Perhaps the most interesting aspect of his discussion was his spirited defense against accusations of hypocrisy. To the question “Why do you say things you don’t really believe?” he offered several replies.

First, he does no such thing. As he has said elsewhere, “I never say anything I don’t believe…. [I]f you hear me say something you can be absolutely sure that I believe it.”

Second, take what he says in context. He is not speaking as an academic. When he speaks as a Legal Adviser he does so as an advocate. The United States government is the client and he is speaking on behalf of that client. Just as a criminal lawyer will often change roles and serve as a prosecutor, defense counsel, judge, or academic, so too must an international lawyer recognize the different roles that he plays and speak accordingly. Moreover, a U.S. government lawyer must speak with due consideration of what has been said in the past and with due regard for the legal opinions of other lawyers in other U.S. agencies.

Third, sometimes his views have changed. “If there is anything inconsistent between what I said in a footnote when I was 29 and what I said now, then believe me now.” The specific example he gave was about congressional legislation. He said that in the past he often wrote with the assumption that Congress could pass statutes. But having served in Washington long enough he has come to accept that often legislation is simply not an option.

He did not contextualize that comment, so for now one can only speculate as to what he meant. My best guess—and it is only a guess—would be that many of his views about congressional acquiescence to the executive branch articulated in his well-known book The National Security Constitution (published in 1985 when he was 31) are no longer his current views. I say that because the sharpest divergence between Koh the academic and Koh the Legal Adviser comes in the Libya context with respect to the definition of “hostilities” in the War Powers Resolution.

You can judge for yourself whether those replies are persuasive. I personally am sympathetic to all three. I have no way to judge the first, but I have no reason to doubt it either.

Like Alford, I am sympathetic to all three and have no reason to doubt the first; his blog post goes on to other important observations.  But I want to add a comment on the question of where this notion that one speaks differently when one is in government than when one is purely an academic arises.  In Dean’ Koh’s speech, and in Professor Alford’s comment, the locus is the lawyer-client relationship.  Harold Koh is an advocate and, as he said in his UVA remarks (I was also in attendance), that distinct role sometimes means that he must accept that his clients will go for the “lawful but awful” alternative.  Moreover, there is a complicated question as to the hierarchy of legal advice – again, as he stressed, he is the Legal Adviser to DOS, but that makes him a very important lawyer amidst a group of also very important lawyers, including the DOD general counsel, the CIA general counsel, and many others – just in the national security field.

I am, as I indicated, very sympathetic to the position of the government lawyer or, really, policy-maker who must work to a position that is not entirely one’s own and must reflect other people’s views – and yet in the end be supported as the “position” of the administration.  That is hard for academics to swallow, as reactions to Harold Koh’s positions have sometimes shown; but, at the end of day, we academics live in David Lodge novels and have all the authority of the kibitzer. I of course include myself in that assessment.

One reason that the sense of betrayal and hypocrisy over positions that Harold Koh has taken as Legal Adviser has been so acute in some quarters, I believe, is that the academics indeed think of it as being a function of the lawyer-client relationship.  It’s a relationship that academics embrace, in one sense, but in another do not respect it – precisely because at bottom it seems somehow dishonest, insincere, and hypocritical even if a crucial aspect of an adversarial system.  In the context of “legal policy-making” in some loose sense rather than strictly part of the litigation system, it seems to be a bit of a dodge to reach conclusions at odds with one’s professorial declarations by reaching to advocacy for the client.

I don’t think this is the whole story, however.  The obligations at issue are more than just those of the attorney-client.  It is much more profoundly the obligations of a fiduciary – and those fiduciary obligations encompass policy makers in government who have no duties as attorneys.  One enters government at the senior policy-making role (including legal-policy of the kind that inevitably attaches to the general counsel positions, the senior DOJ and OLC positions, and others) as fiduciaries with a public trust.  It is democratically and constitutionally established by the election of the administration to which one belongs – and one is no longer a free agent, intellectually or politically.

One has to operate within the overall policies of this administration – and very often within the traditions, customary interpretations, formal and informal procedures, precedents, and prior decisions and understandings of the department and office.  This is not because it is legally binding strictly, because it might have nothing to do with “law” as such or “legal advice,” but because one is stepping into the shoes of, as Harold Koh once put it in remarking on his own office, a long line of predecessors upon whom others have relied.  The importance of fitting one’s own work within the long-run of the agency or department’s practices and judgments increases the legitimacy and trust that the public has in government; there are exceptions that require sharp breaks from the past, but the default position is that one operates as a fiduciary that looks to the past, sometimes long past, to the present administration and its decision-making, and to the preservation of the legitimacy of the office to the future and future administrations.

That is the obligation of a fiduciary – and it is far beyond the often merely instrumental obligations of the attorney-client relationship to advocate on a client’s behalf.  I have been impressed with Harold Koh’s concern to express that understanding of the role of senior government policy makers and lawyers.  I think he’s right about that, and right to emphasize it as a matter of good faith.  I hope that this understanding will carry over to future administrations, as well, of either party: it is part of the essential long-term coherence and legitimacy that makes democratic governance possible.  But it is far beyond the attorney-client relationship alone. It is a special form of agency, the agency of a fiduciary in a position of political authority.

The conference – organized by the student-run Virginia Journal of International Law and the John Bassett Moore Society of International Law – will explore how to resolve conflicting legal norms found in the United States and abroad, particularly as domestic laws extend their reach beyond countries’ borders. ”Although domestic and foreign legal norms have always interacted, the particular issues that will be addressed during our 2012 symposium have yet to be given significant attention in legal scholarship,” said third-year law student Zach Torres-Fowler, managing editor of the Virginia Journal of International Law.

The keynote speaker for the conference will be the Honorable Harold Koh, Legal Adviser to the State Department, speaking at 9 am Friday; and the day’s panels feature many leading professors.  If the sponsors post up podcasts or video, I’ll come back and link to it later, but I believe papers from the conference will be published by the Virginia Journal of International Law.  The topic has always been around, but is an increasingly important one – conflicts of norms and how courts around the world should resolve them.  Leaving aside the much discussed question of constitutional norms and foreign courts, the whole body of “ordinary” law presents many conflicts questions in novel areas.

For example, the Second Circuit ruled against Chevron in its on-going dispute with Ecuadorian plaintiffs, and the US court talked about “comity” and respect for other legal systems in its opinion.  In other cases, on the other hand, many involving the Alien Tort Statute (which, as my earlier post noted, will be revisited by the Supreme Court), US courts essentially ignore local courts or courts that plainly have a closer nexus of jurisdiction in favor of jurisdiction of US courts found under the ATS.  As the amicus filings of Germany, the UK, and the Netherlands indicate in the Kiobel case – revisiting the ATS in the Supreme Court this term – this creates considerable friction with other states.  But there are many other situations that weren’t really seen in earlier periods – libel tourism, for example, and the clash of free expression and libel norms between the US and the UK.  So although the topic of conflict of legal norms appears quite abstract, it actually takes up some of the most pressing issues among court systems of the world.

I’ll be moderating one of the panels – and I had better get on the road down to C’ville.  Hope to see you there!

The case has attracted intense interest among outsiders, professors particularly – 19 amicus briefs filed on behalf of plaintiffs, and 16 on behalf of defendant corporations. (I signed one, despite my general reservations about scholars’ amicus briefs (drawing upon Richard Fallon’s article, which I have blogged about here at VC, including a response by Amanda Frost), mostly because I know this subject matter very well and believed that if called upon, I could have drafted the brief I signed myself.)

Former DOS Legal Advisor John Bellinger writes at Lawfare that the governments of Germany, the UK, and the Netherlands have filed amicus briefs in support of corporate defendant Shell Oil; the Obama administration filed a brief in support of plaintiffs.  (His post at Lawfare provides links to most of the briefs or the ABA site with amicus brief links.)

Here is what I wish could be got in front of the justices. (I am not a litigator, so I don’t pretend to know how one would frame this substantive point in a way so as to put it in a brief.)  The basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the “law of the hegemon.”  The District Courts have been told, and seem largely to believe, that what they do by way of a universal jurisdiction statute – allowing foreigners to sue foreigners in tort for conduct taking place entirely outside of the United States or having any connection to it save through the ATS itself – as civil law remedies against juridical persons is a faithful expression of international law.  I – along with the foreign governments filing amicus briefs – would beg to differ.  There is no regime of international civil liability, nor is there liability for juridical persons; many fine scholars disagree, of course, and you can find their views in the amicus briefs supporting the plaintiffs.

A better explanation of the ATS as it is currently instantiated is that it is the law of the hegemon, masquerading as international law.  It is US law of tort and civil liability, and the US law of corporate liability, extended by US statute to encompass all actors worldwide and universally.  The standards laid down in Sosa – even leaving aside the questions of corporate liability or universal civil jurisdiction – are thoroughly US-centric.  They require that “international law” be interpreted through the lens of a 200+ year old American statute consisting of one sentence; look to historical interpretations of what Congress might have intended about international law of the day in order to tell the District Courts how to interpret today’s international law; impose American law notions of prudential restraint by courts that are driven in considerable part by domestic law separation of powers concerns, not international law as such even though those concerns establish what “international law” is available for deployment; use American concepts of civil and corporate liability to fill in “gaps” in international law; and perhaps most strikingly, look to American courts as the precedential authority on how to interpret international law.

That, it seems to me, is what a hegemon does when simply carrying its law to the rest of the world.  It is also what a legal system does when what matters to it is its “internal” legitimacy – its fidelity to its own hierarchy of authority and interpretation.  I want American courts to remain internally faithful to their distinct hierarchy of Constitutional legitimacy; yet this is not how the “doctrine of sources,” even in a loose sense, operates in international law.  And while I’m not un-attracted by US hegemony, to be sure, and while I’m also not entirely convinced of the universality of international law, either – still, even a semi-skeptic like me does think it a mistake to confuse “hegemonic law” with “international law.”

A mistake, that is, if for no other reason than that the hegemon seems somewhat in decline.  (“Ne serait-ce point une Amerique lasse de son metier?” as Stendhal (might have) put it.)  Does one really think that the federal judiciary, without further instruction from the Congress, ought to set the terms for how China’s corporations behave in Africa, lacking further connection to the United States on any traditional basis of jurisdiction? I’m all for American hegemony, but in today’s world, even I think it a bridge too far – and quite ungrounded in international law as such.

How one gets that concern in front of the Supreme Court, I have not the faintest idea.  But I do think it is the overarching intellectual and political question at stake.

The withdrawal of U.S. forces from Iraq in December has moved the CIA’s emphasis there toward more traditional espionage — monitoring developments in the increasingly antagonistic government, seeking to suppress al-Qaeda’s affiliate in the country and countering the influence of Iran.  In Afghanistan, the CIA is expected to have a more aggressively operational role. U.S. officials said the agency’s paramilitary capabilities are seen as tools for keeping the Taliban off balance, protecting the government in Kabul and preserving access to Afghan airstrips that enable armed CIA drones to hunt al-Qaeda remnants in Pakistan.

As President Obama seeks to end a decade of large-scale conflict, the emerging assignments for the CIA suggest it will play a significant part in the administration’s search for ways to exert U.S. power in more streamlined and surgical ways.  As a result, the CIA station in Kabul — which at one point had responsibility for as many as 1,000 agency employees in Afghanistan — is expected to expand its collaboration with Special Operations forces when the drawdown of conventional troops begins.

This seems to me the right strategy, particularly for addressing transnational terrorism, and in any case is almost certainly where the center of American public opinion stands with regards to both conflicts.  But we should probably add two things.  First, in Afghanistan – the strategically more important theatre – the CIA’s role is likely to be much more than simply gathering intelligence and engaging in paramilitary strikes, either using drones or its agents and Special Forces teams.  It is likely to be deeply involved in the coordination and funding of various local Afghanistan forces – in something that I suspect will look, in terms of the Agency’s historical role, much more like reversion to the mean.  Proxy forces integrated with gathering intelligence that enable drone and special ops strikes, but also utilized a forces able to help prevent consolidation of a regime that might provide safe haven for transnational terrorist groups, resurgent Al Qaeda or offshoots.

