN Field Man-

ual (FM) 3-24,

for example, discourages the use of the air weapon by claiming

that “[b]ombing, even with the most precise weapons, can cause unintended civil-

ian casualties.”

Of course, any weapon “can” cause civilian casualties,

so it is not

clear why air-delivered munitions should be singled out for “exceptional care,” as

FM 3-24 demands.

More important, the data show that ground operations can be vastly more dan-

gerous to civilians than airstrikes. A study by the New England Journal of Medicine

found that fewer than 5 percent of civilian casualties in Iraq during the 2003–8 time

frameweretheresultofairstrikes.

Regarding Afghanistan, a 2008 Human Rights

Watch study of airstrikes found that it was the presence of troops on the ground

that created the most risk to civilians, as the “vast majority of known civilian

deaths” came from airstrikes called in by ground forces under insurgent attack.

Even more recently, a National Bureau of Economic Research study found that

only 6 percent of the civilian deaths attributed to International Security Assistance

Force (ISAF) were the result of airstrikes. In fact, traffic accidents with ISAF vehicles

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were two and a half times more likely to be the cause of the deaths of Afghan

women and children than were airstrikes.

Nevertheless, ground commanders have insisted that civilian deaths could be

curtailed with more troops. Army Brigadier General Michael Tucker suggested as

much when he told USA Today in late 2008 that “[i]f we got more boots on the

ground, we would not have to rely as much on [airstrikes].”

Unsurprisingly,

therefore, when General Stanley McChrystal assumed command in Afghanistan in

June of 2009, he immediately issued orders that significantly restricted the use of the

air weapon,

and shortly thereafter called for a “surge” of mainly ground forces.

It should be said that even before General McChrystal’s orders the coalition’s

ability to use the air weapon was complicated by NATO’s own public pro-

nouncements that distorted the understanding of the law of war, with tragic con-

sequences.

Specifically, in June of 2007 NATO declared that its forces “would not

fire on positions if it knew there were civilians nearby.”

A year later its statement

was even more egregious, when a NATO spokesman preened that “[i]f there is the

likelihood of even one civilian casualty, we will not strike, not even if we think

OsamabinLadenisdownthere.”

This statement was not only insensitive to Americans cognizant of the horror of

the bin Laden–inspired 9/11 attacks; it also works counter to the basic purposes of

LOAC. Of course, zero casualties are not what LOAC requires; rather, it only de-

mands that they not be excessive in relation to the military advantage anticipated.

The law is this way for good reason: if “zero casualties” were the standard, it would

invite adversaries to keep themselves in the company of civilians to create a sanctu-

ary from attack. The Taliban heard NATO’s invitation and did exactly that.

In any event, if the intent of the June 2009 airpower restrictions was to save civil-

ian lives, it did not succeed. Although civilian deaths from the actions of NATO

forces did decline,

overall civilian deaths in Afghanistan nevertheless reached an

all-time high in 2009.

And civilian deaths soared 31 percent in 2010 over 2009’s

record-breaking figures. I would suggest that an obvious (albeit unintended) result

of forgoing opportunities to kill extremists via airstrikes is that they live another

day to kill more innocents.

This may be why the UN reported on June 19, 2010—about a year after General

McChrystal’s order—that security in Afghanistan has “deteriorated markedly” in

recent months.

Moreover, in terms of “winning hearts and minds,” analyst Lara M.

Dadkhah raises the interesting point worth pondering in a February 2010 New

York Times op-ed that the “premise that dead civilians are harmful to the conduct

of the war [is mistaken, as] no past war has ever supplied compelling proof of that

claim.”

That is proving to be the case in Afghanistan.

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To his credit, General McChrystal did admit in December 2009 that there was

“much about Afghanistan that [he] did not fully understand.”

In that respect, his

assumption that seems to underlie his order—that civilian deaths inevitably work

against the perpetrators’ cause—may be one of the things he did not correctly un-

derstand. For example, Ben Arnoldy of the Christian Science Monitor reports that

the Taliban—not NATO forces—were responsible for the majority of civilian

deaths in 2009.

