Emerging Trends in Modern Warfare Conference

Emerging Trends in Modern Warfare Conference



The Emerging Trends in Modern Warfare conference will consist of two panels discussing different changes that are happening in the ways the United States military operates. The first panel focuses on the practical operational considerations that are necessary when people from the military, law enforcement, and intelligence communities work together and how this convergence is actually working in the field. The second panel focuses on the Constitutional, International Humanitarian Law, and Law of Armed Conflict issues that arise when these components operate together overseas.



Sept. 21, 2012 from 9 a.m. to 3 p.m. Registration begins at 8:30 a.m.


Seminar rooms 4 and 5 (S-4 and S-5). University of the Pacific, McGeorge School of Law 3200 Fifth Ave. Sacramento, CA 95817 Map & Directions


  • General Admission — $20
  • MCLE Credit (Pacific McGeorge Alumni) — $25
  • MCLE Credit (non-Alumni) — $40
  • Students and Pacific McGeorge Faculty — Free
  • Register & Pay


For more information, please call 916.739.7138 or send an email to mlsatmcgeorge@pacific.edu.


8:30 to 9 a.m. Breakfast & Registration
9:15 a.m. to 9:30 a.m. Opening Remarks
9:30 a.m. to 11:30 a.m Panel 1: The Operational Convergence Between the Military, the Intelligence Community, and Law Enforcement

  • Herb Brown, Special Agent in Charge, Federal Bureau of Investigation
  • Dana Dyson, Deputy Chief, CIA Office of General Counsel’s Operations Division
  • James Schmidli, Deputy General Counsel for Operations, Defense Intelligence Agency
11:30 a.m. to 12:30 p.m. Lunch
12:45 p.m. to 2:45 p.m. Panel 2: Constitutional and International Legal Challenges Related to Modern Warfare Tactics, Technology, and Practices

  • Professor John Sims, University of the Pacific, McGeorge School of Law
  • Ms. Anne Quintin, International Committee of the Red Cross
  • Professor Gregory McNeal, Pepperdine University School of Law
2:45 p.m. to 3 p.m. Closing Remarks


“Kill Capture”: A live chat with PBS’ Frontline

PBS Frontline Kill Capture Afghanistan.png

“Kill Capture”: A live chat with PBS’ Frontline:  Tonight, PBS Frontline is airing ‘Kill/Capture,’ a six-month investigation into the U.S. military’s program of targeted killings in Afghanistan. The military says these raids have taken some 12,000 insurgents off the battlefields of Afghanistan over the last year, and represent a crucial part of the U.S. strategy in the country. Afghan government officials, Afghan communities, and human rights groups, on the other hand, have objected to the raids on the grounds that they alienate the local population and are unduly harsh. The question is: will the kill/capture missions help end the war in Afghanistan?

(Via The AfPak Channel.)

Pocket Litter, Intel and the Ground Operation

Beyond confirming that Bin Laden was actually the person killed in Abottabad, what is the significance of troops being on the ground to conduct the Bin Laden Operation?  Can their presence lead us to the new #1 in al Qaeda, Ayman al-Zawahiri?

In the coming days we will likely hear about the gathering of “pocket litter” and other exploitable intelligence and there will probably be some speculation about where that intelligence may lead us.  Given that the U.S. has surveilled the Bin Laden compound for a few months, we likely know quite a bit about the comings and goings of couriers and others who may lead us to Zawahiri.  Moreover, unless this operation was time sensitive (which it doesn’t sound like) we can expect that U.S. forces would not have conducted the operation without already planning for the next operation — the one leading to Zawahiri.  Of course, if we knew where Zawahiri was we would have conducted simultaneous operations.  The fact that we didn’t likely means that we were hoping to exploit intelligence to be found inside the Bin Laden compound.  The value of that intelligence gathered on the objective will determine whether Zawahiri’s days are best measured in weeks, months, or longer.

Cross Posted at OJ

ABA National Security Law Report: Winter 2010 Issue

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The Winter 2010 Issue of the ABA National Security Law Report, the flagship publication of the Standing Committee on Law and National Security is now available on-line here.