Second, it cannot be repeating sufficiently that the highly successful strategy of drone strikes and special ops owes its conversion from merely a tactic – and one that risked the “whack a mole” weakness of a tactic repeated serially – into a genuine strategy to the role of dense, often ground-level and human intelligence.  Leaving the CIA behind is a way of preserving that vital intelligence network, in addition to its paramilitary capabilities.  As someone once described it, the CIA in Afghanistan will be like the French Foreign Legion – last one to leave, if ever; the force that covers the rear of a strategic retreat under fire.  Or, going back to Miller’s article, as Navy Adm. William McRaven, remarked Tuesday, “I have no doubt that Special Operations will be the last to leave Afghanistan.” I have no doubt, either.

(By the way, I am looking forward to reading Michael A. Innes’ new book on proxy warfare when it appears in May, Making Sense of Proxy Wars: States, Surrogates and the Use of Force, with a forward by the eminent national security law scholar William C. Banks.)

[L]ast week real estate agents in Los Angeles, California, were ordered to stop using helicopter drones to shoot aerial movies of properties they are selling. “Although the FAA allows hobbyists to fly model airplanes for recreational purposes, that authority does not extend to operators flying unmanned aircraft for business purposes,” the Air Division of the Los Angeles police department reminded the California Association of Realtors.

I would be interested if readers knowledgeable in the regulatory law in these areas would let us know in the comments whether the LAPD is correct or not in this view.  I’m not expert in these areas and have no reason to believe it is not a perfect valid order, but would be interested in what expert readers have to say about it.  But the whole of the New Scientist article is well worth reading, to understand just how far drones are already entering civilian, and not only military, uses and how far they will go in the near future. (And I see now that Instapundit has linked the same article – that’s because great minds think alike.)

The task of defending the humanities is difficult not merely because its academic guardians have by and large failed or given up on the intellectual underpinnings, however.  A big part of the problem is that the collapse of the disciplines in their traditional sense has convinced many that the basic problem of the humanities is not that they are badly taught, but that they do not, or no longer, speak to the ‘truths’ of the world.  One economist friend who shares my love of Stendhal remarked to me that it is not that Stendhal is not revelatory of the “world”; it is, rather that literature, as revelatory of human nature and the human world is anecdotal and personal, whereas today we have social science and data. The taste for story, narrative, and literature remain, but merely as taste, not truth. Indeed, he might have continued, we could probably come up with good evidence that our undeniable taste for story and narrative is the product of a biological wiring that seeks to impose order on the world in the form of a narrative; how, then, are we to see Julien and Mathilde as “revelatory,” given that they, too, are narrative par excellence? The same for criticism and the genres of thinking associated with the academic disciplines of the humanities that seek to explicate and interpret; one might as well return to Freud.

This is not, note, the customary criticism of the “useless” humanities that these are disciplines that don’t produce an obvious rate of return. This new dismissal of the humanities is distinct from the problem of trying to see their value in commercial life. After all, as Tyler Cowen pointed out in one of his finest early books, the most vibrant pursuits of the humanities – pace the prejudices of many humanities professors – are often the product of the most vibrant commercial societies.  Why?  Apart from having a society rich enough to support so complex a division of labor in a strictly material sense, I suppose it’s the relation of sense and sensibility. So much of a vibrant commercial life seems on the surface to consist of “sense” – doing the accounting and figuring the rate of return. Yet the stuff for sale, from ephemeral fashion to the design of the great public infrastructure, is actually “sensibility.”

The role of the humanities in this kind of vibrantly commercial society, one which celebrates the high arts and the low arts, high culture and pop culture, is to bring to bear sense upon sensibility, to provide the tools by which to analyze sensibility.  Part of which is culture for its own sake, but part of which serves, intentionally or collaterally, to more effectively sell sensibility.  Making sense of sensibility seems to me the fundamental task of the humanities; for one to care about that task, really care, one has to think that sensibility is something more than merely ephemeral and contingent taste.  Something more than exogenous preference, if you like.  One of the biggest problems today, in other words, is that we simply don’t much believe that the analysis of sensibility says very much, not merely because the humanities disciplines aren’t very good at their own traditional tools, but instead because there isn’t much at bottom to say about preference and taste.  Curation and categorization?  Sure. Analysis? Not really.

There are two different currents here. One is the humanities as disciplines giving up on delivering answers and, in their academic emanations, coming very close to giving up on reason as such. Apart from anything else, it is a position that leaves academic departments ill-equipped to accomplish the proposition on which universities sell these departments, the ability to teach broad analytic and thinking skills to undergraduates, both as a practical life skill and as a public good.

The other is partly an independent phenomenon and partly a move to fill a disciplinary vacuum created by the humanities’ academic collapse. It is, unsurprisingly, the rise and rise of social science as a claim to empirical explanation of human nature, on the one hand. And rationalist economics, on the other, providing a deductive structure that applies an elegant (in one sense) and brutalist (in another) reductivism that strips human motivation down to a simple machine that takes the raw materials of desires and runs it through, first, a narrow rational choice modeling, finally to be polished up and modified a bit by a little behavioral economics to adjust for “real” human beings. It’s as though the way to explain human beings is to put together a model that mimics the behavior of a human being and tweak until it can’t be distinguished from the human being: a Turing Test for social science modeling. Or maybe a Turing Test for being human. It’s only the humanities that gave up on the search for truths about human beings in the world. The economists and the geeks of social science never gave up the search, and they (and we) seem to have concluded that the answers are located in purely technical subjects through purely technical thinking. Or at least we behave that way.

It is possible, of course, that this turns out to be true.  Human psychology explained by increasingly ramified forms of behaviorism.  I doubt it – I think, rather, that one of these days we will conclude that our current reductionist forms of explaining human beings are too reductionist, and that today’s austere and “on the surface” behaviorism turns out to be as mistaken as the baroque multiplication of psychological entities that characterized Freud and psychoanalysis.  But leave that aside; the consequences for the humanities of turning to purely technical subjects for human understanding are grave.  To start with, the new social scientists and economists, working within the deliberately flat and barren propositions internal to their disciplines, strongly bounded rationality, have no larger frame of intellectual history in which to situate themselves, as part of the history of ideas, as something which is not entire of itself.  There’s a name for the temptation to which it gives rise, one we learned in classes in literature and classics: hubris.

It means, for another thing, that the humanities as disciplines, while they might still (barely) be a way of teaching certain forms of reasoning, don’t provide “content” in the intellectual reproduction of commercial culture – at least, not at the fundamental level, at the level of science and applied science.   They are not part of the production of new knowledge.  Success and advance for society lie in the innovations of technical and applied sciences alone – and the humanities lose a place in the production of these innovations, and become relegated to the status of mere items of consumption.  Literature, the arts, criticism, the essay – their social significance lies solely in their role as entertainment.  Entertainment is what one does in one’s free time, for fun. It is dispensable, and the humanities, too, their raw materials and their analytic products, likewise are dispensable. We didn’t use to think this about the humanities, its products, disciplines, and academic efforts. But that’s where we are now: fantastically produced and expensive, but their deliverances no longer can claim to reveal anything very important about the world.  That role has been ceded to STEM; and, well, The Rest is Noise.

The Revista closed because its patron, the Caja de Madrid, is one of the regional Spanish thrifts that has run into trouble – Spain having a particular economic trouble in that its national banks weathered the crisis well, but its regional thrifts financed Spain’s construction boom and bust. The economic trouble is linked to a particular political trouble in that the national banks were well supervised by national authorities, while the regional thrifts benefited from the perennial conflicts between national authority in Spain and the regions.  I suppose that if I were, say, British, and given my general views on the necessity of a demos for democratic governance, I would probably be a Euroskeptic.  But in fact the European project has pulled off several near-miracles, one of which is the integration of post-Franco Spain back into, well, civilization.  Elite cultural institutions like the Revista are part of that consolidation and its closure is an enormous loss.

The Revista’s closure prompts me to one general comment about book reviews.  The collapse of so many stand-alone book reviews as well as newspaper book sections has left a gap in the intellectual genre of criticism.  The kinds of book discussions that we often have in blogs is great – inviting authors to present their new books in blog posts, or online roundtable discussions with an author of a new book.  These are terrific new ways of presenting the ideas in books made much more accessible by blogs and online resources.  But they also have limitations, and one of the most important of these is, to put it baldly, the presence of the author directly on the stage of discussion.  Offering a comment on a book in which the book’s author will immediately respond changes considerably the sensibility that one brings to making the comment.

The book review as a genre of “criticism,” by contrast, depends upon a critical distance from the author in order to focus upon the book.  It is hard if not impossible to do if the author as a living presence is hovering nearby.  All these genres, the new and the old, have their places, but it is harder than it used to be in part for lack of outlets, especially when the new online resources see their advantage in the ability to bring the author into the discussion directly.  I’m unusual in the academic world in liking to write book reviews; I like to read books and like to write about them.  And I like reading and writing the sophisticated, polished reasonably short book review essay as its own genre.  Most academics see book reviews as a waste of time – not taken seriously in the academy, and are not worth the effort.  I agree that is all how it is – but alas, if I were honest about the writing I’ve done that I most like, it’s the highly polished, sentence by sentence edited and revised, review essays I’ve written for the Times Literary Supplement in particular.  I don’t think it has ever done anything for my academic career, even in the handful of cases when the essay was widely noted in the academy, but I think it’s much of my own best work and the stuff I most like.

So I was excited when the Lawfare national security law blog invited me to become the book review editor; short of becoming editor of the TLS or the Boston Review, this is something I’ve always wanted to do.  But Lawfare is not really a blog; it’s a highly edited online journal, run by a long-time journalist with serious editorial skills, and the editors agreed that we should aim in this particular subject area to reinvigorate the traditional book review essay, at whatever length.  I’m really pleased with this; reviewers have enthusiastically welcomed the instruction to write as though for a traditional book review, and to expect serious substantive and copy editing.  My larger point, however, is that the traditional book reviews cultivated a particular genre with a particular sensibility.  The best of the genre had a certain analytic toughness, and it has been harder to come by with changes in media platforms.

According to a lot of reputable media outlets, the sky is falling for both legal education and legal services.  I understand the basis for this conclusion.  A lot of lawyers, young and old, are unemployed or underemployed.  The debt loads of graduating students are staggering.  The established “brand” law firms are doing something they have never done before — shrink, or at least not grow.  This puts lawyers on edge and has a tendeny to spawn unhealthy, short-sighted behavior.  The federal government, through the direct lending of the Department of Education, continues to fuel the lawyer production machine.  So things may get worse before they get better.

Despite the fact that I am one of the go-to people on the speaker circuit when it comes time to talk about structural change, I am not in the sky-is-falling camp.  Instead, I see a lot of opportunities for lawyers, law students and legal educators to do very important and creative work.  What is most exciting about this work is that it will make society better off – law will become better, faster and cheaper.  Many legal services will become more standardized, productized and commoditized.  I realize that these words will rankle some of the old guard, particularly those still making a good living under the bespoke model.  But clients – including corporations, government and ordinary citizens—will love it.  Professional ideals will remain the cornerstone of successful legal enterprises, but denying the exigencies of the marketplace is, to my mind, unprofessional.

Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal.  The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living.

Many people assume that the new paradigm means lawyers working longer hours for lower wages.  That is one future business model.  But I think it utterly lacks imagination.  Lawyers are problem solvers.  To my mind, the growing price elasticity for legal services and legal education is just a very difficult problem.  And whenever I am faced with a very difficult problem, I typically start writing out my thoughts on a massive whiteboard.  (I am told it is quite a spectacle to behold.)  I am also someone who loves to collaborate.  With an outward facing Legal Whiteboard, I am hoping to elicit the genius of my fellow travelers.

He then went on, however, to express what could properly be called much anxiety about drones and targeted killing – anxiety rooted in a presumed relaxation in the disincentive to use force.  Given an unwillingness to finally come down as between support for drone strikes and anxiety about them, Singer finally rested his position on a process issue – the way in which they presumably undermine democracy and democratic decision-making.  However, the way in which drones undermine democracy, on this account, still finally rests upon this root anxiety about not having one’s own forces at risk as a burden upon political leaders.

