The House Subcommittee on National Security and Foreign Affairs, chaired by Rep. John Tierney, held a second hearing (Wednesday, April 28, 2010), once again on the topic of drone warfare. The first, held back on March 23, was focused on the technology of UAVs; this follow-up hearing was specifically about targeted killing and drone warfare. All of the witnesses this time around were senior international law professors: Mary-Ellen O’Connell (Notre Dame), William Banks (Syracuse), David Glazier (Loyola Los Angeles), and KA.
(I’m traveling, so I’ll post the hearing information when I get home; the AP has a reasonably good summary (considering the difficulty of reporting on four law professors with quite different views politely agreeing and disagreeing with each other …!). The ACLU submitted a written statement (just downloaded but not yet read).)
We four professors represented a pretty good range of the available expert views, and in that regard particularly I think this was a useful hearing. In part, it sought to figure out what this debate meant following DOS Legal Adviser Harold Koh’s statement on drones at the ASIL meeting on March 25. Having been a sharp critic of the administration, or anyway its senior lawyers, including in the first drone hearing, for not stepping up to the plate on this topic, I applaud both the fact of the Legal Adviser’s public statement as well as the substance of his statement.
The pivotal issue – not surprisingly, for those following these debates – is the role of the CIA, whether it takes a role at all and, in particular, where it takes a role. The positions presented ranged from:
- Professor O’Connell’s well-known view that the participation of the CIA is and always is an international crime;
- Professor Glazier’s position that the targets who fit within the AUMF are targetable as part of an armed conflict and that the conflict goes where they go;
- Professor Banks’ position that the participation of the CIA is lawful under both domestic and international law, but that the law in each instance needs to be updated and brought to fit contemporary circumstances; and
- my own view, closest to Professor Banks’, that the CIA participation is lawful, but that there is a separation of the legal rationales and bases, depending upon whether it is a matter of armed conflict or the separate ground of self-defense.
Chairman Tierney did an excellent job of disentangling the highly entangled and conflicting positions among the witnesses. Not easy, because the disagreements are very sharp in some areas, less so in others.
(For my own part, I’m going to have to work on delivering a very clear message about my own views. Like many professors, including our President, I have a tendency to bury the lede in a bunch of hypothetical questions. I framed a series of questions about the role of the CIA – not because I think that its participation is unlawful, but because I thought it would be useful to frame the positions among which I was asserting one. When I read a number of the news stories afterwards, I discovered I had been cited for the propositions in the hypotheticals, not for my actual view that the CIA’s participation is, yes, lawful. My bad – there are reasons why I would never be a good litigator.)
The most striking take-away for me from the hearing was just how much the position of the professional international law community, as ably represented by Professor O’Connell, starts from fundamentally different premises than that of the US government, of any administration, at any time. In this particular instance, Professor Banks and I were, in various ways, channeling the administration – or, better said, the way in which the US government has long approached these questions as a matter of pragmatic law.
These two whole approaches to international law – that represented by Professor O’Connell, and that represented by me, and by Professor Banks and, in this regard, Professor Glazier – the approaches to international, and not just the substantive positions derived from them, are really like ships passing in the night. I tried to say this at the end of my comments: Professor O’Connell and I were arguing past each other, ships passing in the night. But the consequences in the real world are not ships passing; eventually they collide and one or the other prevails. They can’t really meld into some mixed paradigm; the underlying assumptions are too different.
The problem? If you talk about international crimes being committed by the CIA, each and every time it carries out a strike, those are words with consequences. It is hard to talk about merely “correcting” state practices to conform to international law in some general sense of the government of the United States, when the paradigm is that there are individuals who under principles of international criminal law, should not be undertaking a course correction by the administration. If that’s what you mean – and, please to observe, I don’t think this is the case at all – but if that’s what you mean, well, It should be indictment, arrest, and prosecution. For murder and extrajudicial execution and assassination. That’s what you mean if you invoke about international crimes; the whole paradigm is designed, by its nature, to reach to individuals and not simply “sides” in international law and politics.
Just to be crystal clear this time, I don’t think these CIA actions are international or domestic crimes. But the view of the administration, which I think generally legally correct, and that of its critics such as Professor O’Connell, really can’t be reconciled. And if you think it is a matter of international crimes (as, I stress, I don’t), then it doesn’t go away even if the Obama administration decided tomorrow to change course. It has undertaken hundreds of these strikes now, over a series of years; give it a couple of years more until it’s no longer President Obama, and then call it “crimes against humanity.” After all, why not, once the political costs of attacking Democrats, with the genuine intent of finding criminal liability, is gone?
