The Volokh Conspiracy

I’ve refrained so far from commenting on the Liz Cheney – AQ7 ad, but I want to make one lengthy statement on it and, I hope, leave it at that.

(Background to this kerfuffle.  At this point, there is the initial AQ7 ad, then a group response letter drafted by Ben Wittes of the Brookings Institution and my co-task force member at the Hoover Task Force on National Security and Law, which I also signed.  That response letter, which sharply took the ad and its promoters to task, prompted a fair amount of congratulatory commentary on the liberal and progressive side, including a front page New York Times story commenting on it.  It also prompted, however, equally sharp responses from conservatives, particularly at the NRO The Corner blog, and particularly Andy McCarthy, Marc Thiessen, and others; later, there was some pushback to some of the stronger views expressed by Andy and others at the Corner itself, by Jonah Goldberg and others.  The Wall Street Journal – with many friends on both sides of the conservative debate, including Andy McCarthy on one side and David Rivkin and Lee Casey on the Wittes letter – offered a sensible disentangling of the issues.)

My feeling is much that of the editor of one politics journal who remarked to me, “Our goal is to stay out of the crossfire on this.”  I was greatly pleased to sign the letter drafted by Ben Wittes, and honored to be asked – but the names that truly matter on that letter are those of prominent conservatives, particularly former senior Bush administration officials and lawyers.  Not academics like me who are not big fish within the pond to which that letter is addressed – national security conservatives and centrists.

I’m going to break radio silence on this, however, for what I trust will be this one, lengthy statement (mostly below the fold; I will add some links later).  The reason is that I have received a surprising number of emails and messages – some congratulatory and some critical from conservatives, but also a surprising number of congratulations from friends on the progressive left, telling me how proud they are of me.  To be clear, I appreciate the general sentiment and like praise as much as the next professor, but alas, I have to say that these well-intentioned missives largely miss the point.  The writers believe they are expressing solidarity with me and with the sentiments behind the letter.  Some in fact do echo the views of the letter, taken in toto. But others – most of the ones received – do not.  Why not?

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Well, the emails from progressives principally express two things, neither of which is truly an expression of solidarity with the Wittes letter.  To start with, many merely express satisfaction that I, and the other letter writers, have come round to understand that this whole ‘war on terror’ stuff is a bad, if not wicked, policy, and a fantasy to boot.  That misses the point of this letter pretty much entirely.  It is as though the note-writers decided to appoint themselves honorary signers of the Wittes letter without actually reading it.

No one signing the letter, so far as I know, has recanted their views on any fundamental national security issue that underlies it.  Those views differ hugely as between individual signers. But one thing that probably does stand as common, substantive ground among all the signers (it is what makes the signers, in this setting, “centrists” and “conservatives”) is a belief that national security and civil liberties are each fundamentally important – but they inevitably require tradeoffs. This marks a difference with the civil liberties and human rights advocates on these issues. That’s so, whether the civil liberties advocates reject the idea of tradeoffs between rights and security straight-out – or else formally accept the idea of tradeoffs, but then structure the tradeoffs so that they aren’t in the end tradeoffs at all.

Either way, that’s not finally the position of this letter.  As Ben Wittes has written in his book, Law and the Long War, it’s certainly morally consistent to always come down on the side of civil liberties and human rights.  It is possible, in some better possible world, that the two involve no contradictions.  But as far as the signers of this letter are concerned, it’s not our world.  More to the point, if anything like that is your assumption, you’re not on the same page as the signers of this letter, and your expressions of congratulation, however sincere, are beside the point.  You’re not actually congratulating me, I’m afraid – you’re congratulating yourself, for holding the views you hold. Continue reading ‘No Righteous Gentile Awards, Please’ »

I’ll post up something fuller on my views about the AQ7 debate, but for now, here is my contribution at the New York Times’s “Room for Debate” blog.  (Like Orin, I’m a signer on the original letter objecting to the AQ7 ad.)

I’m writing from Cambridge, where I just finished a great short conference on targeted killing and drone warfare put on by the Harvard Law School National Security Law Society and Journal. The  presentations should go up as video one of these days I hope!) and I highly recommend them if you are studying this topic. Particularly for us lawyer types, the presentations by engineering professor Missy Cummings and Kennedy School professor Tad Oelstrom – both former military aviators, among many other things – was highly informative about the real world of UAVs in military use. My thanks to all the students who put the conference together – we had a lovely dinner afterwards, and I enjoyed the conversation with them a great deal. My thanks to the law school as well for funding it – times are tough, even at places like Harvard – and I appreciate the dean and the school’s willingness to continue hosting events that allow for important legal and policy discussions to go forward.  (Delayed a couple of days posting this – travel and then internet problems at home.)

I tried to use my time at the conference to think through some of the questions I’ve been raising both in my first published piece on this subject, Targeted Killing in US Counterinsurgency Strategy and Law, and in the long opinion essay in last week’s Weekly Standard, Predators over Pakistan. I’m going to do a series of posts extending some of those discussions.

Probably the most important conclusion for me from discussions following my Predators over Pakistan essay is that I have not been sufficiently clear, with myself or in writing, that the appeal I am making to self-defense law does not preclude the application of the normal laws of war in those places where there is an armed conflict. Discussion of this topic seems a little bit like the blind men and the elephant – the military people responsible for a counterinsurgency ground war in Afghanistan see Predator strikes in their theatre of conflict, quite rightly, as not a big issue. It is not different, really, from the missile fired by a jet 25 or 30 miles away – it’s just another standoff platform. The legal rules of targeting are no different, and it’s just another standoff firing option.

At the other extreme, however, is the CIA using Predators to attack a targeted designated by the President under procedures outlined in US statutes for covert action by the CIA. Is that different, legally? US forces are in an armed conflict with Al Qaeda, and members of AQ, combatants if we find them in Afghanistan, flee to Somalia – so we chase them down there and fire at them with Predators run by the CIA. Why isn’t that just more of the “armed conflict”?   Same rules apply – geography is not really an issue.

I have argued that geography matters, not for its own sake, but rather more precisely, because in establishing whether you have an armed conflict to which the laws of war apply – displacing other regimes of law – you have to meet a threshold of active, sustained, etc., etc. hostilities and fighting (I’m not looking to be strictly precise here) if, as the US has said, particularly in the SCOTUS analysis, it is a non-international armed conflict with a non-state actor. I don’t think SCOTUS got it right. Moreover, it led to the unintended consequences of result-oriented jurisprudence, the Court seeking to find a basis on which to apply the standards of CA3, and leading the Court to conclude that a provision envisioned entirely (read Pictet) about internal civil war could apply by ignoring the territoriality phrase in CA3 to focus instead solely on the non-state actor part. I think the Court should simply have said that CA3 standards apply as some universal baseline standard irrespective of armed conflict, and it should left aside how it intended to get there, but it didn’t. It was not well-briefed on the issue, and waded into deep waters about the law of armed conflict with implications for many other important parties in the world.