Anxiety is not a policy.  It might be and, I think, in this case is an admirable sentiment, and a useful way of focusing on the basic question of the use of force.  But ultimately, having anxieties about the implications of one’s weaponry and one’s political leaders who make decisions about how to use it is not the same as actually making a decision about what to do.  When anxiety has to give way to actually deciding whether to use a weapon, or whether to develop a weapon system, someone has to decide: is the possibility that political or military leaders might decide to unjustly to overuse a weapon a reason to not use the most precise weapon available to commanders?  Or not to develop greater precision in the first place?

Because that is the issue in the vague and morally-responsible sounding invocation of anxiety over drones and targeted killing.  Most knowledgeable observers are in broad agreement that these technologies are more sparing both of civilians and one’s own forces, and indeed forces on the other side that one did not deem necessary to attack.  It is always possible that the availability of ever more precise weapons that have these humanitarian characteristics will persuade political or military leaders that they can thereby undertake more uses of force than they might otherwise (although, importantly, the intensity, duration, and damage from more frequent recourses to force might also be far less than conventional means).  But the refusal to use, or the refusal to develop, weapons of greater precision as a way of inoculating, as it were, political leadership from the temptation to use force more immediately comes at the price of holding the civilians and fighters who are on the losing end of this calculation as, in moral terms, hostages.  They are held hostage to the believe that political leaders cannot be trusted.

This is immoral.  It uses the civilian and soldiers whose lives might have been spared by more precise technologies as mere means – hostages – to other ends.  The immorality of this argument is masked by the sincerity of the anxiety – a vague anxiety that covers the true implications of the argument.  The anxiety is admirable – up to a point.  It is admirable to the extent that it forces a serious re-examination of this moral anxiety where it actually lives – which is to say, in the acts of political and military leaders.  It does not live, except illegitimately, in the refusal to use or develop more precision means as a way of pressuring those leaders.  The anxiety ultimately is about the unjust or immoral or wrong resort to force by political leadership, and that is the point that anxiety ought to push.

Ultimately rubber meets road; and anxiety, however morally sincere or admirable, has to give way to policy.  In the actual attack contemplated, do you use the most precise means possible or not?  Are you really prepared to urge the use of less precise means, or to urge that technologically available, more humanitarian means should not be developed?  And if you think the answer is that one should use, or only have available, less precise means, isn’t the real reason that you don’t think the attack is actually just or justified?  But if that is the reason, then have the moral courage to get beyond vaguely expressed anxieties and say so.

(I have given a fuller academic discussion for why I think the argument from the relaxed disincentive to use force a bad one, in a paper that will be appearing as a book chapter, downloadable here at SSRN.  And thanks to Glenn for the link.)

Jack [Goldsmith] just flagged the Fourth Circuit’s unanimous 39-page opinion throwing out Lebron v. Rumsfeld–one of the two pending Bivens suits brought by Jose Padilla arising out of his detention (and alleged abuse) as an “enemy combatant.” Although Padilla’s allegations (if true) would have stated serious violations of his constitutional rights arising out of his long-term incommunicado detention as an “enemy combatant” (and his alleged abuse while in custody), the panel (Wilkinson, Motz, Duncan) declined to recognize a Bivens remedy. There’s a lot to say about Judge Wilkinson’s disturbing opinion for the court–and I’ll try to explain why it’s disturbing below the fold.

The short of Judge Wilkinson’s analysis is encapsulated within the following two passages:

Special factors do counsel judicial hesitation in implying causes of action for enemy combatants held in military detention. First, the Constitution delegates authority over military affairs to Congress and to the President as Commander in Chief. It contemplates no comparable role for the judiciary. Second, judicial review of military decisions would stray from the traditional subjects of judicial competence. Litigation of the sort proposed thus risks impingement on explicit constitutional assignments of responsibility to the coordinate branches of our government. Together, the grant of affirmative powers to Congress and the Executive in the first two Articles of our founding document suggest some measure of caution on the part of the Third Branch. . . . When, as here, these two branches exercise their military responsibilities in concert –- Congress by enacting the AUMF and the President by detaining Padilla pursuant thereto—the need to hesitate before using Bivens actions to stake out a role for the judicial branch seems clear.

In other words, once Congress triggers the use of military force, Bivens should not generally be available if government officers violate the rights of U.S. citizens while ostensibly acting under such authorization. And if that logic wasn’t clear enough, Judge Wilkinson concludes:

Padilla’s complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the though that those involved would face prolonged civil litigation and potential personal liability.

Vladeck, we should add, is not persuaded by the Fourth Circuit’s analysis:

[T]o hold, as the Fourth Circuit does, that these factors categorically cut against the availability of a Bivens remedy is to forswear any Bivens claim challenging any governmental abuses committed in the name of protecting national security, even those in cases in which state secrets or qualified immunity would not bar relief–that is, cases in which there is no realistic potential for the disclosure of classified national security information and it is clear that what the government officers did was unlawful at the time of their conduct. Whether or not that was true in Padilla’s case, this is a disturbing result going forward.

Literature [Nobel] laureates tend to use shorter words than laureates in other disciplines, and the difference is statistically significant. These results confirm Salant’s idea that words are a scarce resource and should be used efficiently. This includes using short words instead of longer ones whenever possible. In short, good writing is also “economical writing.” [Table omitted.]

Note that the lowest average word lengths are for the Literature prize. In terms of syllables/word the Literature laureates’ word lengths were, on average, almost 8% shorter than the weighted average for non-Literature laureates, and about 6.6% shorter in terms of characters/word.

Salant (1969) argued that the use of short words is an indication of good writing. We found support for this hypothesis by comparing the banquet speeches of Nobel laureates. To be sure, word length is only one dimension of what makes for “good writing.” But it seems that it is a necessary dimension. Words are a scarce resource and must be used efficiently. This includes using short words rather than longer ones, whenever possible. “Economical” writing might indeed be the key for “good” writing. We leave for debate the different implications of our paper.

I invite readers to consider in the comments whether the method pursued here is suited to the task at hand, or whether it is instead an example of a method gone in search of something to measure, or something again entirely.  Note that this is different from asking whether good writing indeed consistently uses shorter words (the Hemingway or Orwell “plain prose” aesthetic), or whether good writing is much more variable on this metric than one might have guessed (Blaise Cendrars, for example, or Garcia Marquez or Milan Kundera).  Finally, is it true that “words are a scarce resource?”  Don’t the authors mean, rather, that more words are always available and that reader attention is the scarce resource?  (BTW, in posting this, I should ask whether I have been taken in by a parody – someone bidding for an Ignoble Prize?)

Students of this transformative technology should keep their eye on both the claims and disavowals of authority over robots by state and federal agencies. Each hold potential dangers for our civil liberties and for the future of robotics … the mainstreaming of robotics will pose challenges for regulators. Even if it is clear that a given agency should have something to say about a robot, it is not clear exactly what the scope of their authority will be.

The Federal Aviation Administration worries about (and, for now, restricts) the domestic use of drones on the basis of safety. But the agency does not appear to have anything to say about the potential of this technology to infringe upon citizen and consumer privacy. Similarly, the National Highway Safety Traffic Safety Administration thinks about the impact of autonomous vehicles on safety but does not appear to have given any thought to the effects of driveless cars on citizen autonomy—for instance, were law enforcement to claim a right to force an autonomous car to slow down or pull over.

When I first mentioned my interest in robotics and the law beyond the battlefield where I have been studying it for several years, a sophisticated law professor friend asked how there were legal issues beyond tort and products liability.  The rest of the potential issues – intellectual property, etc. – were not particularly special to robots.  Ryan Calo’s scholarship has been central to showing the many ways in which this potentially transformative, but also disruptive, technology raises in its knock-on effects many legal questions.  And as he says, the avowals and disavowals of regulatory authority by existing regulatory agencies over different types and aspects of robotics raise the specter of regulating things we wish were not regulated, but also failing to regulate things we might wish were.  Comments open for this post.

Demand is high enough that we offer two sections of the 1L Law and Economics class; at our school it is taught as a truncated version of the standard course.  I use Polinsky’s short Introduction to Law and Economics, and we walk through various efficiency and Coase Theorem approaches to common law topics found in the first year.  I supplement this book with materials on public choice, some institutional materials, and a tiny bit of strategic behavior and prisoners’ dilemma material.  It’s a once a week class for two hours, not much time.  The most unusual materials I use are Coase’s original Problem of Social Cost article, and then, as a non-technical introduction to risk, Peter Bernstein’s intellectual history of risk, Against the Gods.

I’ve noticed, however, as the financial crisis has gradually moved to envelop lawyers and legal education, students are starting to ask questions about what exactly Law and Economics as a topic is supposed to do for them as practicing lawyers.  I’ve found students asking this question midway through the term or, increasingly, in frustrated or downright nasty comments on course evaluations – how is this useful to me as a lawyer?  Part of the frustration comes because economics either seemed so obvious to business, or because what many undergraduates studied as “economics” just was practical management studies. One arrives at law school, thinking it is the same in law, but it’s not.  They assumed they would like it because it would be “practical” – economics would “solve” legal problems – but then it isn’t and it doesn’t.

I want to take up this question with students in the first class, while people still can opt out.  I talked about this last year, midway through the course, when I sensed student irritation that this seemed so intellectual and pointy-headed.  I said two things.  First, this is the language of the law today – these are the framing intellectual concepts underlying an awful lot of practical things in the law, and not just business or finance law, either.  Lawyers breathe words like externalities or efficiency; it’s part of the atmosphere of American law.

Second, today there is a keen awareness in the legal system, among all its parts, that consequences matter.  I gave the example of some appellate decision on some environmental matter where the court was specifically called upon to weigh anticipated costs and benefits.  That was cheating a little bit – I deliberately picked a case in which the law itself called for a cost-benefit analysis as part of the very law at issue.  Even so, law and economics is the study of anticipated consequences in the law, and, well, no federal judge wants to issue a ruling and wake up the next day to discover he or she has unilaterally but inadvertently dismantled the securities markets.  But didn’t know it because the parties had argued the law and cases and regulations, etc., but hadn’t briefed the judge on the likely consequences of a given ruling for the system as a whole.

I thought that sounded pretty good, but interestingly the students weren’t impressed.  As one of them put it, that might be fine for students at the top ten schools, but students at mid-tier schools such as mine are only rarely going to become judges or people who design the rules.  They are going to become lawyers within a legal system, doing tasks that take the existence of the rules – including their efficiency or inefficiency, and their consequences – pretty much for granted.  They are, after all, the rules of the game.  Microecon is mostly  ”internal” as a mode of explanation to business and management. Law and Economics is “external” to law as a mode of explanation; it “explains” law using materials from outside it – which is great, except, of course, if you live and work “inside” the law.

I increasingly worry that, at least for most students at most law schools, this comment about the inapplicability of Law and Economics to law practice is correct.  That might be a problem – and leads to another question, which is why Law and Economics has such attraction to law professors (including me).   A big part of the answer, I believe, is that we professors are attracted to law not as an economic field, but as a form of what we (usually naively) think of as “engineering.”  Design science.

Law and economics is often associated with as much as there is in legal academia of conservative or libertarian thought.  But it might be better understood as studies in social engineering.  The economics-driven focus on the design of rules toward efficient ends sometimes makes it seem that the JD stands for, not juris doctor, but doctor of social engineering.  There is some ideological irony in this, of course.  If there is, however, I’d say it’s a result of the focus on the design of regulatory systems.  It tends to turn traditional interpretive, discursive methods of law (learned from humanities disciplines, traditionally) into social engineering design.  And this implicitly underlies even a free-market orientation in law and economics because it, too, is implicitly social choices about design.  (I think Dick Posner recently made some similarly critical remarks about the prevalence of law and economics in the curriculum.)

Whether that is good or bad for students at the very top law schools, I am fairly sure that it not what my students will mostly do in their careers.  Some of them (we’re a DC school, so maybe even many of them), will eventually be writers of regulations or regulatory guidance – in which the approach is law-creating, forward-looking, and consequentialist.  But I don’t think it’s true of the vast majority of students across the country outside of the top twenty law schools.  Perhaps I am wrong.  And it might very well be true – indeed, I think so – that whether one spends one’s career doing regulatory design or not, it is still valuable as an intellectual frame for the study of law, whatever and however one does it in practice. Still, the design emphasis is not that of the lawyer in practice most of the time – though studying a field of law through the lens of its efficient or inefficient design might be the best way to grasp the field as whole, in order to better practice it in its particulars.

