A Rejoinder from Jenks and Corn re U.S. SIGINT Based Targeting

There is probably no area of greater consensus between us and Professors Goodman and Jinks (their post) than the recognition that the law of armed conflict should and must be responsive to the immense moral concerns that arise during mortal combat. Thus if, as our friends indicate, our initial post actually created “the false impression that the law of armed conflict (LOAC) is indifferent toward the moral concerns raised by such knowing use of faulty intelligence in lethal targeting” it was certainly not intentional.

Indeed, in our experience we have found that military commanders charged with the unenviable task of making lethal judgments understand better than most the profound moral consequences of those judgments. And, as the law of armed conflict, and especially the conduct of hostilities prong of that law, traces its roots back to the reasoned judgments of experienced warriors, we are in ‘violent agreement’ with Ryan and Derek that the law and those interpreting it must be vigilant to consider the relationship between legality and morality in combat.

We also agree – to a certain extent – with Ryan and Derek’s closing sentence, “The evidence [Scahill and Greenwald] provide, admittedly of a preliminary character, suggests concrete legal and policy concerns that demand sober reflection.” Where we disagree is the conclusion that Scahill and Greenwald’s “evidence” demands sober reflection. As we noted in our original post, that evidence is of dubious probative value, an issue Ryan and Derek bypass. More importantly, the inferences Scahill and Greenwald draw from that evidence are in large measure inconsistent with military practice and the role of signals intelligence in the targeting process.

Where we think we agree fully with Goodman and Jinks is that any lethal targeting process directed against an unconventional enemy demands sober reflection. So much is established by the quite accurate emphasis on the role of precautions in the targeting process. Where we differ is on the relationship between contextual reasonableness and ultimate accuracy. Scahill and Greenwald suggest (ostensibly supported by Goodman and Jinks), that mistakes in targeting outcomes ipso facto indicate the unreasonable reliance on NSA intelligence and targeting decisions.

In contrast, we sought (and seek) to emphasize the value of signals intelligence in the totality of information considered by commanders, and the extensive additional process introduced into the targeting process to account for the unconventional nature of the enemy and the potential that the enemy will cloak his actions through the use of human shields in the form of unwitting recipients of SIM cards. In our view, this undermines the assertion that heavy reliance on this intelligence as a factor in the target decision-making process is inherently unreasonable. 

About the Author(s)

Chris Jenks

Assistant Professor at the SMU Dedman School of Law, Formerly Served in the United States Army, Former Chief of the Army’s International Law Branch in the Pentagon Follow him on Twitter (@ChrisJenks_SMU).

Geoffrey S. Corn

Presidential Research Professor of Law at South Texas College of Law, Lieutenant Colonel (Retired), U.S. Army. His Army career included service as the Army’s senior law of war expert advisor.