Viz., it appears that territoriality is an issue after all. I don’t think the Bush administration got it right by defining the conflict as the “global” war on terror – it is one matter on which I agree with the critics, whether academics such as Mary Ellen O’Connell or organizations such as the ICRC. Nor can the AQ case be assimilated to WWII and chasing combatants around wherever they go – if you take the treaty language seriously, and the customary law intended by the United States and other states when drafting CA3 to keep the threshold of a non-international armed conflict high, then, yes, it matters legally that WWII was an international armed conflict and the AQ war a non-international one with a non-state actor. It seems anomalous, because despite the non-international language, we are following them around the world, but we have legally decided to focus exclusively on the non-state actor part, in order to apply CA3. If that is the case, then the customary law threshold matters. Continue reading ‘Drone Warfare and the Harvard National Security Conference’ »

Well, “polemic” is probably closer to it.  Regular readers have been hearing about this piece for a while, and I have posted various arguments from it (concerning targeted killing and Predator drones and the CIA and armed conflict and self-defense, and my general concern that the Obama administration has embraced a policy that its lawyers have not so far stood up publicly to defend as lawful against its gradually emerging critics in the international “soft law” community) here at Volokh and over at Opinio Juris.  I will post a couple of comments on the piece later, including of couple of things I wish I had clarified or said differently (and open it up for comments then).  Meanwhile, if you are interested, it is the cover in this week’s Weekly Standard (March 8, 2010).  It is also very, very long, at some 8,000 words – for which I am deeply grateful to the WS’s editors but you perhaps will not be – and so you might find it easier to read a pdf of the print edition at SSRN.

David Rittgers, a Cato legal analyst and former Special Forces officer, has an excellent op-ed in today’s Wall Street Journal on the use of Predator drones.  He cautions, on the one hand, against reflexively regarding drone attacks as nonjudicial execution or, really, functionally different from other weapons that soldiers might use – as well as cautioning against the idea that Congress or courts could somehow micromanage the use of these weapons.  On the other hand, he cautions against thinking that the problem of drones is that the US should be seeking to capture rather than kill because of the loss of intelligence; he notes that operationally, there are many reasons why capture is very often infeasible.  It’s a good piece, measured and sensible, and I highly recommend it.

I’ve been quiet around VC in the last little while as I, too, have been writing about Predators and targeted killing – expanding and moving beyond my book chapter from last year  on this topic.  Barring some big news on health care or some such, the Weekly Standard will be running a piece from me next week arguing something I’ve developed here at VC and at Opinio Juris blog:  first, that the administration’s lawyers need to step up to the plate and defend targeted killing using Predators and, second, the proper legal basis on which to defend it to the full extent undertaken by the Obama administration is the international law of self-defense, rather than simply the law of armed conflict, targeting combatants.

In another piece coming soon (this one a book chapter in a Hoover Institution online collection of essays from the Hoover Task Force on National Security and Law), I will be arguing a further step in this – one which relates to Rittgers WSJ op-ed.  Underlying much of the argument over drone warfare is a submerged factual and normative frame about who, what, and where.  Rittgers, for example, is drawing upon his extensive experience as a Special Forces officer, and reserve judge advocate, with three tours in Afghanistan, to point out that it is a mistake and really not possible to micromanage military operations in the field.  Nor is the use of a missile fired from a drone in battle significantly different from a missile fired from a manned aircraft, or a helicopter, or some other place.

Critics who call the practice extrajudicial execution, however, are frequently focused upon another scenario.  The version of it furthest from the hot battlefield scenario is a CIA directed drone missile strike upon a target in a compound far away from any theatre of active fighting, such as AfPak – someone in Yemen or Somalia, to take the obvious examples.  From the critics’ standpoint, it is a bit of bait and switch to defend drone missile attacks on the basis of their use on a hot, active battlefield, or even in a general theatre of conflict – for which, the critic will note, one might or might not include the “Pak” part of “AfPak” – and then turn around and say, therefore, a CIA attack in Somalia is similarly okay.  From the critics’ view, even if the theatre of conflict use by uniformed military is okay on traditional military targeting terms (and for the human rights monitors, it likely is not – or, more precisely, permissible in principle, but somehow not in any particular circumstances), that is not the same as the CIA’s global reach.  From the critics’ point of view, that is, what goes on operationally at ground level in Afghanistan somewhat misses the point.  From my view, too, what needs to be defended as legal policy by the United States is not principally that use of drone attacks – that is not at that point so much questioned, although perhaps I am too sanguine about it – but instead the CIA, covert action as a category, and targeted killing outside of the traditionally understood idea of  a zone of armed conflict.

This is one of the reasons that I regard the proper legal basis for Predator targeted killing to be the law of self-defense – it is what the Obama administration really intends, if it is not to fall back into the idea of a “global” war on terror, and yet also intends to preserve the traditional sovereign legal right to strike at non-state actor terrorists in their safe havens, if the relevant state cannot or will not deal with them.  The President and Vice President have said repeatedly – and in so doing, merely re-stating what ever president has asserted since transnational terrorism rose as a threat to Americans – that the US will take the fight to the terrorists, and pointedly said wherever that is and that terrorists will not be allowed safe haven, and that the US will strike on the basis of the terrorists’ intentions.  Nothing new in that, but the legal basis for the United States to do so is different from the legal basis on which it is lawful to use drones and missiles from drones in a theatre of active armed conflict.

The legal, normative, and moral arguments over drones, then, are not so much about hot battlefields, nor even largely about theatres of active armed conflict.  The arguments are about the use of drones and targeted killing by the covert services, the CIA, beyond those confines.  Understood that way, this is about drone warfare as a form of strategic airpower.  The attempt to dominate from the air on a global, or at least potentially extensive geographic, basis using unmanned airpower.  Not all of this is about counterterrorism or the use of smaller and more discriminating, person-specific weaponry.  The Israelis officially unveiled their massive, airliner sized drone aircraft, the purpose of which is presumably to be able to strike at nuclear facilities in Iran – not about targeted killing, but the classic projection of strategic airpower.