Does this gap matter to the study of law?  My unhappy students did not dispute that law and economics sought to teach them a particular way of understanding law and legal questions, a particular vocabulary and method – they instead questioned whether that vocabulary and method was very useful to lawyers who had to deal internally with legal materials and system and rules as they were, not as they might be designed hypothetically toward greater or lesser efficiency.  Their role in the legal system is not to play God.

So let me put it to you.  What should I tell my 1L students tomorrow as to why they should study law and economics – or not?

Update: See Orin’s post on Judge Cabranes’ recent speech calling for a more bread and butter approach.  It’s true, as Orin suggests in the comments, I’m interested here in the Law and Economics question, not the range of electives as such.  And it’s important to understand that these electives are intended to provide a “taste” of different aspects of more advanced law to 1Ls whose first year is otherwise completely fixed and traditional.  I don’t have a problem with my school offering electives like this; I think it’s an excellent idea and we offer different courses in different years.  My question is rather about law and economics and what I should be trying to accomplish and how I should inform students in order that they can make informed decisions about how to use expensive time and credit resources to best advantage.  In any case, the first year electives this year are: International law, Human Rights Lawyering, Law & Economics, Food and Drug Law, Public Law and the Regulatory State, Intellectual Property, The Supreme Court, and Law and Literature.  In my first version of the post, I mentioned a class we’ve sometimes offered as a 1L elective on women and the law.  The elective program is a good opportunity for students who have otherwise been in the traditional first year courses to understand how the first year curriculum leads into specialized areas of law, and that’s true across a wide variety of electives.  My point in this post is not to raise questions about it, but to ask what exactly students should expect to get out of my course in Law and Economics.

One is a continuation of blogging I’ve always done on international law, institutions, and politics, ranging from national security to international organizations. I’ll continue blogging on the interrelationships between drone technology, targeted killing, and the future regulation of covert action (loosely speaking). But I plan to expand to include more writing around the more long-run of autonomous weapons systems and battlefield robotics. These topics track academic and policy writing projects in which I’m engaged already. Robotics and the law generally has caught my interest in a big way, and I plan to post on different ways in which areas and issues of law intersect with the development of robotics in ordinary life. In this I hope to highlight the work of others in this emerging field, while asking what robotics and the law will gradually come to mean.

My short book on US-UN relations, Living with the UN: American Responsibilities and International Order, is in final production and will appear in the next couple of months (yes, I know I’ve said this before, but at this point, it’s down to settling on whether to have jacket blurbs or not). My hope is that it will help inform at least slightly debate over international relations and law in the presidential election – to be sure, mostly as the Republicans would see things, but with observations that I hope would be relevant to any US policy official dealing with the institutional UN. It’s quite true that I imagine John Bolton would find it more persuasive than Susan Rice, but I think it has relevance in a world in which new great power relations and the rise of China are re-shaping many things. (Note to teachers of international organizations, IR, international politics, international law, etc., this modestly priced book from Hoover Press would make a great contrarian addition to your syllabus; you are likely to find it very wrong but, I hope, shrewdly so. It’s not law, but policy, and easily readable at the general reader and undergraduate levels. I’m not writing for international law professors.)

As a teacher of international economic law classes, as well as the co-author in a book project on financial regulation reform, I will be blogging more often than I have in the last year about financial regulation. My co-authored book project is aimed at a very particular level and discussion. Not offering a body of substantive prescriptions for regulation, category by category, or a topic by topic critique of Dodd-Frank – both of these have been done, very effectively. But instead heuristics for prudential regulators seeking to be, well, prudent.

But I also intend to use blog posts here at Volokh this year to explore some new or lightly touched-on areas. One of these is to continue and deepen the discussion of higher education and legal education, their business models and their reform in both their economic structures and curricular forms. I want to push this discussion to include something I think of great importance, and relatively neglected – the defense of the study of the traditional humanities, as well as a certain model of higher education that would require, above all, reform to the admissions process. This discussion is informed by a more abstract discussion that, again, I’ve raised occasionally here but want to pursue on its own – the theory of elites in a mass democratic society, and particularly the version of it referred to as “New Class” theory. It is social theory, unapologetically so, and one that raises the question of social theory as such, and critique of the peculiar tendency of both rationalist economics and behavioral economics to ignore the irreducibility of social and cultural structures – even “institutions” is frankly too contingent a term – and to account for them as such.

These latter topics have interested me for a very long time, and I have an idea – perhaps stretching into 2013 – to play with new publishing forms through e-books and Kindle. I think I’d like to experiment with taking some of my blogging on these latter topics – social theory, elites, the New Class, perhaps framed around the problems of higher education – and put together a short Kindle book, and see how that new platform works.

Well. That’s a lot, much more than I’ll manage to do, and I’m spending lots of time working on pedagogy for my courses, even ones I have taught for many years. But I’m going to try and do some more culture blogging – Baroque and early music, cello, books, and culture. Possibly even a return to Stendhal.

Meanwhile, however, we are about to pass over the White Mountain, in the White-Inyo Mountains that form the eastern wall of the Owens Valley, a peak only 200 or so feet below the top of Whitney across the valley in the Sierra Nevada. These are my favorite places in all the world – even at 38,000 feet, sacred air space. So, passing over a short range in the Sierras called the Inconsolable Mountains, Anderson is at some very pagan prayer.

I gave everyone in the family Volokh Conspiracy tote bags.  Enough said, and that’s not all I gave Beloved Family.  (Inside Beloved Wife’s bag were a couple of Agnes B shirts I tracked down cheap on Ebay; I don’t know much about clothing, men’s or women’s, but I knew from long experience these would be good choices.)

Beloved Daughter gave me two books.  The first is Football for Dummies because, well, that’s my level of knowledge.  But I’m expected to cheer for my alma mater, UCLA, and now for Rice, although I’m told I should not expect many victories.  The second is one of the coolest books I’ve received in a long time, which Beloved Daughter found at a Rice library used book sale.  How Things Work is a 1961 book by a mechanical engineer and editor with a trade magazine in the late 1950s (I’ve got the title slightly wrong – I’ll find it and the author and amend this).  It explains in simple language and great drawings how the mechanical and electrical devices of ordinary life work.  Refrigerators and sewing machines, air conditioning and electric motors, fuses and light bulbs, zippers and car engines.  The reason it is so great is that these are still (as Tyler Cowen and others have pointed out) the machines of daily life, minus the semi-conductor revolution.

One of the strange things is that a lot of popular mechanics and pop sci stuff somehow skipped a generation with me – I learned a lot more about abstract theories and things like relativity and genetics as taught in the 1960s than mechanical things.  Somehow those were taken as obvious – but let me be the first to admit I could not truly explain how a zipper works.  And though I knew about atomic theory, I was hazy on the practicalities like AC and DC.  Or for that matter, why a toilet has the shape it has.  The emerging technologies were computers and such; mechanical objects were assumed.  So this book is a pleasure to read and I’m filling in some crucial gaps about ordinary things.  I’d always been an “assume the can opener” kind of guy – without much clue exactly how a can opener works.  Interestingly, these basic principles of machines and power transfer are at the heart of another book that Santa brought – Mark Ripptoe’s Starting Strength: Basic Barbell Training, which has many drawings showing how levers and fulcrums drive a lot of strength training such as the dead lift.

Our family also watched the entire Lord of the Rings this week.  Apparently this is not that uncommon; I saw that Michael Totten said the same on his FB page and promptly got a bunch of responses saying, yeah, we do that too.  I suppose it’s because the three parts each came out at Christmas.  And when else will you have the time?  But – I defer to Ilya on this – it seems to me there is a spiritual message there that is not precisely religious but part of that which religion and spirituality have always stood to combat – the temptation to despair.  That seems to me the biggest reason why we found the movie appropriate for Christmas.  Resisting despair at the individual level, and using bonds of affection – trust, loyalty, fidelity – to combine together for the greater good and to resist the greater evil.

(I’ve left comments open.)

Lack of Efficient Modalities: The Christmas Gifts appeared to consist largely of in-kind aid.  This contradicts abundant evidence of best practices emphasizing cash transfers as superior to in-kind aid. There was some evidence of #SWEDOW (“Stuff We Don’t Want”) in-kind transfers, the worst possible kind of aid, usually involving fruitcakes.

Lack of Efficient Timing: Contrary to the recommendation that aid consist of an even, predictable flow, the Christmas Gifts program is mostly concentrated on one day, with a few unpredictable lags ranging from a few days (“late deliveries”) to months (“handmade gifts”).

Lack of Net Flows: Evaluators found Christmas Gift recipients engaged in behavior that frustrated the aid program, with Recipients acting as Donors to their own Donors, reducing their own net aid intake. They explained their counterproductive behavior with non-standard concepts such as “Tis more bless’d to give than to receive.”

There were aspects unaccountably unaddressed by the evaluation – principally the role of behavioral incentives, in the form of surveillance by drones by which to make up “naughty” and “nice” lists.  I can only add that since Amazon has taken over the whole program under contract to the United Nations Development Program, it is all anticipated to work much more smoothly.

The first is a Wall Street Journal news article by Adam Entous and Julian Barnes, on debates in Washington (and beyond) on whether (and if so what kinds and capabilities) drones should be sold to NATO allies (e.g. Italy or Turkey), and other allies and not-so allies (e.g., Gulf states).  It is an important article that, like others from the WSJ national security team, distills a lot of lengthy research and background investigation.

The article also raises a question I have sometimes addressed in blog posts – is the US triggering an arms race in drones?  As I’ve said repeatedly, drone technology has the following conceptual parts: flying, computer hardware and software, weapons (if weaponized), sensors, and the communications link.  Of these, flying is the easiest and triggers no arms race because over the next few years or decades, everyone will do it, with widespread application in civil aviation.  The weapons can be difficult to duplicate – if one cares especially about discrete applications of force, minimizing collateral damage, otherwise it’s not so hard to stick a missile on a drone. Sensors – in their ramifying complexity, different kinds of sensors, plus the computer and software integration – are the most difficult part of the drone; this might trigger a race to reverse engineer US technology, but it isn’t really an arms race; these sensors will be developed for many non-military purposes anyway.  The communications link is the weak link of a drone – it might be hijacked, broken, or otherwise attacked, and an arms race is likely to develop that crosses robotics with cyber in the development of defenses and counters to comm link weaknesses.

So I’d say that the US has an interest in maintaining its advantages while it can – but this will not revolve around “drones” in the flying machine sense, but instead other technological parts of drones.  There is room here for intelligent tinkering with export controls – but with respect to advanced sensors, software, and cyber-comm parts of the drone, and likely advanced weaponry, as well.  The real drones arms race, in a military sense, is much more likely to be over the question of protecting or attacking drones in the air – stealth technologies, communications link weaknesses, the stuff that makes them vulnerable or protects them from attack.

The second article appeared today in the Washington Post, by Karen DeYoung.  It features many very interesting interviews (the most interesting are unsourced and background; given the topic, one understands why).  It walks through the current state of the several drone warfare programs conducted by the US.  The article is particularly focused in the question of the secrecy of the drone programs, however, and the government’s refusal to acknowledge them under rules of covert programs.

I am quoted several times in the Washington Post article, mostly for the proposition that the Obama administration needs to be more forthcoming on the legal and policy basis that it sees undergirding these programs, in both international and domestic law.  The quotes are accurate and certainly reflect my view, but I would like to add some additional context.  I call for greater transparency, but do not think I mean it in the way that most of the advocacy and human rights activists mean it.

For many of the critics, in my view, the call for transparency might be genuine – but it is also a stalking horse for a much broader agenda to curtail targeted killing and drone warfare as the Obama administration has conducted it.  Since secrecy is a crucial element of success in such programs, calls for decreased secrecy might sound like – and indeed be sincerely meant – a call for increased transparency in order that outsiders can judge lawfulness.  But objectively speaking, intended or not, the result would be to increase the flow of information to the potential targets of the programs and their supporters.  I’m quite willing, and have said many times, that there is a balancing to be made here, and sensible observers have started by saying, tell us the legal justification, not the facts in particular cases.  As others have noted, it doesn’t really work that way as a process of legal reasoning – these determinations are highly fact specific, casuistical, and facts and law can’t be prised apart in this way.