Here’s a look at the Table of Contents:

In The Problem With Law Avoidance, Geoffrey S. Corn (South Texas) discusses the controversy associated with defining what role international law plays in constraining U.S. counterterrorism activities. Laurie Blank (Emory Law) responds.

Laurie Blank argues that In Counterterrorism, The Law of War is a Key Source of Law for the Courts while Geoff Corn responds, offering additional thoughts on the history of how courts for over 60 years.

Tung Yin reviews Alan Dershowitz’s Is There A Right to Remain Silent? Coercive Interrogation and the Fifth Amendment After 9/11.

General John D. Altenburg reviews Homeland Security: Legal and Policy Issues.

Adrian Snead, Redefining Fourth Amendment Rights in the Digital Age: Suspicionless Border Searches of Electronic Data Storage Devices.

Since 1991, the flagship of the Standing Committee’s publications program has been the National Security Law Report. The Report is regularly distributed to attorneys, government officials, professors, and legal scholars. It includes: reports of committee conferences, pertinent law and national security updates, recent cases, book reviews, pending legislation, and other writings relevant to the field. To receive future copies of the National Security Law Report, please submit your full address to the Standing Committee’s mailing list.

al Qaeda Bomb Making Manual for Lonewolf Homegrown Terrorists

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The Daily Telegraph reports that al Qaeda’s Global Islamic Media Front has released a 102 page English language bomb making manual entitled “The Explosives Course.”  I’ve personally reviewed the document and it is amazingly well sourced and professionally prepared.  Sadly it provides all of the tools necessary for a lone wolf terrorist with limited training or education to carry out IED attacks against soft American targets.

Alexander Hitchens at ICSR calls it “the most lengthy and sophisticated manuals of its kind” and I have to agree with his assessment.  Entitled, “The Explosives Course” it says: “This book is aimed for brothers who have a sufficient understanding of the risks in this – both the actual sensitive task of making explosives and of its security risks.”  The books says: “[t]hough we have successfully performed these experiments and came up with new developments, the work of compiling these – more detailed editions of the book – are being delayed. Thus we decided to publish this work as a raw edition.”  In short, we are looking at the first in a planned series of publications from al Qaeda.  The book is divided into three parts 1. Laboratory; 2. Chemistry; 3. Manufacturing.  Each section provides instructions on how to prepare explosives using common household items, and even includes recommended locations for where to find components.

alQaedaExplosivesCourseSamplePage greg mcneal.jpg For an idea of the sophistication of the publication I’ve included an image featuring a harmless page from the book below.

This development comes shortly after al Qaeda’s launch of their English language magazine, Inspire, both of which demonstrate al Qaeda’s reliance on the internet for training and recruiting new members. This is a harbinger of things to come as al Qaeda continues to evolve from a centrally managed terrorist network to a decentralized, homegrown terrorist threat comprised of motivated individuals with little physical connection to other terrorist operatives.










Must Read Books on Terrorism

Over at The Browser, Mary Habeck, Associate Professor of Strategic Studies at Johns Hopkins University picks five books that readers must buy to understand the War on Terror.  It’s an interesting post and worth the read.

Her picks:

Inside Terrorism by Bruce Hoffman

Understanding Terror Networks by Marc Sageman

The Looming Tower by Lawrence Wright

The Accidental Guerilla: Fighting Small Wars in the Midst of a Big One by David Kilcullen

The Great Theft: Wrestling Islam from Extremists by Khaled Abou El Fadl

To that list I would add three more with a decidedly legal focus:

Law and the Long War by Ben Wittes

The Terror Presidency by Jack Goldsmith

The Constitution and 9/11 by Louis Fisher


President Obama’s Executive Order On Indefinite Detention Will Be A Failure

The Washington Post, USA Today, the New York Times, and others report that President Obama is preparing an Executive Order (EO) spelling out procedures for the indefinite detention without trial of detainees held in Guantanamo.  I haven’t read a draft, and I don’t need to read a draft to know that the EO is destined to fail.  For additional thoughts, read Lawfare, where there are analytical posts by Bobby Chesney here, Jack Goldsmith here, and Ben Wittes here.  Spencer Ackerman also has a thoughtful critique here.