Again, one way of understanding the strategic frame is as strategic airpower – leveraging military capital over labor through drones, with the intention of developing a counter-raiding capability that extends over an ever greater geographic range, whether for large-weaponry anti-facility attacks or small-scale anti-individual targeted killing.  Strategic airpower has long been a holy grail – but it has never worked quite as successfully as each new iteration hopes.  The “light footprint” strategy based around counterterrorism, over the horizon drones and missiles, might or might not be a winning strategy; it might be, rather, that counterinsurgency through boots on the ground and denial of territory for safe havens is required, as many have believed in any sustained guerrilla conflict.  I don’t know the answer to that question; the administration’s long delay in determining its Afghanistan strategy was presumably, at the most abstract level, about answering exactly that.  What is clear is that whether pure counterterrorism without on-the-ground counterinsurgency, or counterinsurgency to control territory and population, drones are going to be important.

Put another way, particularly as they are used outside of the active counterinsurgency theatre of AfPak, drones, with sophisticated surveillance gear but also missiles, act as the lightest of light cavalry.  They probe, surveil, and engage in pinprick attacks, behind enemy lines, far beyond one’s own lines.  When the CIA engages in targeted killing against some Al Qaeda operative in Somalia, from a strategic perspective, it is a combat raiding strategy by very light cavalry indeed.  But it is so far beyond one’s own lines, as it were, that from a legal standpoint, I would place it beyond the legal “armed conflict” altogether and treat this combat raiding use of force, as a matter of law, as an exercise in lawful self-defense.

But this will get discussed (in numbing detail, I’m afraid) in the Weekly Standard piece.  How’s this for my proposed title – likely to be shot down – Predators over Pakistan, Lawyers over Langley?  :)

Harold Koh, Legal Adviser to the State Department, held an informal public discussion a couple of days ago with his predecessor from the Bush administration, John Bellinger.  This was an American Society of International Law event, held at John’s law firm, Arnold & Porter, and moderated by my old friend and ASIL’s Treasurer, Nancy Perkins.  CSPAN covered it, and the video is now available:  The Obama Administration and International Law, February 17, 2010.  (If I can find a youtube version from ASIL, I’ll see if I can embed it.)

I was teaching and so could not attend in person, but I have now watched the video and it is a terrific event.  My public thanks to Harold Koh, John Bellinger, and Nancy Perkins for doing it. It’s a good thing for an administration’s senior lawyers, who have a difficult task of both setting out legal policies and often highly abstract and complicated legal arguments – and at the same time communicating them to the public, in part the professionals and lawyers and diplomats, but also to a broader public.  While John was adviser, he experimented with entirely new avenues of discussion and communication, including a guest blogging appearance at Opinio Juris international law blog that was very well received.  Harold Koh has also been doing some experimentation with different avenues of communication, and this kind of unscripted, informal discussion is an outstanding example of that.

(One note I would add is that a very great virtue of this kind of unscripted event is that it is informal, and not every word, phrase, and utterance has been vetted and run through the law-machine for alternative interpretations, and so on.  So although I strongly urge everyone to watch the video closely, I believe equally strongly that one has to adopt a charitable interpretation of what the speaker intends, and not focus on individual words or phrases that, in a formal speech or court filing or testimony, might be far more carefully – but less informatively – phrased.  So, for example, when Justices Breyer and Scalia held a discussion at my law school a few years ago on constitutional comparativism, in writing about it, I declined to quote them directly, preferring to paraphrase, precisely because I thought direct quotation was a disservice to the informal spirit of the occasion.  To hammer on precise words in impromptu settings simply causes lawyers to be ever more circumspect and less forthcoming, and to limit their statements to much less useful formal occasions.)

The conversation ranged across a wide variety of issues, including something that Julian Ku noted over at Opinio Juris blog (where I’m cross-posting) with respect to DOS international law counsellor Sarah Cleveland’s recent University of Virginia Law School speech on the Obama administration and international law – the pace of treaty exchanges.  John flags Dean Koh on that issue, saying (my summary) that in 2007-2008, the State Department got the Senate to approve more treaties (a record 90 or thereabouts, I believe) than at any point in American history.

On the broad question of whether the Obama administration’s international law policies represent continuity or change, Dean Koh suggested somewhat wryly that to the extent that the old policies were good ones, they were being continued, and to the extent they weren’t, they were being changed.  But Dean Koh also pressed the general theme that the Obama administration inherited policies, practical as well as legal, from the previous administration and turning on a dime wasn’t very easy.

Dean Koh was asked about targeted killing, including a specific question about targeted killing aimed at American citizens.  The exchange takes place at approximately minutes 58-65 in the tape.  The context is a question from someone – I believe, but couldn’t quite hear the feed, from an NGO – unhappy with targeted killings of American citizens, and wanting to know, among other things, whether an American citizen would have the right to contest the evidence against him in a court.  I raise this because Dean Koh’s response was being directed to someone who had strong views, apparently, that the practice, particularly against Americans (who, in the view of the US government, had made themselves liable to attack by joining with groups in hostilities with the United States), was unlawful.  The nuance, in other words, might have been different had it been someone, wanting to know why the State Department wasn’t out in front defending targeted killing as a practice.

Dean Koh’s response was interesting, in that he noted that he had served in both Republican and Democratic administrations, and as a human rights lawyer had sued both Republican and Democratic administrations.  He added that he already a permanent job, and so in effect (I paraphrase) he wasn’t beholden to anyone in formulating his legal views.  He went on to say that he would leave the government if he concluded that targeted killing was illegal.  He did not say that he had concluded that it was legal, but that he would leave if he concluded that it was illegal and, (my) presumably, if that conclusion were not accepted by the administration.  Having said that, however, he added that he was still there. Continue reading ‘Harold Koh Discussion with John Bellinger on International Law and the Obama Administration’ »

In December 2001, then-Attorney General provoked howls of outrage when he made the following statement at a Congressional hearing:

To those who pit Americans against immigrants, citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends. They encourage people of good will to remain silent in the face of evil. (emphasis added)

While some think Ashcroft’s remarks were misinterpreted (including some of us at the VC), there was widespread agreement that it is inappropriate for government officials to suggest that criticism of or dissent from government policy is unpatriotic.

This past week, deputy National Security Advisor John Brennan made a similar statement in a USA Today op-ed.

Politically motivated criticism and unfounded fear-mongering only serve the goals of al-Qaeda.