If the stakes are raised, as is currently underway by the soft-law community, to the level of serious allegations of criminality, then the Obama administration now finds itself at the beginning of the process that the Bush administration found itself in regarding detention, interrogation, and rendition. The ACLU is like a dog with a bone; following the relentless logic of collective action coordination failures, it will remain relentlessly focused, gnawing away, and those it seeks to play will be diverted and disorganized in their responses. Death by a thousand paper cuts, I think I wrote in the Weekly Standard. I am as ever stunned by the ability of government officials to think that the advocacy soft law community does not have the ability to set the agenda.
(Side note: My general sense of the politics associated with this, then? Nasty. Not as nasty as I thought before Dean Koh’s speech, so perhaps I am simply inclined to see nastiness, but still … The table is being set now by the NGOs to turn the agenda into a genuinely international criminal one against individual CIA officials – once a Republican administration is in office. I find it hard to resist the sense that if you are, say, the ACLU or the human rights groups, this is win-win politically. The joys of public choice theory and defection game theory.
The game played by human rights organizations of what I have sometimes called “serial absolutism” is a special case in game theory of serially “moving the goalposts,” which in turn is a special case of serial insincere promising (these are the absolute, unshifting standards, we really, really promise this time!!), serial insincere promising about the procedural and constitutive rules of the game, followed by serial defection (whoops! it’s really crimes against humanity, now that the Republicans are in). ’Moving the goalposts’ does not get enough attention in the iterated game theory literature, I think. Unstable coalitions in domestic politics – leftwing Democrats aligned with various foreign and international constituencies, “gaming Spain,” as I’ve sometimes called it – prevent a unified American government from recognizing the pattern of repeat defection and trust-breaking and therefore refusing to take the promise seriously.
Thus, the advocacy groups start with the Obama administration, establishing their bona fides so no one can say that they weren’t even-handed, even though they know that it will only become real, a campaign that ripens into a real chase against individual lawyers, officers, and agents (probably starting with any easy-to-cut-out-from-the-herd military contractors), undertaken and underwritten by a concerted NGO campaign, ratcheting up to a crescendo a couple of years into the next Republican presidency. The only way to slow this down is by creating a policy and considered legal views in the Obama administration that can set a stable precedent for those administrations, Republican and Democrat, that follow.)
Director Panetta has been doing a remarkable job of push back in the press, and certainly with Congress, on the efficacy and focus of these strikes. (Of course, I regard Legal Adviser Koh’s statement as an outstanding beginning for the American government to state its long-term position on the law.) I suspect Panetta has convinced some important, and not otherwise friendly, reporters that the collateral damage is far closer to what the CIA says than what the NGOs say. But I’m not sure even he understands how much the ground is shifting even from the argument over collateral damage to a much more basic one – why does the CIA even engage in the use of force at all? Shouldn’t all uses of force be either military (in an armed conflict) or law enforcement?
Why does the CIA have any function of covert action? That question was plainly on the table in the House subcommittee hearing, and I thought there was a twinge of hesitation on the part of some lawmakers. I remarked – seemingly off topic but in fact at the center of things – the United States, like other leading states, has long believed that its national security and self-defense required a covert civilian service. We thought about ending it in the Church hearings but didn’t. We have had many opportunities to end it, but we’ve never taken them.
In my view, we are right to keep that ability. But there are plenty of people who think it a bad idea on both policy and legal grounds. (For that matter, in my experience, the Defense Department has many serious military people, both operational and legal, who think the use of force by the CIA is always a mistake and indeed illegal. I’ll discuss that view in another post. Professor Glazier seemed to reflect this view in part, although I don’t want to speak for him on so fundamental a question.)
We are at one of those periodic moments, in other words, when the fundamental question of CIA covert use of force is on the table of public debate again. I hope that Director Panetta pays close attention to the tenor of the hearing last week and understands that among the multiple layers of issues – drones, drones beyond AfPak, the role of the CIA in an armed conflict, the role of the CIA in self-defense – the question of whether the CIA should ever use force is on the table.
Elliot says:
Is this a function of the US goverment org chart? If CIA were moved under DOD would it be OK?
How about the particiption of the Defense Intelligence Agency? War crime?
May 1, 2010, 11:19 pmAnonsters says:
CIA shouldn’t be involved in this kind of thing. Take them out of the direct action business altogether. We needed, after Pearl Harbor, an intelligence organization. The Cold War intervened, and people thought covert action was a great tool. 9/11 demonstrated yet again that we have massive blindspots when it comes to intelligence gathering and analysis. This is an opportunity to make CIA what it was always meant to be.
May 1, 2010, 11:25 pmanonymouse says:
can anyone refer me to state or federal laws prohibiting civilians from operation unarmed drones?
May 1, 2010, 11:36 pmrachel says:
You used the meld word nicely.