But okay, there is surely more that can be said, even within a necessary balancing – a balancing, however, that belongs to the US government and its constitutional processes, and should be limited to political branch oversight, in my view.  Even with that, however, I see very little evidence that most of the advocacy groups would actually be happy with transparency as such.  The real objective is to curtail the programs, particularly as conducted by the CIA; it would be disingenuous to hide the ball on that objective.

Since I think the programs, including those conducted by the CIA, are the single greatest contribution of the Obama administration to national security policy – counterterrorism on offense – my reasons for calling for greater transparency are more limited and much more nuanced.  I have come round to agree with something Jack Goldsmith said over at Lawfare a couple of months ago, that as far as international law goes, there is not that much more to be said that hasn’t already been said.  This is not an international law account that depends fundamentally on some deep or textual parsing of cases of the International Court of Justice or other such documentary sources of international law.  It is premised on a much broader assertion of state practice evidencing certain long-held understandings of international law related to self-defense and a number of other things.

The demand for ever more extensive international law justification is mostly a way of saying that one disagrees with the basic approach to understanding international law at that point.  But then it is ships passing in the night, and there is not much point in going into the weeds because ultimately the US does not think the international law answers lie there. As far as US domestic law goes, the weeds – the work that Robert Chesney is doing on the interrelationships between Title 10 and Title 50 authorities, the military and the CIA, particularly – matter a great deal.  But that is not really anything that the advocacy groups care about as such.

That is so, even though I believe that at least some of the things that trouble the advocacy groups become much less of an issue insofar as there is a gradual merger of Title 10 and Title 50 special operations.  The military is never free to disregard the laws of war, and the intelligence community must adhere to Title 50 oversight processes which, one might think, points in the direction of the best of both worlds from an accountability process.  Or at least an accountability process that accepts that reporting will not be made to NGOs.

The domestic law matters to me for a different reason – viz., that, as I was quoted in the article as saying, we really are groping our way toward a new paradigm in the use of force, made possible by new technologies and the understanding that, going forward, we are going to be dealing with non-state actors with counterterrorism tools, not counterinsurgency.  I think we need some revamp of our Title 50 covert activities paradigm to deal with changing ways in which we project and use force, its oversight and accountability, and fundamental categories of acknowledgment.  In doing so, the US government should see the development of its domestic law authorities as providing long-run state practice for how these new, more discrete technologies should be used – state practice that just possibly might shape the very, very long run of international law in this area.

The idea that covert action has jus in bello rules applicable to it is, after all, a new development all its own, at least to judge by how states have traditionally understood the conduct of their state covert forces in the past (rules? what rules? that would require that there be a category of activities).  It is an important assertion of law that the category be understood to exist and to be governed by rules that limit when and where it can be undertaken (e.g., the “unwilling or unable” standard) and conduct rules (Harold Koh’s ASIL assertion that even self-defense outside of formal armed conflict must still adhere to the basic standards of necessity, distinction and proportionality).  These are important developments in state practice, and the US needs to find ways to communicate these as normative developments that undergird the legitimacy of its practices.  That is not, I think, quite what Human Rights Watch or the ACLU think the agenda of transparency leads to.

Finally, I expressed concern in the article’s quotes that the legitimacy of these covert activities was far too much based around the legitimacy of this particular administration – far too much a function of the Obama administration and the bona fides with which it entered office.  The reason I worry about this is simple.  Whether there is a new administration in 2012 or 2016, there will eventually be a new president of some party.  The Obama administration – correctly in my view – is committing the US to a strategic path of counterterrorism that depends in important ways on drone warfare and targeted killing; it is committing the US to this as a strategic, operational, indeed budgetary path for much longer than it can possibly be around.

I applaud this – make no mistake – but I also think for that very reason that the Obama administration has a special obligation to do everything possible to ensure that these tools are fully available to future presidents – and that means undergirding their legal and political legitimacy as much as the line item of drones in the budget. This is a serious legitimacy question, and one that DeYoung’s article spells out very well in its discussion of reaction to these policies among our allies (keeping silent on them, neither publicly criticizing nor endorsing, even after utterly depending on drones in Libya).

The advocacy groups, for their part, are merely clearing their throats with calls for transparency, threats of lawsuits on behalf of drone victims. Not to put too fine a point on it, in my estimation they are pre-positioning themselves for a possible Republican administration come 2012 when, suddenly, policies that required merely greater transparency and deferential discussion and all that when it was the Obama administration become accusations of war crimes once again.  The administration has an obligation to look down the years, ten years, twenty years, down the road, and protect the presidency in a policy that is substantively the right one – a signal contribution of this administration to the discrete and targeted protection of the United States.

I am an uncompromising advocate of precision technologies in warfare, including drones and other remotely controlled machines that, by removing the issue of soldiers defending themselves, allow for more careful targeting decisions.  I’m also a strong advocate of the Obama administration’s targeting killing programs, both by the military and the CIA.  That said, proponents of precision targeting through better technology have long risked raising expectations well beyond what technology supports at any given moment.  Gains in civilian protection come incrementally, much of it through trial and error, a combination of technology and experience gained about operations using it in the field.  Either over-promising too much, too soon or demands that any “improvement” meet a zero damage, strict liability standard has the effect of stopping improvement in its tracks because improvements come incrementally, one grinding step at a time.  Magic bullets come after a long series of unmagic ones.

Unsurprising but nonetheless disappointing was the initial reaction of NATO officials to these Times reporters in their inquiries.  It amounted to a shrug of the shoulders:

By NATO’s telling during the war, and in statements since sorties ended on Oct. 31, the alliance-led operation was nearly flawless — a model air war that used high technology, meticulous planning and restraint to protect civilians from Colonel Qaddafi’s troops, which was the alliance’s mandate.  “We have carried out this operation very carefully, without confirmed civilian casualties,” the secretary general of NATO, Anders Fogh Rasmussen, said in November.

“Without confirmed civilian casualties”?  Not confirmed only because NATO refused to make inquiries.  Only after the Times reporters gave NATO officials a 27 page memo documenting collateral damage deaths in particular sites in Libya did NATO change its stance:

Two weeks after being provided a 27-page memorandum from The Times containing extensive details of nine separate attacks in which evidence indicated that allied planes had killed or wounded unintended victims, NATO modified its stance.  “From what you have gathered on the ground, it appears that innocent civilians may have been killed or injured, despite all the care and precision,” said Oana Lungescu, a spokeswoman for NATO headquarters in Brussels. “We deeply regret any loss of life.”

That is not an offer by NATO to conduct an investigation; it’s a dismissal of the issue.  NATO will conduct an after-action review in the form of “lessons learned” – a quite essential and useful exercise for guiding future operations – but apparently not a formal legal review of targeting.  This seems to me a grave mistake, for reasons I’ll detail below – and particularly a lost opportunity for the United States.  NATO should conduct a legal review of targeting in the Libya campaign, and the United States military should likewise undertake its own review of all NATO targeting in Libya.   I do not find anything in the Chivers and Schmitt report that looks to be negligent under the proportionality standard for collateral damage in the laws of war.  Liability is not the issue or the reason for a formal legal review (I suppose it might arise in a very extreme case of gross and wanton recklessness, but the legal presumption in favor of the commander’s good faith judgment on issues of proportionality is profound, and that does not appear to be an issue in what the Times writes).

The real reason for doing this is, instead, that the Libya hostilities offer an opportunity for the United States to examine targeting standards as state practice.  State practice defended as lawful, as undertaken by the United Kingdom, France, and other allies, in an operation undertaken on their initiative, and with their own equipment, intelligence, legal officers, targeting standards and operational law.

This is an opportunity for the US to enunciate a legal baseline of state practice in targeting regarded as lawful in particular factual circumstances by its closest allies.  And to do so in circumstances that are not Afghanistan after ten years of war, but instead a new situation, with vastly less intelligence and other capabilities than are available today in the Afghanistan conflict. Circumstances, however, in which the targeting, and collateral damage, was regarded by our closest allies and friends as being fully compliant with the laws of war.  And a conflict in which the usual outside human rights groups were lobbying for it as humanitarian intervention, and so had far less incentive than usual to try and use the situation to raise the bar on what constitutes lawful targeting.

Thus, the fundamental reason US DOD should insist on an event-by-event legal review of targeting state practice is implicitly to reiterate that the standards applied in Afghanistan today are proper and virtuous – and also that they far, far exceed any legal requirement.  And that the US’s NATO allies demonstrated important state practice which they regarded as lawful in the conduct of the Libya operations.  Because the next time the US goes to war, it will likely be a lot closer in its initial intelligence and information about targeting to what just took place in Libya than what goes on today in Afghanistan.  The US should be able to draw upon the detailed, incident-by-incident state practice of its closest allies, and their defense of those practices as lawful, as support for its own conduct.

That’s my basic policy take-away – a plea to DOD to insist on a serious analysis of what was regarded in Libya as lawful targeting, including acknowledgment of its limitations and regrettable yet lawful collateral damage.  Ideally there would be an internal version.  But also, importantly, a public version aimed at emphasizing that the “commander’s discretion” under the law of war is real and that the laws of war provide a firm safe harbor for commander’s decisions on targeting – and doing so on the basis of evaluating the particular targeting practices in the Libya operation by allied NATO forces.

Below the fold, a little more discussion of the Times article itself and the crucial role of ground level intelligence in the conduct of drone warfare and targeted killing.

I have pointed out in earlier blog posts at both Volokh and Opinio Juris that Libya is an important marker of operational targeting law.  Chivers and Schmitt reach more or less the same conclusion:

The failure to thoroughly assess the civilian toll reduces the chances that allied forces, which are relying ever more heavily on air power rather than risking ground troops in overseas conflicts, will examine their Libyan experience to minimize collateral deaths elsewhere. Allied commanders have been ordered to submit a lessons-learned report to NATO headquarters in February. NATO’s incuriosity about the many lethal accidents raises questions about how thorough that review will be.

The lasting significance of NATO and US Defense Department review of targeting rules in Libya is different from what Chivers and Schmitt argue that it is, however.  They argue that the failure to investigate collateral damage incidents mirrors the early period of the Afghanistan war, and that it was on account of investigations of collateral damage that led in Afghanistan to tightening of the rules on targeting, thus reducing collateral deaths:

NATO’s experience in Libya also reveals an attitude that initially prevailed in Afghanistan. There, NATO forces, led by the United States, tightened the rules of engagement for airstrikes and insisted on better targeting to reduce civilian deaths only after repeatedly ignoring or disputing accounts of airstrikes that left many civilians dead.

One can debate whether NATO – i.e., the US – repeatedly ignored or disputed these accounts.  Far more important – and the real lesson of the debate over Libyan collateral damage – is that the tightening of targeting rules for airstrikes became possible over the course of that decade-long war mostly on account of two developments: better technology, such as drones and more precise weaponry, and crucially better intelligence.  Or, more exactly, the accumulation of far greater intelligence and means of gathering intelligence about Afghanistan.  One intelligence officer remarked to me a year ago that parts of Afghanistan are the most mapped areas on earth.  The intelligence gathering runs from physical, political, and social geography to human intellligence gathered on the ground – which is, by many accounts, the key reason for the US success with its counterterrorism targeted killing campaign – but the accumulation over ten years is a, if not “the,” crucial reason why the US has been able to shift to narrower and more demanding targeting standards.

I would recommend to any journalists reading this post that they read closely Gregory McNeal’s new article on the extraordinarily fine-tuned targeting and damage mitigation standards in Afghanistan today.  They have reached the point where “law” is not really an issue – the standards are so exacting that even one anticipated civilian death in a pre-planned operation requires the sign-off of the theatre commander or higher (at least as of that article’s final date).  It is obvious, however, that no such level of planning, review, collateral damage mitigation exercise, etc., could meaningfully take place for most of the Libya operation – not from lack of desire to minimize collateral damage, but from lack of accumulated intelligence of all kinds by which such review could have some real effect.

One can insist in a targeting review on any standards one likes, in other words, but if you don’t know a vast amount about the target environment, it won’t actually improve your targeting.  In Afghanistan at this point, that information includes detailed knowledge about the load-bearing of the earthen walls of compounds, anthropological surveys about likelihood of civilians in the streets after dark, and lots of other things that have never been imagined to be asked about Libya, let alone answered.