While some conservatives have objected to this remark, the broader response has been somewhat muted, particularly from the civil liberties community.  What explains the difference?  Is Brennan’s comment less inflammatory or objectionable?  Is the broader context in which the comment was made — debate over specific counter-terror efforts as opposed to broader policy measures — less threatening to civil liberties?  Or is this just Kerr’s Law in action?  While I think some of the GOP response to Brennan’s comment is overdone, I felt this way about the response to Ashcroft’s remark as well.

In response to political blowback over the Administration’s decision to try Khalid Sheikh Mohammed in New York City, President Obama has decided to become personally involved in determining where KSM should be tried. The Washington Post reports:

President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001, attacks, three administration officials said Thursday, signaling a recognition that the administration had mishandled the process and triggered a political backlash.

Obama initially had asked Attorney General Eric H. Holder Jr. to choose the site of the trial in an effort to maintain an independent Justice Department. But the White House has been taken aback by the intense criticism from political opponents and local officials of Holder’s decision to try Khalid Sheik Mohammed in a civilian courtroom in New York. . . .

Administration officials said the president’s involvement has to do with securing congressional funding for the costly trial before bipartisan efforts to strip financing for the case against Mohammed and four alleged co-conspirators gain greater momentum. They said it was a matter of national security, not just politics.

Senior White House officials said that the decision to try Mohammed in New York was Holder’s and that no single person in the administration was responsible for handling the politics of that choice. In an effort to avoid leaks, Holder kept the decision close in the days leading up to his Nov. 13 news conference, calling New York officeholders that day to inform them. Several New York officials said they have dealt exclusively with Holder, first during the rollout of the announcement and more recently as he struggles to find another venue. . . .

Obama gave little clue about how the administration will proceed when he was asked Sunday about the trial. But he made clear that, in a shift from last year, he is now part of the decision-making process, saying in a CBS interview that Manhattan was still an option. “I have not ruled it out,” Obama said.

Like former Bush Justice Department offiicals James Comey and Jack Goldsmith, I think some of the criticisms of the Obama Administration’s decision to try KSM in a civilian court are overblown.  If trying KSM in New York City is substantially more expensive that potential alternative venues, however, I think it reasonable to move the trial elsewhere.  But I question whether it is politically advisable for the President to assume such direct responsiblity for the trial’s location.

The title is actually from Nick Baumann’s article at Mother Jones.

On Tuesday morning, Sens. Jim Webb (D-Va.) and Blanche Lincoln (D-Ark.) teamed up with Graham for a press conference to announce a bill that would block funding for Obama’s proposal to try 9/11 co-conspirators, including Khalid Sheikh Mohamed, in civilian courts.

By expressing full support for Graham’s measure, Webb and Lincoln are essentially moving into open revolt against the White House’s detainee policy. Lincoln, who faces a tough reelection fight in Arkansas this year, said she would be foolish if she didn’t listen to her constituents and oppose the 9/11 trials. Webb insisted he was not opposing the trials because they could be held in his home state of Virginia if New York does not prove to be a feasible venue. “I wrote a column on 9/12″ calling the conspirators war criminals, he reminded reporters, implying that he has always prefered the detainees to be tried in a military setting.

After the press conference, Graham didn’t refute a suggestion from reporters that he also has the votes of Arkansas’ Mark Pryor and Washington’s Maria Cantwell. Pryor, Cantwell, and all 40 Republicans joined Webb and Lincoln in supporting a similar measure pushed by Graham in early November. The Senate rejected that measure, 55-45. But Graham said he was sure his bill would pass “overwhelmingly” this time around if it ever came up for a vote.

A couple of thoughts on this.  First, as Baumann says, it’s not just a Gitmo rebellion, at least, not in the sense of merely saying something about where a trial will be held – New York, Guantanamo, or anywhere else.  It is, more importantly, a question of whether the trial of KSM and potentially others will be civilian, in the Federal courts, or by military commission.

Second, one of the ironies of having legislators potentially act in these ways is that it means that Congress might at last be getting involved in something that it has wanted to avoid getting involved with for years and years.  A lot of people have pointed out that Congress seems never to want to have to put itself on the line in this national security stuff – Jack Goldsmith, Ben Wittes, Stuart Taylor, me – have all said this one way or another over the years.  Only the President, as Jack pointed out in his book, has the ability to make Congress step up to the plate, but the Bush administration (in one of its deepest failures of institutional process) never wanted to do it and, today, neither does the Obama administration.  So it is somewhat ironic to see at least some members wanting to take over a question of fundamental war on terror policy now.

(I should add, too, that if you read to the end of the Baumann’s article, you’ll see that he doesn’t actually share many views with me; I don’t want to impute any of my views to him.  As regular readers know, among other things, I favor a national security court, as well as an administrative detention arrangement established by Congress but not under military jurisdiction.  And many other equally un-Mother Jonesish things.)

But now, one last thought.  There are a number of attorneys working for the Obama administration, one way or another connected to detainee policy, Guantanamo, interrogations, all this kind of stuff.  Most at DOJ, I suppose, but others at other agencies.  Numbers came from academic positions, or think tanks or advocacy groups – but many with of course very strong views on all the many things they saw as having gone so wrong with Bush administration policy.  And the promise of fixing many things, if not everything.

Policy has not changed all that much, however.  Partly policy has not changed within the administration – at least not big pieces such as Guantanamo closing, the possibility of long term detention of people who will not be charged or tried, etc.  And now at least the possibility of Congress changing even big pieces that the administration did change, such as the venue for the KSM trial.  I wonder whether some of those attorneys will wind up leaving the administration.

If you think about it from their career and personal perspectives, you might think that, well, I’ve been here, done that, gave it my best shot, got whatever resume value there is to having served in the administration, and now … things don’t appear to be on a path to change in these areas all that much.  Don’t I wind up simply hurting myself back in my home space of the academy, or NGOs, etc.?  Hanging around having to defend policies that I don’t like and that it doesn’t appear will change?  Do I really want to be part of a walkback on KSM, for example, if that happened?  Wouldn’t I do better to leave – and then find ways to attack the policies from the outside?  I have no idea, except for a couple of conversations in passing, but they made me wonder.