Important work you’re doing. Hope you stick to your, um, guns re the serial absolutism blood sport.
May 1, 2010, 11:50 pmPeteP says:
Funny enough, as I read the above I’m watching a show on the History Channel about the Revolutionary war, specifically pointing out the way the American sharpshooters targetted the Indian guides of the British, and the British officers ( often by name, not merely rank ), and how this was pivotal in winning the war, and the Founding of this country.
The Americans ‘changed the rules’ that the British thought were ‘fair’ ( standing ranks in open fields ). however, ‘fair fights’ are for sporting contests, as any warrior can tell you. In a war, ‘he who remains alive, won’. The Jihadis have changed the paradigm of battle today. We must also change and adapt, or perish.
May 1, 2010, 11:53 pmAnonsters says:
So facile it must be true!
May 2, 2010, 12:02 amAnonsters says:
(And Obama got in a Predator Drone joke, about targeting the Jonas Brothers or somebody tweenish and poppy like that, at the White House Correspondents’ Dinner tonight.)
May 2, 2010, 12:09 amSoronel Haetir says:
To the extent that your summary is accurate I would agree with Glazier. Pragmatic concerns are all that should keep us from bombing Paris or Toronto. That calculus changes entirely once the target is inside the US, however. Most of the time I see the ACLU as doing what is right for (often nasty) reasons. This area however they may well have gone too far.
May 2, 2010, 12:16 amJohn Skookum says:
The vigorously prosecuted drone war and the new agile NASA policy are pretty much the only two things Obama has done since taking office that I find admirable.
May 2, 2010, 12:17 amKenneth Anderson says:
I should be clear – in none of this discussion is any activity by the CIA directed toward anyone inside the US at issue; it is prohibited by statute from this. It was not a topic of the hearing as that is assumed from the beginning.
May 2, 2010, 12:21 amrachel says:
OTOH, Obama’s drones are shooting on our southern border. Photos, probably ;)
We need covert extraterritorial operations and plausible deniability, within reason. Therein lies the rub, but friction is a fact of life, so let’s stay alive.
“We can try to understand
May 2, 2010, 1:40 amThe New York Times’ effect on man.
Whether you’re a brother
Or whether you’re a mother,
You’re stayin’ alive, stayin’ alive.”
Cornellian says:
Isn’t nearly every Congressional hearing a drone hearing?
May 2, 2010, 2:18 amMark N. says:
Did you use italics there for the purpose of including a three-paragraph parenthetical? Let nobody claim that conservatives are anti-intellectual: Professor Kenneth Anderson bravely fights a single-handed battle against the “Palinization” of the right!
May 2, 2010, 8:22 amBob from Ohio says:
You are way over-estimating the power of NGOs or the “professional international law community” to engineer prosecution of Americans. They still depend on national governments which have no stomach to challenge the US on these issues. The ICC is of course already shown it only going to prosecute low risk Serbs and Africans.
All sound and little fury. There have been how many prosecutions of Bush officials or CIA operatives?
May 2, 2010, 6:40 pmKirk Lazarus says:
True, Bob. The horrible on parade (“Americans charged with war crimes!?!? Americans!”) is just to persuade the numpties that these activities aren’t something that should be subject to oversight. Actually I don’t oppose US covert action against Islamists, but they don’t seem to have got it quite right. When it’s covert action, you’re not supposed to hold a “covert” news conference every other week announcing your latest success.
May 2, 2010, 11:54 pmmark c says:
the fact that a bunch of politicians and parsing leftist lawyers are determining how we’ll defeat our enemies tells me we’ve already lost.
May 3, 2010, 1:11 pmAccidental Warrior says:
What strikes me is the fact that you are giving up at the outset one of the more powerful tools available to a pragmatic bases. Viewpoints established only on idealism, as are most of those on the left liberal side, are prima facie bound to fail because they do not take into account the actual behavior of mankind.
There is ample evidence and research to create a strong pragmatic basis for behavior based on the makeup of mankind from the stream of research beginning to emerge from the soft/social sciences. Herbert Gintis, an economist well versed in this emerging viewpoint, reviews books on Amazon and is a good starting point for understanding why pure ideological viewpoints are bound not soon enough for the trash heap. It won’t be an easy viewpoint to explicate and probably even more resistant to mediation than the current divide but it will be much more sustainable as the scientific evidence for its accuracy both supports it development and, as it should, changes it for the better over time as more is uncovered through real scientific research. Conservative ideologies are typically more friendly to this emerging stream simply because they are skeptical of the innate nature of man as being good but they remain primarily idealistic in nature nevertheless.