The problem with this EO for indefinite detention (and EO’s more generally) is the easily changed nature of the procedures —they exist at the whim of the Executive and can be changed to suit his needs.  This process is going to create an opening for additional litigation, but unlike a statute the EO will lack the legitimacy of open and robust debate married to fixed procedures.  As evidence of this fact one need only look back to the pre-Hamdan military commissions (MC) established by Presidential Military Order.  Under the PMO MC’s the changing nature of the procedures was one of the major critiques raised by the detainees, and they used the changing process as an opening to argue about Executive authority and all manner of other issues.  Their critique had some merit on due process grounds: the original procedures for trials were spelled out in a lengthy PMO, they were supplemented by a handbook somewhere within the DoD bureaucracy, those rules were then frequently modified due to flaws (real or perceived).  All of this took place within the bureaucracy, but without the type of transparency and input one would get in any other bureaucracy governed by the APA or even with the type of transparency that governed changes to the UCMJ.  All of these factors made for big critiques of the PMO MC’s on legitimacy grounds, and it gave the detainees an opportunity to argue that the rules of the game were changing to further the end of successful convictions.  They argued about process and the PMO, and as good litigants, they also argued about Presidential power, sources of law such as IHL and IHRL, they raised questions about statutory authority and how to interpret the statutes authorizing the President to try detainees by military commission, and ultimately courts at different levels addressed all of these questions.

In this instance, I can’t see how some new indefinite detention process will be perceived as legitimate and not…ClickRead the full entrybelow to continue reading.


WikiLeaks and the Media

Tom Joscelyn has a great post about the upcoming WikiLeaks dump to the media.  The piece argues that Julian Assange’s Narrative Shouldn’t be the Media’s.  Joscelyn notes:

Assange intends to embarrass the U.S. with this release. But his spin on the documents will surely be skewed by his transparent anti-Americanism, just as his spin on previous leaks has been in the past.

Journalists covering WikiLeaks would be wise to remember that when Assange released a trove of documents concerning the war in Afghanistan he said they would reveal that America is guilty of ‘thousands’ of possible war crimes. They did nothing of the sort. And when Assange released even more documents concerning the war in Iraq, the press repeated an entirely false claim that the documents demonstrate that 285,000 people were killed in the war. The press was also quick to highlight any American mistakes revealed in the documents, especially with respect to civilian casualties. The real story is that the documents demonstrate – unambiguously – that the overwhelming majority of civilian casualties were caused by Iraqs and Americas terrorist enemies, as well as ‘criminal events,’ not by the U.S. military.

Undoubtedly, the documents will generate some interesting stories. For instance, some press accounts have hinted that the Obama administration’s diplomatic efforts with respect to closing Guantanamo may be detailed in Foggy Bottom’s correspondences. But one story that will surely receive less attention than it deserves is how Julian Assange’s narrative all too often becomes the media’s.

I think Joscelyn is right on point.  If the media can’t control their urge to publicize these documents, they should at least be objective in how they air them.  Check out Tom’s full post at Weekly Standard Blog.

Human Rights Board Member Criticizes Decision To Represent an Active Terrorist

Criticism of a decision to represent al Qaeda on the Arabian Peninsula leader, and al Qaeda supporter Anwar al-Awlaki is coming from an unlikely source… a board member at the Center for Constitutional Rights, co-counsel to al-Awlaki’s father.

Karima Bennoune has:

gone public with her misgivings at the CCR’s decision, reflecting a debate within human rights groups on how to deal with Islamist fundamentalists.

‘I support the important work the centre has done on torture and extraordinary rendition,’ said Bennoune, ‘but I expressed grave concern at CCR offering to represent Awlaki’s interests pro bono. Anwar al-Awlaki is not a detainee; he is still at liberty and able to gravely harm others by inciting and advocating murder.’