AG Eric Holder has released a letter to a group of Senators wanting an explanation for, among other things, the decision to Mirandize the Christmas Day bomber.  I’ve read it quickly and guess I’d describe it as doubling down on the administration’s actions, rather than walking them back.  Holder takes responsibility for the decision:

I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments of the government …

The letter goes on to offer a defense of the criminal justice process as being a form of national security, and defends the idea that law enforcement questioning can produce important intelligence.  It ends with a statement that the United States is at war, and then re-states the core argument.  That core argument is that since the country is at war, the tools of law enforcement and criminal justice – including those for questioning suspects, including those that have been Mirandized – are part of the arsenal of tools available.  Not to use them, or to take them off the table, would be as much a mistake as not availing ourselves of the weapons of war. Continue reading ‘Eric Holder Letter to Senators on Abdulmutallab’ »

Marc Ambinder has an interesting post on a yet-to-be-released, classified Office of Legal Counsel memorandum on the FBI’s authority to seek the “voluntary” disclosure of some records by telecommunications companies.  The memo was issued on January 8, apparently in response to a request from the FBI, and is referenced in an unredacted portion of this DoJ Office of Inspector General report on the FBI’s use of Exigent Letters and other informal requests for telephone records from telecommunications providers.

I just finished up the initial draft of an essay for the Weekly Standard on drone warfare, self defense, and the CIA, riffing off of my chapter in Ben Wittes’s book.  One of my observations is that the Obama administration (and really the whole US government) seems to be remarkably sanguine about the other shoe dropping regarding the emerging “soft-law” campaign to undermine both drone warfare and, remarkably, the very idea of CIA covert action.  So I was interested to see this closing paragraph in former CIA director Michael Hayden’s Washington Post op ed on the Christmas bomber non-interrogation:

In August, the government unveiled the [High Value Detainee Interrogation Group] HIG for questioning al-Qaeda and announced that the FBI would begin questioning CIA officers about the alleged abuses in the 2004 inspector general’s report. They are apparently still getting organized for the al-Qaeda interrogations. But the interrogations of CIA personnel are well underway.

My prediction is that the something similar will be true, but in the form of investigations and prosecutions in European or foreign courts, or possibly some ICC prosecutor investigation in Afghanistan, of  CIA personnel and their role in Predator drone strikes within two or three years after the Obama administration leaves office.  Perhaps Intrade could set up a prediction market contract? 

Update:  Thanks, Glenn, for the Instalanche – and readers might be interested in the related topic of strategizing such a prosecution comes about, in an earlier Opinio Juris post called “Gaming Spain and Universal Jurisdiction.”  What a friend at the State Department called “cynical,” I call … game theory!

This won’t be as exciting or informative as the title suggests, apologies [although it turns out I have said rather more than I was going to; you can read an even longer version of my views at SSRN here].  The front page of the Washington Post carries a story from Dana Priest on US military and intelligence agencies’ involvement in Yemen (Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, WP, Wed., January 27, 2009, A1).  It is very well sourced and quite even-handed; in particular, the story does not spread the current journalistic meme, a la Eric Schmitt, of a “vengeance” campaign by the CIA.  It refers in part to the US, via the US military’s Joint Special Operations Command (JSOC), adding a US citizen, a radical Islamist cleric, to its capture-or-kill list:

As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said. The officials, like others interviewed for this article, spoke on the condition of anonymity because of the sensitivity of the operations.

Several VC readers have emailed to ask about the lawfulness of targeting a US citizen – in this instance, referring to the US military’s target list.  I understand there has been some blog commentary on it, particularly on the question of whether it is somehow unconstitutional so to target; I haven’t read it so won’t try to be specific.  I’m trying to reconstruct what I lost on my computer on, as it happens, targeted killing yesterday, so I don’t have time to answer this here.  Apologies, just swamped.  I’ll instead invite VC conspirators to talk to the constitutional questions, if they are inclined.   Continue reading ‘Targeted Killing Aimed at a US Citizen Abroad’ »

Yesterday I expressed my concern about the decision to Mirandize the Christmas day bomber.  Today’s Wall Street Journal has this excellent editorial forcefully criticizing the Administration’s decision to do so.  Here’s an excerpt:

On “Fox News Sunday,” Chris Wallace asked White House Press Secretary Robert Gibbs whether the President was told that Abdulmutallab was Mirandized after only 50 minutes of interrogation. Mr. Gibbs said the decision was made “by the Justice Department and the FBI” and insisted they got “valuable intelligence.”

This is awful. This talky terrorist should have been questioned for 50 hours, not 50 minutes. More pointedly, Abdulmutallab should not have been questioned by local G-men concerned principally with getting a conviction in court. He should have been interrogated by agents who know enough about the current state of al Qaeda to know what to ask, what names or locations to listen for, and what answers to follow up. The urgent matter is deterring future plots, not getting Abdulmutallab behind bars.

It gets worse. Appearing before Congress last week, FBI Director Robert Mueller admitted that the HIG group essentially doesn’t even exist yet. They haven’t pulled it together.

Recall that in August Mr. Obama announced the intention to create a multi-agency HIG, transferring lead responsibility for interrogations away from the CIA and into the FBI, with techniques limited to the Army Field Manual.

And worse. As a Wall Street Journal account of last week’s Senate Judiciary hearings noted, the HIG team is intended only for interrogations overseas; the Administration hasn’t decided whether to use it domestically. In any event, that’s moot until there is an HIG team.

As the facts are emerging, it appears that this was a mistake of the first order.  Abdulmutallab admitted he was from al Qaeda and was speaking “openly.”  But then he was given a break and given Miranda warnings, after which he apparently stopped giving useful information.

It is instructive to compare the solicitude for Abdulmutallab’s Miranda rights with this headline story  in today’s news:  ”Report: Al-Qaeda Aims to Hit U.S. with WMDs:  Huge Attack is Top Strategic Goal, Not ‘Empty Rhetoric,’ Ex-CIA Official Says.”  Would Abdulmutallab have given us useful leads to pursue in stopping such an attack had he been questioned further rather than Mirandized?  Unfortunately, we will never know.

Anyone doing serious work on detention, Guantanamo, war on terror, any of these areas, will want to read an extraordinary new study just out from the Brookings Institution by Benjamin Wittes, Robert Chesney, and Rabea Benhalim, The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking.  (I’ve given the SSRN free download link; here is a short NPR piece on it with legal affairs correspondent Ari Shapiro.)

No matter what your particular legal viewpoint about detention and Guantanamo, this report will be required reading because of the breadth and depth of its analysis – running to all the extant cases.  Ben Wittes is a leading scholar at Brookings in this area and UTexas’s Bobby Chesney is both a leading scholar, and also someone who took on Most Thankless But Important Job in conducting a major review for the Obams administration on detention policy.  Rabea Benhalim is a Brookings Institution Legal Fellow in Governance Studies.