Even though those deaths reflect a 41 percent increase over 2008,

Arnoldy says that “there is little indication these Taliban indiscretions have back-

fired on the movement so far.”

Consider as well the Afghan reaction in September of 2009 when General

McChrystal sought to apologize for the bombing of a hijacked oil tanker near

Kunduz that allegedly killed seventy-two Afghans. The Washington Post reports

that when General McChrystal began to apologize, a local “council chairman,

Ahmadullah Wardak, cut him off” with demands for a tougher approach.

“McChrystal,” the Post recounts, “seemed to be caught off guard [by Wardak’s re-

proof]” as Wardak asserted that the allies have been “too nice to the thugs.”

Jeremy Shapiro, a Brookings Institution scholar who served on a civilian assess-

ment team for General McChrystal, analyzes Wardak’s remarks as saying that if the

coalition is going to be a genuine provider of security for the people, that means:

“[Y]ou’ll do what is necessary to establish control, and the very attention that the

coalition pays to civilian casualties actually creates the impression among many Af-

ghans that [coalition forces] in fact are not interested in establishing control and

not interested in being the provider of security.”

Shapiro concedes that the

Afghan government has “highlighted” the civilian casualty issue but argues that it

is doing so “because it serves to demonstrate [its] independence from the coalition

and gives [it] leverage with the coalition.”

To his surprise, Shapiro says, local of-

ficials in his experience “tend actually not to be too concerned” with the civilian

casualties.

In short, he concludes that while the civilian casualty issue “clearly

resonatesverystrongly[intheUnitedStates]andinEurope...[itis]notclear

thatAfghansactuallyseethisasakeyissue.”

A Gallup poll released in February 2010 provides further data as to Afghan per-

ceptions. Although the question of airstrikes was not directly addressed, it did

show that beginning in June of 2009 (coinciding with the new restrictions on

airpower) through the end of the survey period in late 2009, Afghans’ approval of

US leadership in Afghanistan declined, as did their support for additional troops.

Obviously, the restrictions on airpower did not have the hoped-for “hearts and

minds” effect. Further complicating the issue is the fact that, like those of Afghan

civilians, coalition casualties also reached an all-time high in 2009.

And these dis-

turbing casualty trends are continuing into 2010; by the end of September the

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number of coalition casualties exceeded the record-breaking high of 2009.

Thus,

however well-intentioned the airpower restrictions may have been, evidence of

their efficacy is not apparent.

The deleterious effect on operations is unmistakable, as the deteriorating secu-

rity situation noted in the UN report above attests.

AtonetimeTalibanfighters

cowered at American airpower.

Today, however, the Air Force Times reports that

because of the new directive, the Taliban “no longer run and hide when they see a

fighter jet overhead.”

The Times quotes an Air Force pilot as expressing frustra-

tion “when you can see them shooting at our guys” and are obliged not to attack.

The pilot laments that the enemy knows that “we are not allowed to engage in cer-

tain situations.”

At the same time airpower technology continues to develop even more discrete

and effective ways to hunt the terrorists without the need to put thousands of

young Americans in harm’s way. According to the Washington Post,“anewgenera-

tion of small but highly accurate missiles” designed to limit collateral damage is be-

ing fielded for employment on remotely manned vehicles.

Such technology, the

Post reports, along with better intelligence, has caused the “clamor over [drone]

strikes [to have] died down considerably over the last year.”

While airpower alone is not—and can never be—the whole solution to today’s

wars, rethinking it in the context of what today’s technology can provide might

produce opportunities to fulfill the President’s intent of protecting Americans

against terrorist attack in a less resource-demanding way,

and at the same time

serve the interests of international humanitarian law’s effort to ameliorate the hor-

ror of war, and especially its impact on innocent civilians.