Bennoune pointed out that Awlaki published an article in al-Qaida’s English language magazine, Inspire, in July openly calling for assassinations of several people, including a young woman cartoonist in Seattle and Salman Rushdie. This was at around the time the CCR was offering to represent Awlaki’s father, she said.

Bennoune, who is of Algerian descent, also expressed fears that the CCR and the ACLU were in danger of ‘sanitising’ Awlaki to western audiences.

‘Since the inception of the case,’ she said, ‘there has been increased mystification of who Anwar al-Awlaki is in liberal and human rights circles in the United States. This may in part have resulted from the fact that a highly reputable organisation like CCR was willing to represent his interests, and described him only as ‘a Muslim cleric’ or ‘an American citizen’, and repeatedly suggested that the government did not possess evidence against Awlaki.’  (SOURCE: Andrew Sullivan)

Diane Marie Amann notes:  “Karima’s stance dovetails with that she set out in her recent IntLawGrrls post, On 9/11, Remembering the Other’s Others: International Law & Muslim Fundamentalism, published on the 9th anniversary of the terrorist attacks. As described in the Guardian, Karima’s position is further supported by 5 ‘prominent Algerian non-governmental organisations, including associations of victims of terrorism and women’s group.”


Al Qaeda and Al Qaeda on the Arabian Peninsula: Affiliated or One and the Same?

Over at Lawfare, Bobby Chesney highlighted a recent NPR story (“Al-Qaida, Affiliates Showing Greater Coordination“) which notes that U.S. officials are claiming that there are increasing operational ties between Al Qaeda and Al Qaeda on the Arabian Peninsula.  Bobby notes that this may have an impact on the al-Aulaqi litigation, specifically:

The nature of the AQ/AQAP relationship of course is central to the debate regarding the authority of the United States government to use military force in Yemen, and hence central to the merits issues in the al-Aulaqi litigation.  For that matter, it may also be central to some of the issues that the government has raised in its motion to dismiss (see Ben’s summary of the oral argument here), either because the court might decide it may not second guess the executive’s judgment regarding the AQ/AQAP relationship  or because the court might decide that the intelligence relevant to shedding light on that relationship in any event implicates the state secrets privilege.

* * * *

If it turns out that the ACLU/CCR suit will depend to some extent on the nature of the AQ/AQAP relationship, could the government defend itself without having to produce such communications?

I thought I would add to this an interesting point raised in the U.S. government’s OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS in the al-Aulaqi litigation.  There, the government explains how Al-Aulaqi was designated a “Global Terrorist” by the U.S. Department of the Treasury, then four days later “the United Nations’ Al-Qaeda and Taliban Sanctions Committee added him to its Consolidated List of individuals and entities associated with al-Qaeda, Osama bin Laden or the Taliban.”  The designation specifically noted that al-Aulaqi was:

“participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of”, “recruiting for”, and “otherwise supporting acts or activities of ” Al- Qaeda (QE.4.01) and Al-Qaeda in the Arabian Peninsula (QE.A.129.10).” (emphasis mine) (page 6-7 of the Govt.’s brief)

In short, if one doesn’t trust the U.S. and its designation of al-Aulaqi, one still has to disbelieve the United Nations and their separate designation of al-Aulaqi.  That designation goes farther than the U.S. designation, finding that al-Aulaqi is “associated with Al-Qaida, Usama bin Laden or the Taliban…” It’s difficult to see how the Federal Courts will disregard the collective wisdom of the intelligence community, the military, other components of the Executive Branch, and a United Nations Security Council Special Committee dedicated pursuant to Security Council Resolution 1267 to terrorism and these specific designations.  These types of questions seem to fall squarely within the political question doctrine, directly impacting foreign affairs and a court’s decision intercede to make its own determination regarding the propriety of al-Aulaqi as a lawful target would be a pretty dramatic encroachment of Article III courts into matters committed to the political branches.  CLICK “READ THE FULL ENTRY” TO CONTINUE READING.