I went to Ben and Bobby, and asked if they would give me a guest post on the background to this report and their purposes in researching and writing it, and I would like to thank them for the short response below:

Guest post from Benjamin Wittes, Robert Chesney, and Rabea Benhalim:

President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges through their exercise of habeas jurisdiction are writing the substantive and procedural rules governing military detention of terrorist suspects.  Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of military detention that is emerging from it.

Boumediene was interesting and important as much for what it did not do as for what it did.  For example, though the issue was briefed, the Court chose not to weigh in on the precise nature and scope of the detention power being exercised at Guantanamo.  Did it apply only to some subset of the members of al Qaeda, the Taliban, or their co-belligerents?  To all members?  What does membership mean in that context anyway?  What about important but independent supporters?  What is the best reading of IHL on these matters, and does IHL actually enter in to the calculus?  What role might the direct participation in hostilities standard play?

And perhaps most important, though the Court had a few things to say about the required procedural features of habeas review, it explicitly left it to the lower courts to sketch the details regarding most of the pertinent evidentiary and procedural rules.  There were some initial calls for legislation to address these questions, but as we saw in 2009 there proved to be little appetite for this on either end of Pennsylvania Avenue.  And so these questions have indeed been left to the courts to answer.  Over the past year, the judges of the district court in DC have been doing just that, producing a number of merits decisions to this point (often favoring the detainee).

Those merits decisions obviously are quite important, but Ben, Rabea, and I are interested just as much if not more so in the substantive and procedural rules that the courts are creating (or at least trying to create) along the way.  Absent legislation, these are the rules of the road for GTMO detention (including for the many detainees whom the Post reports today will continue to be held under color of the AUMF), as well as for any detainees in other locations as to which the federal courts similarly extend habeas jurisdiction (whether and to what extent such jurisdiction applies to our detention operations in Afghanistan, for example, is a question currently pending in the D.C. Circuit).

Indeed, some decisions the judges are making—particularly their views regarding just who comes within the scope of the AUMF—have direct implications for activities other than GTMO detention, such as targeting decisions.  Quite a lot turns on them, and yet there was relatively little coverage of the growing body of caselaw aside from the ultimate merits determinations.  We set out to develop a descriptive account of what the emerging detention jurisprudence actually entails so far.

Among other things, we found a lot of disagreement among the judges.  That observation is not original with us; in fact, more than one of the judges involved in these cases has lamented this fact publicly (see, e.g., the quotes from Judge Lamberth in Ari Shapiro’s story about our report on NPR this morning).  But we think we make an important contribution by documenting the details and nuances of these disagreements—as well as the points of agreement among the judges—and discussing the problems that may follow from them.

(Cross posted to Opinio Juris.)

The Justice Department’s task force on what to do about Guantanamo and detention has said that nearly fifty of the 196 detainees at Guantanamo should be held indefinitely without trial, under the laws of war, on the grounds that they are too dangerous to release but unprosecutable.  Stories are in the Washington Post and the NYT and elsewhere.  According to Peter Finn’s front page WP account:

The task force’s findings represent the first time that the administration has clarified how many detainees it considers too dangerous to release but unprosecutable because officials fear trials could compromise intelligence-gathering and because detainees could challenge evidence obtained through coercion.

This is separate from the question of whether Guantanamo detainees should continue to be repatriated to Yemen, and the general question of former detainees returning to jihad.  Human rights groups, the article noted, are unhappy with the recommendation.  I agree with the ultimate recommendation but am not happy with the legal grounds on which it is offered.  Overall, and without attempting to go into the details, I do not think the law of war framework is the right one – the US ought to move to a legislatively established terrorism regime that would be civilian in nature, have the possibility of both administrative detention in cases such as these, but also the ability to conduct trials under a different set of rules than those of regular US federal courts.

One of the principal reasons I favor this is something not often raised by the press, but which needs to be at the center of policy in this area.  This national security regime needs to be limited to clear terrorism cases – unlike, say, the Patriot Act, in which following passage it was almost immediately invoked in entirely unrelated cases such as child pornography.  But it also needs to extend to cover US citizens.  It is clear that jihadist recruitment is extending to US citizens, and, as Jack Goldsmith says in a recent book chapter, in defining the universe of people subject to administrative detention, it “should extend to US citizens as well as aliens.”  (This is in Benjamin Wittes’ new ed. volume, Legislating the War on Terror: An Agenda for Reform, at 83.) Continue reading ‘Administration’s Guantanamo Panel Backs Indefinite Detention’ »

(Update:  Thanks to Ilya for his post above, and Orin for his comment below to this post.  Bottom line is that Comstock does not have national security implications.)

Could I put a question to the VC staff who are following Comstock?  For those of us in the national security area, the whole matter of continued detention after a sentence has been fully served is of interest because of the possible implications for national security detention.  Detention at Guantanamo and elsewhere in the ‘global war on terror’ has been justified on “enemy combatant” grounds, but arguably (not according to the Obama administration, however, at least to this point) those grounds are weakening as the Supreme Court has altered the pure scheme of wartime detention to include such things as habeas and other innovations.

Numbers of commenters, trying to figure out a less ad hoc basis for detention, while still accepting that there is a justified need and basis for detention, have proposed administrative detention authority under Congressional legislation that might depend upon claims of national security and the law of self defense, but would not be grounded in armed conflict status and being declared an “enemy combatant.”  Glenn Sulmasy has written a very interesting, good short book on the subject; Jack Goldsmith, Matthew Waxman, Mark Gitenstein, and Ben Wittes all discuss some form of administrative detention in Ben Wittes’ new Legislating the War on Terror; I’ve endorsed the idea several places; it’s a discussion in the air over the last couple of years.  At least until the Obama administration apparently decided not to take the war on terror to Congress for a long term legislative arrangement and Congress sighed a big happy sigh of relief at not being on hook for any difficult votes.

Back at the beginning of the war on terror, post 9-11, I remarked on some panel somewhere that administrative detention had been blessed in the US under some pretty weird circumstances – specifically, the Supreme Court decision, sharply divided, endorsing administrative detention for child sexual predators even after sentence served – that is, the state-created version of what Comstock, as I understand it, is debating.  On that panel, which was very early after 9-11, representatives of a couple of civil liberties/human rights groups, which had been arguing that detention of this kind had never happened before, looked surprised.  Mind, I have always opposed the original Supreme Court ruling, on grounds that don’t have very much to do with national security administrative detention under civilian, rather than military, authority.  But it is certainly the case that the United States has long had mechanisms for administrative civil detention for the long term.

Here’s my question to the VC Staff:  Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority?  I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be.  Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road?  Or am I just seeing the world too much through a national security lens?