III. Lawfare Tomorrow: The Emerging Issues

The increasing controversy concerning “drones,” or, more accurately, remotely pi-

loted vehicles (RPVs), is raising some interesting legal and policy issues with

lawfare implications. By all reports, these weapon systems are extremely effective,

particularly in eroding enemy leadership cadres. Yet a variety of objections have

been offered as to their use.

Some of the attacks border on the absurd, and are reminiscent of medieval legal

debates. For example, in A.D. 1139 Pope Innocent II and the Second Lateran

Councilcondemnedthemissilewarfarethat was devastating Europe’s knighted ar-

istocracy by calling slingers and archers “dastards” that are practicing a “deadly

and God-detested art” with their stones and arrows.

Fast-forward to 2009, and

we find former Australian Army officer David Kilcullen condemning the missile

warfare that is devastating the terrorist aristocracy of the Taliban and Al Qaeda by

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telling Congress to “call off the drones” in part because the militants view aerial at-

tacksas“cowardlyandweak.”

It is not clear why anyone should be concerned about the sensibilities of Taliban

and Al Qaeda militants. Although Kilcullen and others seem to view the militants

as courageous fighters seeking man-to-man fights, their use of indiscriminate im-

provised explosive devices—which grew 94 percent over the past year

—plainly

shows that they embrace remotely operated systems (albeit on the ground and not

in the air). In addition, reports indicate that the Taliban are not only intermingling

with civilians in the hopes of being shielded; media reports also say they are engag-

ing in the vile practice of buying children to use as suicide bombers.

Almost as problematic as the “cowardly” objections to advanced warfighting

systems is the emergence of the “targeted killings” debate. This has become some-

thing of a cottage industry within the human rights establishment. Many commen-

tators seem to be frantically searching for ways to find the use of the highly effective

RPVs somehow improper. A good example is the recent report of the UN’s Special

Rapporteur on Extrajudicial, Summary or Arbitrary Executions.

One of the most disappointing aspects of the report was the allegation that RPV

operators might adopt a “Playstation mentality.” This wholly speculative and un-

proven allegation questioning the professionalism of RPV operators is but one il-

lustration of the report’s deficiencies. Moreover, the illogical suggestion that

military or intelligence professionals would prefer to kill a terrorist as opposed to

capturing and interrogating him is yet another indication of the report’s flaws.

Yet there are issues associated with RPVs. For example, in a recent issue of

Armed Forces Journal, Peter Singer of the Brookings Institution raises issues about

the status of RPV operators by questioning the propriety of the operation of the

aircraft by other than military personnel.

Perhaps as interesting—or more so—is

the question of fully autonomous RPVs or other weapon systems.

As a practical matter, the current generation of RPVs generally requires a very

permissive air environment to survive. To use the systems in contested airspace

presents a variety of daunting technical challenges that must be overcome, not the

least of which is the maintenance of continuous contact between the vehicle and its

distant operator. Many experts believe thatinthefuturethevehiclewouldhaveto

operate autonomously, at least part of the time.

The world has not, however, been receptive to autonomous weapons systems.

Exhibit “A” would be the near-universal ban on landmines we have today. When

one examines the history of the ban, it becomes clear that emotional arguments

predominated as opposed to tempered, rational discussions of how the weapons

mightbeusedinwaysthatactuallyreducethe destructiveness of war. Regardless,

the experience of the landmine campaign may be something of a portent for

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policymakers to consider, as science will inevitably provide the opportunity for the

development of a whole family of partlyorevenfullyautonomousweaponssys-

tems for use in air, land, sea and cyber domains.

IV. Concluding Observations

Any discussion of lawfare seems to invite conclusions that “the law” is somehow an

impediment to successfully warfighting, especially in an era of irregular warfare

waged by non-State actors.