Although I don’t doubt that NATO/US officials wanted to avoid awkward questions about collateral damage early on in the Afghanistan war – who wouldn’t? – and although I don’t doubt that awkward questions helped raise the profile of the issue, the actual ability to do anything about it arose from technology, experience, and the accumulation of intelligence.  The technology can be transferred from one place to another, and so can part of the operational experience.  But intelligence accumulation, especially local geography in all its senses and ground-level human intelligence, as well as the operational experience that those convey with respect to the new precision technologies – no, those are not transferrable.  And note that the US ability to engage in its remarkably low collateral damage operations has required many years of patient, unsung work by both military intelligence and the oft-reviled CIA.

So the ability to make good on demands for lower collateral damage is in considerable part a side benefit of an entire decade of war.  If you want those kinds of possibilities in Libya, you need to have those kinds of intelligence capabilities on the ground.  If you don’t have them, but you think – on grounds of imperative national security, imperative demands of humanitarian intervention, or any other reason – that you must use force, you can set your standards as high as you like, you can conduct as many after-action reviews, you can bring in the ICC prosecutor.  Either you won’t attack at all, or else your targeting will continue to be less precise – by orders of magnitude less precise – than Afghanistan today.  Fixing the problem requires not just insistent demands for it, and not just technology – but detailed intelligence, which takes time to develop.  The key point is that targeting in Libya resembled Afghanistan in the early days because the intelligence framework was not there.  As for drones – they are an important element in gathering intelligence, but when it comes to firing missiles, the drone is the last kinetic step in a long process of intelligence accumulation.  The less intelligence, the less ability to use the drone precisely.

I worry that the US might be passively or inadvertently allowing the implicit legal bar to be raised regarding the quality of targeting.  In some of my conversations with JAG lawyers who have served as legal advisors on targeting, they sometimes take for granted everything that is now available for the Afghanistan theater – and assume that it will be there for every other situation.  It’s almost inevitable after a decade of fighting there – for many, their entire operational law careers have been framed by Afghanistan and Iraq.  It is hard to keep in mind that there will be other wars in which there is not a decade of intelligence built up over years and on the backs of many unfortunate and regrettable – but lawful – mistakes.

I’ve raised this occasionally in guest lectures at the JAG school, and I find there is often a palpable double-take when students think about what it would be like to arrive in a new conflict.  I think as well that there is much greater awareness of this issue precisely on account of the Libya fighting.   But I also hope there is long term awareness in DOD and other agencies of the need to remind the public that the legal threshold is much, much lower than what we are able to do in Afghanistan.  The casuistical, incident-by-incident analysis of state practice in Libya helps keep that in mind.  And a public release of a version of that analysis, in order to emphasize precisely those limits to the US and NATO’s interlocutors in the public and among the advocacy groups.

The volume of sheer, unadulterated nonsense zipping around the internet about the NDAA boggles the mind. There was a time–only a few months ago–when the NDAA detention provisions were the obscure province of a small group of national security law nerds. Now, however, this bill has rocketed to international notoriety. The added attention to it is a good thing. It’s an important subject and warrants genuine debate and discussion. The trouble is that much of the discussion is the intellectual equivalent of the “death panel” objections to the health care bill. While certain journalists have done a good job covering the controversy, it’s much easier to get bad information than good. The reader who wants answers to simple questions faces a confusing array of conflicting information.

Here then, as a public service, is an NDAA FAQ–a simple attempt to lay out the key questions people are asking about the NDAA and answer them as simply and neutrally as we can. Many of the answers here we have discussed in greater depth elsewhere on the blog. We will link to those posts for readers who want greater depth. This is an overview, a Guide for the Perplexed.

He attacks the false priests, the false nobles, the false landowners, the false artists:

In short, he attacks everyone!

Trained as a physicist, Emanuel Derman once served as the head of quantitative analysis at Goldman Sachs and is currently a professor of industrial engineering and operations research at Columbia University. With “Models Behaving Badly” he offers a readable, even eloquent combination of personal history, philosophical musing and honest confession concerning the dangers of relying on numerical models not only on Wall Street but also in life.

Mr. Derman’s particular thesis can be stated simply: Although financial models employ the mathematics and style of physics, they are fundamentally different from the models that science produces. Physical models can provide an accurate description of reality. Financial models, despite their mathematical sophistication, can at best provide a vast oversimplification of reality. In the universe of finance, the behavior of individuals determines value—and, as he says, “people change their minds.”

In short, beware of physics envy. When we make models involving human beings, Mr. Derman notes, “we are trying to force the ugly stepsister’s foot into Cinderella’s pretty glass slipper. It doesn’t fit without cutting off some of the essential parts.” As the collapse of the subprime collateralized debt market in 2008 made clear, it is a terrible mistake to put too much faith in models purporting to value financial instruments. “In crises,” Mr. Derman writes, “the behavior of people changes and normal models fail. While quantum electrodynamics is a genuine theory of all reality, financial models are only mediocre metaphors for a part of it.”

This is not a new critique; it is the core of that made by George Soros and his theory of “reflexivity” of markets; the core of criticisms made by social theorists of market relations.  But coming from Derman’s special place in finance, it carries special interest, and I look forward to immersing myself in it and giving my own assessment of the book.  Of interest from Burton Malkiel – I own most if not all of the successive editions of A Random Walk Down Wall Street – is his criticism of Derman’s presentation of the Efficient Market Hypothesis (or Model):

Nevertheless, Mr. Derman is perhaps a bit too harsh when he describes EMM—the so-called Efficient Market Model. EMM does not, as he claims, imply that prices are always correct and that price always equals value. Prices are always wrong. What EMM says is that we can never be sure if prices are too high or too low.

The Efficient Market Model does not suggest that any particular model of valuation—such as the Capital Asset Pricing Model—fully accounts for risk and uncertainty or that we should rely on it to predict security returns. EMM does not, as Mr. Derman says, “stubbornly assume that all uncertainty about the future is quantifiable.”

The basic lesson of EMM is that it is very difficult—well nigh impossible—to beat the market consistently. This lesson, or “model,” behaves very well when investors follow it. It says that most investors would be better off simply buying a low-cost index fund that holds all the securities in the market rather than using either quantitative models or intuition in an attempt to beat the market. The idea that significant arbitrage opportunities are unlikely to exist (and certainly do not persist) is precisely the mechanism behind the Black-Scholes option-pricing model that Mr. Derman admires as a financial model behaving pretty well.

Perhaps this is all that the EMH ever meant for Malkiel and other leading sophisticates of finance theory:  ”What EMM says is that we can never be sure if prices are too high or too low.”  Put that way, it is a demure theory, a sweet theory of downcast eyes and modest mien.  But I have two doubts.  One is simply that this is not what I took away from the general presentation of it by leading finance theorists in the 1980s, when I first learned it in classes at Harvard Law School and sitting in on classes at Harvard Business School and sitting in on my undergraduate girlfriend’s econ classes.  Perhaps I misunderstood drastically, but it seemed to be regarded as a much stronger proposition than that.  Indeed, in the hands of my law school corporate finance professor, it was not an empirical proposition so much as a logical one because it described the necessity of an equilibrium system and then imputed it to the real world, Dr. Pangloss-style.  As a former philosophy student, it troubled me as a logical move, but what did I know about finance?

Second, even if the leading finance theorists had some more modest theory than I took from my professors, as applied in the world at large, it did take on the characteristics of an a priori theorem grounded in logical necessity.  Like many subtle theorems applied mechanically, and without practical skill, it took on a life of its own and became its own authority.  One reason for this is that the version of the EMM that Professor Malkiel proffers above is purely a skeptical one – the inability to know.  To have application in the real world, it has to be converted from a proposition in skepticism to a positive proposition about a realm of bounded rationality; in making that move, however, we have gone a far, far distance in what we are proposing we might know and, moreover, we are apt to forget that the rationality of equilibrium applies only within bounds.  There is a reason that each time I read papers on the foundations of the EMH, I think mostly of my first classes in Skepticism and Rationality, not economics; it appears that Derman (like Soros) has that same reaction, more or less.

So I am not sure I agree with Professor Malkiel that Derman is overly harsh on the EMH as preached and applied in the world.  I think its strength – its epistemic status – has gone up and down in waves over the decades, and of course part of that is reflected in the successive discussions of it in Professor Malkiel’s own book (and I should add that his last book on practical investing is the only one I’ve ever handed to my daughter).   So let me put it to our readers:

What year did you first learn the EMH, what was the disciplinary setting (undergrad econ or business, grad econ, B-school, law school, etc.), and what was the strength of the proposition (not just the usual weak, semi-strong, strong, but its epistemic status – empirical thesis or logical corollary of equilibrium).  And does it appear to have been re-stated and re-formulated over the course of your awareness of it?  Comments are open.

PS. These comments are very interesting; I am interested in the actual years when you learned about the EMH and how because I think it (perhaps) has been framed somewhat differently at different moments over the last couple of decades, so the actual years matter.  In my case, in the early 1980s.  I should add two things.  One is that I revere Professor Malkiel, which is why I was intrigued to see him review this book.  The other is that there is a special, super-weak, but alas incontrovertible version of the EMH, viz., that neither Anderson, nor any Anderson gene-bearers, will ever beat the market.

Optimists: Daniel Bodansky (a preeminent international environmental law scholar who is a leading theorist of ways in which international climate change negotiations can overcome what might otherwise be seen as daunting collective action problems) offers the optimist position at the international law blog Opinio Juris.  He wrote a series of posts from Durban for OJ, which are well worth reading, and his latest post sums up the glass-half-full optimist view:

As compared to the expectations going in, the outcome was more than I think most people thought possible.  In a pre-Durban paper entitled “W[h]ither the Kyoto Protocol,” I identified three scenarios: (1) business-as-usual, with modest progress in developing the Copenhagen/Cancun framework and no political breakthroughs; (2) agreement to a “political” (not legally-binding) second commitment period under the Kyoto Protocol; and (3) agreement to a Kyoto Protocol amendment establishing a second commitment period, combined with a mandate for a new negotiating process to develop a legally-binding agreement addressing the emissions of the other major economies.  Many thought that (1) was the default option, (2) represented the best-case scenario, and (3) was politically unrealistic.  But the Durban outcome is in fact closest to (3):

• It wrapped up much of the remaining work to elaborate the Copenhagen/Cancun process, by adopting the governing instrument of the new Green Climate Fund and a transparency rules for both developed and developing countries pledges.
• It agreed to extend the Kyoto Protocol by another 5-8 years.  Although the emissions targets for Kyoto’s second commitment period still need to be worked out, and the formal amendment won’t be adopted until next year, the basic political decision to extend the Protocol was made in Durban.
• It agreed to launch a new negotiating process to develop a “protocol, another legal instrument, or agreed outcome with legal force,” addressing the post-2020 period  and “applicable to all Parties.”

The Durban outcome seemed unlikely because there was little indication that China and India would agree to negotiate a new agreement to limit their emissions.  Without agreement by China and India, the United States had said that it would not agree to a new round of negotiations.  And without agreement by the United States, China, and India, the European Union would not agree to a second commitment period under the Kyoto Protocol.  What allowed the Durban outcome was a careful compromise that gave BASIC countries, on one side, a 2020 start date for the new agreement and some ambiguity about its legal character (about which more below), and gave the EU, small island states and least-developed states, on the other side, early start and end dates for the negotiations (the negotiations will begin next year and conclude in 2015)  and language that the outcome of the new negotiations will have “legal force.”  Interestingly, the United States apparently played something of an intermediary role, since it had some flexibility about the issues of both dates and legal form.  In the end game of Durban, India was unwilling to accept a mandate to negotiate  a “protocol or another legal instrument,” and preferred the formulation “legal outcome.”  The United States suggested “outcome with legal force,” India added “agreed,” and the EU said ok.  Thus the deal was done.

Pessimists:  Michael Levi, a Council on Foreign Relations senior fellow, offers a different and far more pessimistic assessment.  He is particularly concerned to counter the fairly upbeat stories in the Western press on what had been accomplished, and goes to the nitty-gritty of the actual language of the Durban agreement – which is to say, what was actually agreed and not simply skepticism that whatever was agreed, down the road parties would nullify it through defection.