Earlier today the U.S. Court of Appeals for the D.C. Circuit released its opinion in Al Bihani v. Obama, its first substantive post-Boumediene Guantanamo detainee habeas decision.  In an opinion by Judge Janice Rogers Brown, the court rejected Al Bihani’s habeas claims, affirmed the district court’s denial of his habeas petition and embraced a fairly expansive assertion of the federal government’s detention authority.  Judge Brown also wrote a short separate concurring opinion, and Senior Circuit Judge Stephen Williams wrote a separate opinion concurring in part and concurring in the judgment.  Judge Brett Kavanaugh joined Judge Brown’s opinion for the court in full.

Unless it is overturned, this decision could be quite significant.  SCOTUSblog has coverage here.  University of Texas law professor Robert Chesney has also written a useful summary of the opinion for his national security law e-mail distribution list which I’ve reproduced below the fold.

Continue reading ‘D.C. Circuit Upholds Broad Detention Authority’ »

In the various discussions about airport and airline security here at VC, a common response in the comments is something like this one (some version of this pops up from many commenters, and I’m just pulling up the most convenient example):

With the current procedures, flying is one of the safest things we do. Even with an occasional successful bombing, we would still be way below any level of acceptable risk. If we want to curtail civil liberties to save the lives of people flying, we should start by screening folks we allow to drive to the airport, you’re much more likely to get killed doing that.

It is a costs versus benefits argument (actually a couple of slightly different ones) pitting the costs of a successful bombing and “acceptable” risk, with a suggestion that an appropriate metric, by implication of preferring to regulate it instead, would be the drive to the airport.  It is a theme of much of the skepticism about US counterterrorism policies, a skepticism rooted in cost benefit analysis, but perhaps more accurately framed as skepticism about the proper things to be compared – what kinds of costs and what kinds of benefits?  Matthew Yglesias perhaps exemplifies the skeptical view following the Christmas attack, in a post titled “Not So Scary ‘Terror’”:

Obviously, people shouldn’t be lighting anything on fire inside airplanes. That said, all the big Christmas airline incident really shows to me is how little punch our dread terrorist adversaries really pack. Once again, this seems like a pretty unserious plot. And even if you did manage to blow up an airplane in mid-air, that would be both a very serious crime and a great tragedy, but hardly a first-order national security threat. [Edited out Peter King quote.] …

Ultimately, it does no favors to anyone to blow this sort of thing out of proportion. The United States could not, of course, be “devastated” by anything resembling this scheme. We ought to be clear on that fact. We want to send the message around the world that this sort of vile attempt to slaughter innocent people is not, at the end of the day, anything resembling a serious challenge to American power. It’s attempted murder, it’s wrong, we should try to stop it, but it’s really not much more than that.

I don’t think this is right, for a number of reasons, starting with thinking that it is not the right way to approach cost-benefit analysis – more exactly, what one should count as categories of costs and benefits to weigh against each other.  I’ve elsewhere partly explained my views on how cost benefit analysis requires a prior view of “plausible” comparisons, arguing that skeptics like John Mueller are making “inapposite” comparisons.  But I’m interested to know what VC commenters think is the right way to approach this; I think that “plausibility” and “appositeness” of comparisons matter, and in fact form an often-covert base of assumptions in applying cost-benefit analysis, whether to skeptical or non-skeptical ends.

So let me ask.  What is right or wrong with this skeptical approach to such things as airline security on the grounds, for example, that the ride to the airport is more dangerous, or that one’s chances of getting struck by lightning are higher than getting killed by terrorism, or that even if you did manage to blow up a plane, it is not a first-order national security threat?

Let me be very clear on the question.  I am not asking your views on airport security, terrorism, Matthew Yglesias, or such things, not directly.  I am asking readers to say what is right or wrong about cost benefit analysis used in these ways – and more particularly, is it okay or not to include all of these kinds of considerations as the “frame” for costs and benefits?  The skepticism assumes that a wide range of things can be included as points of comparison – is this right, and if not, why not?  And if not, what are the limits, if any?  No rants, please, and confine responses to the methodological question about CBA and its underlying assumptions.

The Reason Foundation’s Robert Poole argues that if we are serious about airline security, we need to alter our focus.  He argues we spend too much time and effort “keeping bad things—as opposed to bad people—off of airplanes.”  A risk-based approach would invert these priorities and concentrate efforts on identifying higher risk passengers for greater screening.  He writes:

As a libertarian, I agree that we should be very leery of forbidding people to fly without good reason. But requiring potentially high-risk travelers to undergo secondary screening (especially since we do some of this randomly, in any case) is hardly the end of the world.

In fact, shifting to a risk-based approach to aviation security would likely mean increased security and lower costs, both for the TSA and especially lower wasted-time costs for most travelers.

Perhaps the TSA’s announcement that international travelers from selected countries will receive heightened screening indicates we are beginning to move in this direction.  I hope so.

Screenwriter (and recovering attorney) David H. Steinberg writes about his recent TSA experience flying home to the U.S. from Aruba.  Among other things, his family was frisked by a baggage handler and a flight attendant snatched the pillow from under his 2-year-old daughter one hour before descent.

A lunatic tries to blow up an airplane, so now my 2-year-old daughter can’t sleep on her pillow. If this is how we respond as a nation to terror threats, then maybe the terrorists really are winning. . . .

I get that the threat of terrorism is real. But if these hastily thrown-together rules are how we respond to new threats, then something is seriously wrong with us (or at least the TSA). If two X-rays, a bomb-sniffing dog, a frisk and a bag search can’t detect the next terror attack, then how is turning off the DVD player an hour early and grabbing pillows from sleeping children going to help? Keep in mind that the new rules only apply to the last hour of the flight (presumably because Friday’s particular lunatic decided to set off his bomb only on descent). Won’t the no-pillow policy just cause Al Qaeda to issue orders to detonate at T minus 1:01?

I flew domestically with my 2-year-old on December 30, and did not have a confidence-inducing security experience either.  We alerted the TSA screeners that we had juice bottles in the diaper bag, and removed them for separate screening (as we’ve been instructed to do on all of our trips with her in the last several months).  Yet after the bottles were x-rayed, noone came to test the liquid (as is usually done these days).  Is this part of the new TSA randomness that is supposed to keep would-be terrorists off guard?  Nor, for that matter, did anyone catch the small containers of hand sanitizer we had forgotten to remove from two of our bags.  But, rest assured, Madeline Joyce was not permitted to wear her tiny booties through the metal detector. At least she didn’t need a pillow.