It is true, as mentioned earlier in this article, that there

certainly will always be those who will abuse the law for perverse purposes. That

should not, however, suggest abandoning the law. Consider the thoughtful obser-

vations of Lawrence Siskind in response to the “lawfare” strategies of Hamas lev-

eled at Israel:

When al-Qaeda terrorists used jet planes as weapons to crash into skyscrapers in 2001,

the West did not abandon its airports and office buildings. Instead, it found ways to

cope with danger without making fundamental changes to its business life. The fact

that Hamas terrorists are cynically using another Western institution, the rule of law, as

a weapon today does not mean that Western nations should abandon it. Instead, they

must learn to adjust and cope.

In the twenty-first century we should expect to see further developments of

lawfare. We may not like all of its iterations, but we should never forget that legal

battles are always preferable to real battles, and modern democracies are well-

suited to wage—and win—legal “wars.”

Notes

1. Press Conference, Secretary of Defense Robert Gates & Chairman, Joint Chiefs of Staff

Michael Mullen, Leadership Changes in Afghanistan (transcript), D

EFENSELINK (May 11,

2009), http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=4424.

2. Charles J. Dunlap, Jr., Law and Military Interventions: Preserving Humanitarian Values in

21st Century Conflicts (Carr Center for Human Rights, John F. Kennedy School of Government,

Harvard University, Working Paper, 2001), available at http://www.ksg.harvard.edu/cchrp/

Web%20Working%20Papers/Use%20of%20Force/Dunlap2001.pdf (last visited Jan. 21, 2011).

3. The author originally cast the definition to say “achieve an operational objective” but

changed the wording so as to preclude an interpretation that was linked to a particular level of

war. Charles J. Dunlap, Jr., Lawfare Today,Y

ALE JOURNAL OF INTERNATIONAL AFFAIRS, Winter

2008, at 146, available at http://www.nimj.org/documents/Lawfare%20Today.pdf.

4. See John J. Lumpkin, Military Buys Exclusive Rights to Space Imaging’s Pictures of Afghanistan

War Zone,A

SSOCIATED PRESS, Oct. 15, 2001, available at http://www.fas.org/sgp/news/2001/10/

ap101501.html.

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5. David B. Rivkin, Jr. & Lee A. Casey, Lawfare,WALL STREET JOURNAL, Feb. 23, 2007, at

A11, available at http://online.wsj.com/article/SB117220137149816987.html (emphasis added).

6. What is Lawfare?,T

HE LAWFARE PROJECT, available at http://www.thelawfareproject.org

(last visited Jan. 21, 2011).

7. Scott Horton, State of exception: Bush’s war on the rule of law,H

ARPER’S MAGAZINE, July

2007, at 74, available at http://www.harpers.org/archive/2007/07/0081595.

8. Lawrence J. Siskind, Lawfare,T

HE AMERICAN THINKER (Feb. 7, 2010), http://

www.americanthinker.com/2010/02/lawfare_1.html.

9. George Will, Editorial, Futility in Afghanistan; An NCO fires off a round of illumination,

ASHINGTON POST, June 20, 2010, at A19.

10. Headquarters, Department of the Army & Headquarters, Marine Corps Combat Devel-

opment Command, FM 3-24/MCWP 3-33.5, Counterinsurgency (2006), available at http://

www.scribd.com/doc/9137276/US-Army-Field-Manual-FM-324-Counterinsurgency.

11. Id., app. E, para. E-5.

12. See, e.g., Afghan Official: Troops Killed Civilians, CNN.

COM (May 14, 2010), http://

afghanistan.blogs.cnn.com/2010/05/14/afghan-official-troops-killed-civilians/.

13. Madelyn Hsiao-Rei Hicks et al., The Weapons That Kill Civilians – Deaths of Children and

Noncombatants in Iraq, 2003–2008,N

EW ENGLAND JOURNAL OF MEDICINE, Apr. 16, 2009, at

1585, 1586, available at http://content.nejm.org/cgi/reprint/360/16/1585.pdf (emphasis added).