The Durban climate talks are over, and many are celebrating. After repeatedly reaching the brink of collapse, the summit produced agreements on several counts. The Associated Press reported that it approved a “landmark deal” that was “meant to set a new course for the global fight against climate change for the coming decades”. Christina Figueres, head of the system that oversees the talks, heralded the arrival of a “remarkable new phase in [the] climate regime”.

Nonsense.

Most of the agreed texts fleshed out matters left unfinished last year in Cancun: rules for a new climate fund, the structure of an international network of technology centers, a scheme for avoiding deforestation, and parameters for a system meant to increase the transparency of countries’ emissions-cutting actions. It is this part that will have the greatest substantive impact and is worthy of celebration. A climate fund with good rules, for example, is more likely to attract money and to use it well, while a sound system for auditing countries’ climate efforts will make it easier to create a virtuous cycle of action.

But it was not debate on these matters that took the talks to the edge, and it was not resolution of them that inspired the most applause. Instead, it was an agreement to initiate “a process to develop a protocol, another legal instrument or an outcome with legal force under the Convention applicable to all Parties” that has led commentators to conclude that there will be a new treaty that will legally bind all countries to reduce emissions. Alas, that conclusion is not warranted.

I myself have substantial doubts, given the state of public finances in the developed West, that the climate fund will work out as planned or as Levi hopes (Levi is no fool, so I don’t mean to suggest that he thinks it will actually work as advertised).  I myself view it as a sort of “stranded capital” or legacy of an earlier period in which, to use the melancholy phrase in Spain, “we used to be rich” - cuando eramos ricos.  This is not just a problem of broke countries who promise but don’t actually pay up when confronted with the problem of paying public pensions at home or facing riots. (Or, not to put too fine a point on it, Western countries borrowing money in Asian markets at substantial interest to contribute to global funds.)  It is, more broadly and over the long-term, the problem of conjoining three things:

• Climate change advocates and their tendency to treat their issue as though, from the standpoint of either the UN or the international development industry, it were the only thing now or ever in the history of the world.
• The UN and its history of identifying serial “It-Girls” that allow the UN to engage in massive calls for transfers from rich world to poor world, run through the UN rent-seekers.
• The international development industry and its desire to find new ways to justify big chunks of aid money.

Seen from the standpoint of the institutional UN and the international aid industry, in other words, rather than from a “this issue is unique” climate advocacy view, the central point of all these things is the climate fund and any other mechanism by which rich countries can be pressured, legally, morally, or politically, to transfer funds, through the rent-seeking conduits.  Which is to say, from the standpoint of the UN and the aid industry, there is nothing “unique” about this issue at all.  From a development standpoint, it was preceded by the Millennium Development Goals, by the demands for .7% GDP development assistance from rich countries, and more stretching back many decades practically to the founding of the UN.

These serial initiatives are not unique, because they all feature a compelling narrative that justifies substantial fiscal transfers via rent-seeking international actors and often new mechanisms of global governance to administer the fiscal transfer.  They also have another particular feature – when they don’t work or run out of moral imperative, then the UN leaves the initiative stranded and looks for something else.  The new “It-Girl.”

But, note to climate advocates: the UN never actually stops doing something or ends it, because one never knows how much residual value it might still accumulate and because there is always some bureaucrat to staff it.  But it becomes stranded capital; Cf. Jeffrey Sachs’ Millennium Development Goals.  Will the MDGs ever truly go away?  Does anyone care anymore, really?  Now ask yourself what makes climate change any different; maybe this one is really different, but as someone who studies not climate but the institutional UN, it doesn’t look that way to me.

Point of this digression being that although I share Levi’s close and skeptical analysis of the Durban text that follows next in his post, I am also highly skeptical of the fate of the climate change fund.  But note this sample of Levi’s analysis of the celebrated terms of the Durban language:

The first problem is with the word “treaty”, which appears nowhere in the agreement. Indeed some will insist that a mere set of formal decisions by the parties – like, say, the Cancun Agreements of last year – ought to qualify as an “outcome with legal force”; they may not have as much legal force as some would like, but surely one can argue that they have some. Perhaps this traps countries like China and India a bit: they can argue out of seeking a new instrument only by asserting that COP decisions have some legal weight. But one thing is clear: there is no commitment to seek a new treaty or protocol.

It’s also worth noting that, contrary to most media reports, the text’s requirement for “legal force” is broad, and does not necessarily need to apply to emissions cuts. It could, for example, be read to require that transparency provisions, rather than emissions cuts, have legal force. I would not be surprised to see the United States push such an approach.

Similarly, just because the text says that the new agreement must apply “to all Parties”, it needn’t have the same effect on all of them. The Kyoto Protocol, after all, also applied to all parties, just in very different ways. To be certain, this is a legalistic interpretation, and any country that tries to press it will probably suffer in the court of public opinion. In particular, the United States and Europe will point to the lack of any language on “common but differentiated responsibilities”, “equity”, or anything explicitly distinguishing developed and developing countries in the text, in order to claim that all must be bound similarly. But arguing for differentiation remains an option nonetheless, and it is one that developing countries will almost certainly avail themselves of. Indeed, after Copenhagen, the United States and Europe also claimed that the distinction between developed and developing countries had been abolished. That does not seem to have stuck.

Mitigators: Bjorn Lomborg sits somewhere in-between all of this.  Writing in the Wall Street Journal (behind the pay wall, but this link might work):

The Durban pit-stop in the endless array of climate summits has just ended, and predictably it reaffirmed the United Nations’ strong belief that the most important response to global warming is to secure a strong deal to cut carbon emissions.  What is almost universally ignored, however, is that if we want to help real people overcome real problems we need to focus first on adaptation.

The Durban agreement is being hailed as a diplomatic victory. Yet it essentially concedes defeat, leaving any hard decisions to the far end of the decade when other politicians will have to deal with it. For nearly 20 years, the international community has tried to negotiate commitments to carbon cuts, with almost nothing to show for it.  Even most rich countries don’t want to cut fossil fuels, because the alternatives are considerably more expensive. China, India and other emerging economies certainly do not want to, because putting the brakes on growth means consigning millions to poverty.

But even if such intractable issues could be magically resolved, any deal would have a negligible impact on climate. Even if we were to cut emissions by 50% below 1990-levels by 2050—an extremely unrealistic scenario—the difference in temperature would be less than 0.2 degrees Fahrenheit in 2050.

Let me freely reconstruct his premises a bit; they seem to me four-fold:

• First, the Durban outcome was essentially failure on any collective legal action on which one could reasonably rely, save perhaps something in the climate fund.
• Second, it would be imprudent to think that even legally binding outcomes would be adhered to as written, as a basis for conducting future policy; the collective action problems are too daunting and defection too tempting.
• Third, even the kinds of cuts contemplated in the best case scenario would have little impact on the climate change effects that are most likely to occur soonest; trying to prevent the most important effects on actual human beings by curtailing carbon at the front end is not just a political and economic non-starter, it is inefficient if the goal is to address the actual human harms.
• Fourth, therefore, the best approach is to seek ways of mitigating the actual damage likely to be caused, essentially at the back end, and seek better technological solutions over the long run.

On this view, the climate change fund could play an important “mitigation” role.  But that is only so long as it is aimed at particular, actual damage in the real world – rather than being how it seems to have been contemplated by the UN and poor countries, just another in the long series of arguments for large scale transfers from rich to poor, justified by reference to climate arguments, but really merely the latest in a long series of never ending reasons for the rich world to send more money.

Skeptics: Skeptical for these purposes means someone who is skeptical about the political-legal outcomes but also about the underlying issue.  So it is worth reading Reason’s Ronald Bailey, who was also at Durban; here is his latest short blog post.  Most interesting was the comment about the climate change fund:

The climate negotiators also agreed to launch the Green Climate Fund which will redistribute aid from rich country taxpayers to poor country governments with the goal of helping poor countries cope with climate change. At the Copenhagen and Cancun climate conferences, rich countries promised to suppy $100 billion in climate aid annually by 2020. However, how much of the $100 billion would flow through the Green Climate Fund is still not decided and how the Fund will be financed is also not decided.

The idea that rich countries will be ponying up $100 billion annually by 2020 seems to me the triumph of hope over experience, even if one assumes it were a good idea.  Which is to say (again, reading this as not about climate but about international organization rent-seeking and international development income transfers) recall that the Millennium Development Goals, when proclaimed back in 2000, were supposed to be funded to [IIRC; am not looking it up but this is ballpark] around $120 billion annually.  Substitution effects?  Does this sound quite so much like “climate change” anymore, or instead another grandiose UN development income transfer scheme?

[T]he [conference] language is the same as in the final Senate bill:

Section 1021(e)  AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

That is, the NDAA should not be read to express views on such questions one way or the other, but rather the matter if litigated should be decided under the original AUMF just as it would have been absent the NDAA. But note that the language is not sufficiently clear whether this rule of construction is meant to encompass citizens and LPRs captured anywhere, or just when captured in the United States itself. That is, should the “captured or arrested in the United States” clause at the end be read as modifying only the language “or any other persons,” or instead as modifying all three categories listed in that sentence?

Chesney goes on in a separate Lawfare post to observe that the “mandatory military detention” is not actually very mandatory:

Section 1022 of the Conference version of the NDAA carries forward section 1032 of the Senate version, which has been widely described as a mandatory military detention provision for a subset of detainable persons who are non-citizens linked to specific terrorist attacks. Both critics and supporters of the bill have focused heavily on this notion, lauding or decyring it. All of that is greatly overstated, however. The final bill applies to persons who are part of al Qaeda or an al Qaeda-associated force who is not a citizen and who was part of a particular attack or planned attack. Think Abdulmutalab. At first blush, it seems as if it channels such persons ineluctably into military custody, even when captured in the US. But on closer inspection that’s not at all the necessary result, for three reasons.

Read the Lawfare post to find out his three reasons.  Or, as Glenn Reynolds might put it, read the whole thing.  But in this case, the target is moving such that you have to read backwards and forwards.

The concern of the California bar committee that originally rejected his application seemed to have been rather more concerned with what it saw as sparse evidence that he was actually sorry for what he did or was instead merely strategic in the aftermath.  ”Fabulism,” after all, is a remarkably loaded, or if you like, unloaded way of describing what one might otherwise call bare-a***d lying.  Shafer is circumspect in his own views, but notes that a slew of law partners and law professors – including Opinio Juris’ very own Kevin Jon Heller – have all endorsed his fitness to practice.  He also, however, notes just how deeply unattractive a lot of Glass’s arguments are.  Let’s just say I’m not persuaded; however, the person whose opinion most interests me is the eminently decent and sensible Chuck Lane.

Glass actually won his appeal and had the bar’s panel rejection overturned by a California appellate judge; it takes four justices of the seven person California Supreme Court to take an appeal, so it suggests that there is some contrary concern there.  In any case, perhaps it’s in the original article and I missed it, and I do not know if this is true, but someone tweeted me to say that even without benefit of a law license, Glass is currently earning $154k as a paralegal.  Comments are open.

I am going to crib extensively from Robert Chesney, writing today at Lawfare.   (Lawfare, a project of the Brookings Institution and Harvard Law School, and founded by Benjamin Wittes, Robert Chesney, and Jack Goldsmith, is the go-to online daily journal on national security law; careful, measured, never crazy, and scrupulous about separating objective description from prescriptive comment.  I serve as the Reviews editor, full disclosure. Lawfare is currently doing a side by side comparison of the House and Senate versions of the bill, if you want the technical details.)  Says Chesney regarding military detention of US citizens:

On the day that the Senate passed its version of the NDAA, I wrote a post in the morning addressing whether the bill could be read to affirm that detention authority extends to US citizens. Reading the existing language of section 1031 in conjunction with section 1032, I concluded that the best reading of the bill was: yes, section 1031 encompassed citizens. Later that day, Senator Feinstein offered an amendment to the bill in an effort to preclude that outcome, by explicitly altering section 1031 so as to state clearly that citizens are not included. This amendment failed. Still later, she offered a fall-back amendment, altering section 1031 so as to say that it should not be construed as taking a position on the US citizen question one way or the other. That amendment was adopted, and is now part of the Senate bill as the conference on the NDAA gets underway.