Apophat
May 3, 2010, 1:25 pmMarty says:
imho Elliott raises the key point—what is it about CIA involvement that is a legal problem? Surely it cannot be their place on an org chart. Either the activity is legal or it is not, and that point as well as the precise nature of the violation (in the latter case) must be a matter of the action and its purpose and justification and authorization (both CIA and DoD ultimately report to the President).
May 3, 2010, 1:35 pmrhhardin says:
My first-principles intuition on the matter is that international law applies between sovereign states.
If there’s a problem, you deal with the state.
If on the other hand, there’s no state control of the matter, as in a lawless region, then we take care of it ourselves, and that’s where drones come in as a technological improvement over traditional incursions.
That’s the deal we offer. You fix it or we will. A certain amount of cooperation in fact comes from this position.
May 3, 2010, 2:00 pmR. Harris says:
What idiot thought that 3rd party for printing this out was a good idea?
May 3, 2010, 2:09 pmR. Harris says:
What idiot thought that 3rd party for printing this out was a good idea?
May 3, 2010, 2:09 pmsetnaffa says:
Does Professor O’Connell find the use of hijacked planes running into civilian-occupied buildings in Manhattan “is and always is an international crime”?
Just want to see which side he’s really on… The dhimmi lout…
May 3, 2010, 2:23 pmKristo Miettinen says:
This discussion of drones is valuable, but like the discussions of interrogation a few years ago it seems to miss the critical issue of purpose in determining what can be done.
While there is authority for use of force under titles 10, 18, and 50, and while those authorities vary in what is permitted, it is not enough to establish that the CIA operates under title 50 and title 50 permits this or that; it must also be established that the mission is a title 50 mission rather than a title 10 (or a title 18) mission. This was overlooked IMO in the interrogation discussions of yesteryear, and is being overlooked in the drone discussion as well.
It is reasonable for the CIA to have different rules than the military or law enforcement, but it is inappropriate to then assign to the CIA missions that by charter belong to those other communities. To do so may not violate a law, insofar as all these titles are properly constituted laws; the question of which law to apply is more a matter of meta-law, or senior leadership judgment.
May 3, 2010, 2:43 pmMark Buehner says:
Well said.
May 3, 2010, 3:24 pmDensityDuck says:
It’s not anything new to suggest that using deadly force outside of declared military conflicts is illegal; people were saying it about Clinton’s cruise-missile strikes back in the 1990s.
I figure that it’s really just like Stalin said; “#(%^&* the NGO’s, how many divisions have they got?
May 3, 2010, 4:16 pmSagar says:
subject to a Root Cause Analysis, of course.
May 3, 2010, 4:20 pmM. Simon says:
The problem? If you talk about international crimes being committed by the CIA, each and every time it carries out a strike, those are words with consequences. It is hard to talk about merely “correcting” state practices to conform to international law in some general sense of the government of the United States, when the paradigm is that there are individuals who under principles of international criminal law, should not be undertaking a course correction by the administration. If that’s what you mean — and, please to observe, I don’t think this is the case at all — but if that’s what you mean, well, It should be indictment, arrest, and prosecution. For murder and extrajudicial execution and assassination. That’s what you mean if you invoke about international crimes; the whole paradigm is designed, by its nature, to reach to individuals and not simply “sides” in international law and politics.
==
The above paragraph (the core of the argument) could use a little tightening.
Otherwise – very interesting.
May 3, 2010, 6:28 pmL. Stanley says:
If you are going to fight the US, you use whatever means you have at hand. Using NGOs is simply one more means to an end. The CIA, and those who authorize it, is just a tactic.
May 3, 2010, 6:47 pmKen Hahn says:
The internationalists, having no loyalty to anything other than their own vanity, will always define anything of which they disapprove as a crime. I will return the favor. Internationalism is criminal disloyalty which comforts dictators and real war criminals like Saddam, Kim and the mullahs. Professor O’Connell accepts and demands the full protection of US law while working tirelessly to damage the country’s ability to either enforce the law or defend itself. Unable to persuade, the internationalists are more than willing to impose their views on everyone. The “international community” is a hostile foreign power. It has been at war with the US since 1945, if not 1917. Its agents, like professor O’Connell, will not rest until the country is disarmed, weakened and collapsing. They think that they will rule over the ruin as an intellectual elite. But if it happens they’ll find the guys with the guns on all sides have a different opinion.
May 3, 2010, 10:14 pmDave Hardy says:
It has resulting in some thoroughly entertaining videos of the enemy being disassembled by Hellfire missiles. This is more productive than all the debate over the issue. It is incumbent upon anyone challenging the legality (to the extent the concept of “legality” applies in a conflict where the opposition ascribes neither to the law of war nor that of peace) to produce equally entertaining videos.
May 4, 2010, 1:40 am