14. H

UMAN RIGHTS WATCH,“TROOPS IN CONTACT”: AIRSTRIKES AND CIVILIAN DEATHS

AFGHANISTAN 29 (2008), available at http://hrw.org/reports/2008/afghanistan0908/

afghanistan0908web.pdf.

15. Jim Michaels, Airstrikes in Afghanistan increase 31%, USA T

ODAY, Nov. 5, 2008, at 1,

available at http://www.usatoday.com/news/world/2008-11-05-afghanstrikes_N.htm.

16. Dexter Filkins, U.S. Toughens Airstrike Policy in Afghanistan,N

EW YORK TIMES, June 22,

2009, at A1.

17. The author discussed this issue in Could Airstrikes Save Lives?,W

ASHINGTON POST, Oct.

22, 2010, at A25.

18. The North Atlantic Treaty Organization nations are the principal but not exclusive con-

tributors of foreign forces for the International Security Assistance Force in Afghanistan.

19. Noor Khan, US Coalition Airstrikes Kill, Wound Civilians in Southern Afghanistan, Offi-

cial Says,A

SSOCIATED PRESS,INTERNATIONAL HERALD TRIBUNE, June 30, 2007 (quoting Major

John Thomas, spokesman for NATO’s International Security Assistance Force), available at

http://www.iht.com/articles/ap/2007/06/30/asia/AS-GEN-Afghan-Violence.php.

20. Pamela Constable, NATO Hopes to Undercut Taliban with Surge of Projects,

ASHINGTON POST, Sept. 27, 2008, at A12 (quoting Brigadier General Richard Blanchette, chief

spokesman for NATO forces), available at http://www.washingtonpost.com/wp-dyn/content/

article/2008/09/26/AR2008092603452_pf.html.

21. See, e.g., Inside US Hub for Air Strikes, BBC A

MERICA, Nov. 29, 2008 (quoting Colonel

Eric Holdaway as saying, “[S]ome of our enemies have clearly located themselves amongst civil-

ians”), available at http://news.bbc.co.uk/2/hi/south_asia/7755969.stm.

22. “Pro-government forces reduced civilian killings by 28 percent.” See Ben Arnoldy, His-

tory sides with Taliban, for now, C

HRISTIAN SCIENCE MONITOR, May 10, 2010, at 9.

23. See Dexter Filkins, ’09 Deadliest Year for Afghans, U.N. Says,N

EW YORK TIMES, Jan. 14,

2010, at A6, available at http://www.nytimes.com/2010/01/14/world/asia/14kabul.html.

24. See supra note 17.

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25. Ernesto Londono, U.N. Report on Afghanistan Notes Surge in Attacks and Killings,

ASHINGTON POST, June 20, 2010, at A9, available at http://www.washingtonpost.com/wp-dyn/

content/article/2010/06/19/AR2010061902715.html.

26. See Lara M. Dadkhah, Op-Ed, Empty Skies Over Afghanistan,N

EW YORK TIMES, Feb. 18,

2010, at A27, available at http://www.nytimes.com/2010/02/18/opinion/18dadkhah.html.

27. Afghanistan: The Results of the Strategic Review, Part II: Hearing Before the House Armed

Services Committee, 111th Cong. 61 (2009) (statement of General Stanley R. McChrystal), avail-

able at http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg57832/pdf/CHRG-111hhrg57832.pdf.

28. Arnoldy, supra note 22.

29. Id.

30. Rajiv Chandrasekaran, Sole Informant Guided Decision On Afghan Strike,W

ASHINGTON

POST, Sept. 6, 2009, at A01, available at http://www.washingtonpost.com/wp-dyn/content/article/

2009/09/05/AR2009090502832.html.

31. Id.

32. Jeremy Shapiro, Remarks at the Proceedings of the Afghanistan and Pakistan Index

and Assessments Project at the Brookings Institution 33 (Oct. 5, 2009) (transcript available at

http://www.brookings.edu/~/media/Files/events/2009/1005_afghanistan_pakistan/20091005

_afghanistan_pakistan.pdf).