Chesney then goes on to offer three scenarios in which the government could, in theory, attempt to hold a US citizen in military detention.  They are important to keep separate, and to attend to Chesney’s conclusion:

There are three scenarios in which the government in theory might try to use military detention with respect to a citizen, and the current state of the law is unclear as to two of them.

First, it might try to detain a citizen who is an arms-bearing member of the enemy’s forces in a foreign combat zone. Hamdi makes clear that detention authority does extend to that situation already, under the AUMF, and that this is constitutionally permissible (which is no surprise, in my view; In re Territo has long been a standard cite for that same proposition).

Second, the government might wish to detain a citizen found here in the United States, alleging involvement in al Qaeda or another AUMF-covered group. This issue arose with Jose Padilla, an al Qaeda member and U.S. citizen who was arrested on arrival at O’Hare Airport in Chicago and then eventually held for long period in military custody. He challenged that detention through a habeas petition, with mixed results. Suffice to say that the district judge felt that detention authority did not extend to this scenario, that the Fourth Circuit panel hearing his case somewhat avoided the issue by emphasizing the idea that Padilla previously had born arms on the combat zone in Afghanistan and thus was actually similarly-situated to Hamdi, that some observers were confident the Supreme Court would reverse, and that we never found out because Padilla was transferred to civilian custody in order to face prosecution (he was duly convicted and is now in jail). A similar case involving a non-citizen captured in the United States, Ali Salah Kahleh al-Marri, produced a similar result. In short, this is exactly what folks mean when they say that the status quo is unsettled on the question of authority to detain within the U.S.

A third scenario would involve an attempt by the government to hold in military custody a citizen linked to an AUMF-covered group who is captured outside the United States, but not in a hot battlefield context and lacking any prior connection to such combat operations. Say, for example, that Anwar al-Awlaki had been captured in a Special Forces raid in Yemen, rather than killed in a drone strike. We’ve not had a case like that yet, so it seems to me we’d have to say the law is at least somewhat unsettled as well.

So what does the NDAA have to say about any of this? Nothing at this point, thanks to the Feinstein amendment. For better or worse, the Senate version is explicitly agnostic as to these matters. If it is enacted with that qualification, then the government will be no more and no less able than before to assert detention authority over citizens, and the courts should be no more and no less likely to rule on the matter one way or the other.

So, strictly speaking, that describes military detention.  But the original question was about indefinite detention, so let’s be clear on the relationship.  Military detention points to at least the possibility of indefinite detention in this context because, broadly speaking, valid military detention is allowed until the conclusion of hostilities, which makes it potentially indefinite even without charges, trial, or judicial review, and absent any other consideration of law.  Here, from an earlier Chesney post at Lawfare, is how Feinstein described the conundrum and her own amendment to the Senate version of the bill (I’ve added some italics):

Despite my [Senator Feinstein's] support for a general detention authority, the provision in the original bill, in our view, went too far. The bill before us would allow the government to detain U.S. citizens without charge until the end of hostilities. We have had long discussions on this.  The disagreement arises from different interpretations of what the current law is. The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until “the end of the hostilities” which, in my view, is indefinitely.

Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court’s Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion’s express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.

So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side’s view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side’s interpretation, but leaves it to the courts to decide.

Because the distinguished chairman, the distinguished ranking member, and the Senator from South Carolina assert that it is not their intent in section 1031 to change current law, these discussions went on and on and they resulted in two amendments: our original amendment, which covers only U.S. citizens, which says they cannot be held without charge or trial, and a compromise amendment to preserve current law, which I shall read:

On page 360, between lines 21 and 22, insert the following:

“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.”

This compromise amendment passed in the Senate version of the bill.  As Chesney notes in this earlier post, there are other considerations of law regarding detention in any case, so that any detention authority has to be qualified at a minimum by habeas rights.  (Chesney is responding here to an article by Conor Friedersdorf at the Atlantic; he quotes from Friedersdorf’s claim that the NDAA would allow the President to indefinitely detain even US citizens without judicial review):

Specifically, [Friedersdorf] suggests that the bill authorizes the president to detain anyone whom the president simply declares to be a terrorist, without judicial review:

“Congress is poised to affirm that President Obama and his successors can imprison whomever they want, for as long as they want, on no authority but their own, so long as they first assert that the person in question is a terrorist. They needn’t present evidence, or persuade a judge, or get a majority of votes from a jury. Just whispering “he’s a terrorist” is enough.  Yes, even if the suspect is an American citizen.”

This is simply not so, however, given the availability of habeas corpus review. Any citizen held in military custody anywhere, regardless of where captured, will have such review. Any non-citizen captured in the United States will have such review. And though there is still uncertainly surrounding the question, it is most likely the case that any non-citizen captured somewhere other than the Afghan combat zone would get habeas review as well. Only combat captures of noncitizens in Afghanistan are, on this view, subject to executive discretion alone, as has literally always been the case in all combat zones in which the U.S. has ever taken prisoners.

Some readers will say in response to this that habeas review is mere window dressing, citing the string of victories the government has enjoyed in the D.C. Circuit of late. I disagree with that view very much. There is a lot of room for debate about whether the Circuit’s jurisprudence draws the line correctly in terms of figuring out what counts as proof that a person has become part of al Qaeda or the Taliban or associated forces, but the idea that the status quo leaves the government with discretion, in practice, to pretextually detain “domestic enemies” is simply not tenable, in my view.

I agree with Chesney’s view on the substantive issues above; there is one clear circumstance in which military detention of US citizens is permitted, and two legally unclear scenarios; there is also habeas review by the courts.  The Senate version of the bill does not alter that status quo, but kicks it back to the courts to decide as to the unclear scenarios.

Lastly, I’d add that in virtue of being statutorily prescribed as the court for hearing detainee appeals, the DC Circuit has emerged as something of the US’s de facto national security court; it has been gradually working out the contours and standards of habeas review and all the procedural and evidentiary questions that are implied by that.  If you want to follow the jurisprudence of the DC Circuit in these habeas and related cases, Lawfare is required reading for journalists, policy people, academics, and government officials.  (I’ve left comments on for this post.)

• Health care reform cases
• Same sex marriage in California
• Affirmative action
• Football
• Celebrity arrest

I don’t have an opinion; the legal issues I follow aren’t typically litigation oriented and are not much related to public attention; it doesn’t seem likely that the Alien Tort Statute in the Supreme Court would make anyone’s list but mine.  But this is a list not about true, deep  or lasting significance, whatever exactly that means, but about media and public attention.  It’s also not limited to SCOTUS.  Within that take on “big legal stories,” what is your list of five for 2012?  Comments are open.

The thing I found most surprising was not so much the university president salary as the average professor salary, and not just in places like New York or at the Ivy League.  Average and skewed by outliers, I’m sure, but just randomly eyeballing numbers, I was surprised at how well compensated professors are.  Again, just randomly clicking dots, these seemed like numbers I would associate with salaries at the professional schools, not institutions overall.  I’ve left comments open.

(Cranky Professor’s comments here, and Anon Jim in comments is right to distinguish salary from compensation. I remain surprised.  Also, a commenter suggests that the university is best understood as having tenured faculty and senior administrators as shareholders – correct or not? What is the right public choice model to account for the university and its governance?)

Yo soy la locura
la que sola infundo
placer y dulzura
y contento al mundo.

I was motivated to write about this topic because I sensed a major disconnect between the descriptions of the targeted killing process offered by commentators and what I knew to be the actual practice of the U.S. military in air to ground operations, in particular the rigorous steps followed to avoid civilian casualties through both the collateral damage methodology (CDM) and fairly protective Rules of Engagement (ROE). The paper is based on field interviews, documents released in litigation, training materials, official policy guidance released through FOIA requests, some WikiLeaked documents, press accounts and the standard fare of law review articles and other scholarly sources. The piece is empirical and descriptive; I take up the normative implications of my findings in a separate article entitled Collateral Damage and Accountability, which is not yet available in SSRN.

Much of the commentary about air launched targeted killing–especially the commentary that focuses on a “video game” style of warfare with unaccountable geographically remote pilots dropping bombs at their own discretion–simply does not describe the reality of current combat operations (I directly address the false claims about targeted killing in a forthcoming book chapter). To highlight one example of the reality I describe versus commentary we typically read, just consider the fact that in Afghanistan since at least June 2009, all air-to-ground operations are pre-planned operations unless troops are in an emergency situation requiring close air support (CAS), close combat attack (CCA) or the pilot is acting in self-defense. In both CAS and CCA in Afghanistan, the pilot may not deploy a weapon without ground commander direction, usually through a Joint Terminal Attack Controller (JTAC) (a JTAC is a person who accompanies ground forces and is specifically trained to direct accurate close air support to engage enemy targets while reducing collateral damage and civilian casualties). The pilot’s only discretion in current operations is to decide not to release a weapon, in other words the ground commander owns the battlespace not the drone pilot. Furthermore, Air Force leaders repeatedly emphasize to their pilots that they will not be disciplined for returning to base with all of their bombs on their plane. Air Force leadership will even support the decision of pilots not employ a weapon, even if that decision directly contravenes the orders of the ground commander. This reality is a far cry from the free fire zone of “video game” warriors described by many drone critics.

Because targeted killing operations by UAV are not CAS or CCA, they are pre-planned operations, and as such must be subjected to the military’s rigorous collateral damage methodology. That methodology is grounded in scientific evidence derived from research, experiments, history, and battlefield intelligence, and is designed to adapt to time-critical events. The CDM is a planning tool that assists commanders in mitigating unintended or incidental damage or injury to civilians, property and the environment and aids them in assessing proportionality and in weighing risks to collateral concerns. In the context of targeted killing, the CDM takes into account every conventional weapon a UAV could carry.

One of McNeal’s crucial observations is that although many of us who discuss targeting from a legal standpoint immediately turn to focus on the legal baselines of necessity, distinction, and proportionality.  However, if one looks at US military operations planning, there are many steps in seeking to estimate collateral damage and avoid it, long before reaching a legal analysis of proportionality under the laws of war:

[I]n the actual practice of modern operations there are a series of scientifically grounded mitigation steps that commanders undertake prior to engaging in any proportionality balancing.

The mitigation steps followed by the military are highly technical, however the best way to understand them is to recognize that the U.S. has an extensive database of weapons effects for nearly every conventional non-direct fire weapon in the U.S. military’s arsenal.  That database takes into account the blast, fragmentation and debris patterns of weapons when they explode.  This information, combined with knowledge about speed, direction of weapon employment, fusing techniques, and information about terrain and structures can be modeled in a way that allows for very precise estimates of weapons effects.  After positively identifying a target, the weapons effect data is converted into a collateral hazard area, and trained specialists will determine whether or not there are any collateral concerns within that area.  If so, mitigation techniques must be employed to reduce the likelihood of harm to collateral concerns.

For example, the military can predict that a 1,000 pound bomb dropped in a certain place within a structure will kill everyone within Room 1, and everyone in Room 2, and not harm anyone in Room 3.  A mitigation technique might be to use a 500 pound bomb, or bury the bomb in the ground prior to detonation, or detonate the bomb in the corner of Room 1, at a point farthest from Room 2.  Any of these mitigation techniques might ensure with a high level of certainty that the persons in Room 2 are unharmed.  Of course, in light of this precision, the biggest challenge is an intelligence challenge.

Note this quite extraordinary conclusion about how high a level of approval is required for any anticipated civilian deaths in Afghanistan in 2010:

[I]n Afghanistan circa 2010 … if even one civilian casualty was expected in a pre-planned strike, that strike would have to be authorized by the Secretary of Defense or higher (although some reports indicate that this authority has since been delegated to the CENTCOM commander).

This is remarkable.  But it is also a testament to just how much intelligence and information can be utilized in Afghanistan operations today – after, however, a full ten years of war.  I have some concerns that these standards be taken as the norm for future operations elsewhere, where the intelligence and information is not available in such a wealth of detail to allow these kinds of detailed estimates.  NATO operations in Libya had nothing like this wealth of information, or precision in the actual strikes.  (Indeed, it seems to me as a salutary exercise for the US military to carry out a thorough legal review of the actual targeting practices deemed lawful by NATO militaries, particularly France and Britain, as a baseline of what was regarded in actual tactical engagements as lawful state practice.)  Future US military operations elsewhere will not start out with the informational and intelligence inputs that the US has in Afghanistan today.