33. Id. at 32.

34. Id.

35. Id.

36. Julie Ray & Rajesh Srinivasan, Afghans More Skeptical of U.S. Leadership, Troops,G

ALLUP

(Feb. 3, 2010), available at http://www.gallup.com/poll/125537/afghans-skeptical-leadership

-troops-2009.aspx.

37. See Operation Enduring Freedom: Coalition Military Casualties by Year and Month,

ICASUALTIES.ORG, available at http://www.icasualties.org/OEF/ByMonth.aspx (last visited Dec.

2, 2010).

38. Id.

39. See Londono, supra note 25.

40. See, e.g., Rowan Scarborough, Pentagon Notebook: McPeak calls McCain too fat,

ASHINGTON TIMES, June 26, 2008, at B01 (quoting a Taliban commander as saying, “Tanks

and armor are not a big deal—the planes are the killers. I can handle everything but the jet fight-

ers.”), available at http://www.washtimes.com/news/2008/jun/26/pentagon-notebook-mcpeak

-calls-mccain-too-fat/?page=2.

41. Michael Hoffman, Looking Down in Frustration: McChrystal Order Limiting Afghan

Airstrikes Takes Punch Out of Pilots, A

IR FORCE TIMES, May 3, 2010, at 16.

42. Id.

43. Id.

44. Joby Warrick & Peter Finn, In Pakistan, CIA Refines Methods to Reduce Civilian Deaths,

ASHINGTON POST, Apr. 26, 2010, at A8.

45. Id.

46. Even critics concede that attacks on high-value targets—mainly by remotely piloted ve-

hicles but also by other means—can be extremely effective when properly calibrated and con-

ducted. See Mathew Frankel, Remarks at the Defense Challenges and Future Opportunities

Symposium, at the Brookings Institution 4–13 (Mar. 26, 2010) (transcript available at http://

www.brookings.edu/~/media/Files/events/2010/0326_defense_challenges/20100326_defense

_challenges_panel1.pdf).

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47. Jonah Goldberg, Crossbows & Suicide Bombers,NATIONAL REVIEW ONLINE (Aug. 10, 2001),

http://www.nationalreview.com/articles/204995/crossbows-suicide-bombers/jonah-goldberg.

48. Doyle McManus, U.S. Drone Attacks in Pakistan ‘Backfiring,’ Congress Told,

LAT

IMES.COM (May 3, 2009), http://www.latimes.com/news/opinion/commentary/la-oe

-mcmanus3-2009may03,0,7133284.column.

49. See Londono, supra note 25 (citing UN report).

50. Sara A. Carter, Taliban Buying Children to Serve as Suicide Bombers,W

ASHINGTON

TIMES, July 2, 2009, at 1.

51. See U.N. Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary

or arbitrary executions, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010) (Philip Alston), available at

http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf.

52. P.W. Singer, Double-Hatting Around the Law,A

RMED FORCES JOURNAL, June 2010, at

44, available at http://www.armedforcesjournal.com/2010/06/4605658. See also Gary Solis,

America’s unlawful combatants,W

ASHINGTON POST, March 12, 2010, at A17, available at http://

www.washingtonpost.com/wp-dyn/content/article/2010/03/11/AR2010031103653.html.

53. The Department of Defense defines “irregular warfare” as a “violent struggle among

state and non-state actors for legitimacy and influence over the relevant population(s). Irregular

warfare favors indirect and asymmetric approaches, though it may employ the full range of mili-

tary and other capacities, in order to erode an adversary’s power, influence, and will.” See Chair-

man of the Joint Chiefs of Staff, Joint Publication 1-02, Dictionary of Military and Associated

Terms (Nov. 12, 2010, as amended through Dec. 31, 2010), available at http://www.dtic.mil/

doctrine/dod_dictionary/.

54. Siskind, supra note 8.

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