Many of us who write, read, and comment on this blog work frequently with cost-benefit analysis, perhaps typically through discipline specific tools, whether in economics or finance or business or engineering or other disciplines.  In my case, in my day job I’m mostly an international business-finance professor who uses the typical, and really not very sophisticated, tools of net present value, discounted cash flow, and so on, in my day to day work.  I apply these ideas sometimes in my work in public law, but mostly these are, in my case, workaday tools in relatively narrow business contexts.

I understand CBA, that is, at the highly discipline-specific level of standard private firm decision-making.  And I think, after a fair amount of philosophical study, I understand it at the most abstract level as consequentialism, and its many philosophical arguments.  But oddly, I don’t think – despite reading a couple of textbooks and much besides on public (rather than private firm) finance theory – I really understand the “mid-tier” of cost-benefit analysis applied to public policy problems, in the way that, for example, Cass Sunstein writes about pretty much everything as a cost-benefit problem.  Yet this is where CBA seems to be most offered as a policy template – and yet which puzzles me in many ways.

The puzzles include, for example, how one compares different values that seem to me fundamentally incommensurable.  I am currently grappling with the question in precisely this “mid-tier” public policy context of proportionality in the law and ethics of war.  Among other things, it does not seem to be very much of a problem when I am working in private firm CBA, such as NPV.  Why not?  Mostly because private firm decision-making tends, as a matter of process, to force firms to compare projects that are, because of the profit nature of firms, about comparing anticipated rates of return.  Private finance might lead one to consider quite different economic activities – should we invest in Twinkle by Wenlan or steel tubing? – but ultimately we reduce to anticipated rates of return as the common question.

Public finance is different, because the goods sought are both more heterogenous – national security and health – but also often necessary, in some amounts, ratios, and costs.  That is, a private firm mostly engaged in nuclear engineering has no necessary reason, save for some calculation of efficient return, to also invest in a lingerie boutique.  But public entities do have to invest in highly heterogenous and yet essential goods.  It’s easy to say that how much of one social good versus another social good is simply a “normative” question, and once you’ve answered that, then hooray, you’re back to good old CBA – but really, that mostly simply avoids the question in order to get analysis back to a place where one is comfortable, but where the form of CBA analysis is mostly irrelevant.

True but trivial, in other words, as a matter of method.  CBA doesn’t really seem to answer the important question in public (as distinguished from private business) contexts, except by saying that we have to make tradeoffs.  If that is news to you – and, to be sure, it seems to be to many of my law students – then it is important, absolutely.  But beyond that, as applied to problems of incommensurables, rather than the distinctively commensurable world of private firm capital budgeting, it seems rather empty.  Both too much of a method, and too little.

A second, closely related, puzzle for me about cost-benefit analysis, particularly in the context of security debates, is that I do not understand how CBA is supposed to encompass the fundamentally strategic idea of “drawing a line in the sand.”  A line that is, by its nature, arbitrary – not to be crossed without drastic consequences that were not required just short of it, and which do not seem required just crossing it.  We understand intuitively the idea of “boundaries” as having a huge gaming function, to signal intentions and convey threats, warnings, and generally expectations about the future.  In security, diplomacy, international relations, we have no problem with borders, bright lines, fixed rules and threats, all sorts of things.

Additionally, we have a whole structure of such theory in, for example, contract and other legal areas.  Negotiation theory is full of it, for example.  And of course I can make CBA embrace such thinking by inventing a special calculus of costs and benefits associated with clear signals and expectations – but that is the virtue and vice of CBA, in that it can always invent a special calculus of costs and benefits, and finally so what?

But CBA itself does not really embrace such thinking as en essential part of its method.  It is, after all, part of the ‘marginal revolution’ – and drawing lines in the sand is not very naturally reconciled with the incremental decision-making that characterizes marginality.  This is one of the reasons why, in national security and counterterrorism, it is both so easy and, to my mind, so irrelevant to base critiques of national security measures that do involve, directly and indirectly, drawing lines in the sand, on a certain CBA-inspired skepticism about why any such line is arbitrary.  It is arbitrary, says marginalist CBA skepticism, so why get so worried about it?  This is what inspires – quite mistakenly, I think – the CBA skeptics of counterterrorism (John Mueller, as I’ve mentioned before, is perhaps the most ranting).

No airliner downed, in other words, is worth all the costs and uncertain costs and benefits of, say, war.  Sure, we can talk about a “future series of discounted-expected-downed airliners” and see if the costs of the discounted series makes war worth it.   But let’s be clear that in such case, we are forcing quite artificially a method that is rooted in incrementalism to embrace “lines” and discontinuous “cliffs.”

CBA leads to serial decision-making, precisely because it is a method based in the “marginal revolution” – that’s what’s good about it, but also what limits its methodological scope.  That’s part of what makes it so “relentlessly tactical,” as I have quoted Philip Bobbitt (one of the grand strategists, one of the few who can strategically link military history and strategy, diplomacy, and law).  As my colleague Jonathan Baker – now chief economist of the FCC – remarked to me (I don’t think he’ll mind me quoting him), cost benefit analysis is a method of analyzing and reacting to proposed courses of action, it is “not a method of generating them in the first place.”  Not merely inadequate to the analytic task, which requires forms of thinking that go beyond serial “sunk costs” and marginality – but in some way allergic to the idea of strategic forms of thinking that encompass the ideas of line-drawing, initiating action, gambit, and envelopment.  How does one draw the strategic metaphor of ‘envelopment’ into cost benefit analysis?

You can always expand the cost-benefit frame, make it sufficiently elastic to encompass all these costs and benefits across time and space, yes, sure.  But by the time you’ve done that, it seems to me you’ve invented a new method called “strategy” and called it “cost-benefit analysis.”  It is the strategic thinking that does the work, not discounted probability of gain or loss.  So here is my question:

The VC readership is pretty steeped, from various disciplinary perspectives, in forms of cost-benefit analysis.  How does, and how should, and is it really possible, for CBA to take into account the idea of “drawing a line in the sand” in the “arbitrary” sense of here and no further?  When Captain Picard (and, as Ilya points out, that’s Sir Patrick to you, now!) says, at the opening of the Borg movie, “The line must be drawn here,” what theory of decision-making justifies that?  How does it fit, if at all, into cost-benefit analysis?

(And, to be clear, no fair simply bending CBA so far out of shape that one maintains the form but the real work is done by something distinct.  Or at least, if that’s what you’re doing, say so and say why.)

Bonus question:  what is “strategy,” in this case?  I have used the term here by contrast to CBA.  I have also used it by contrast to “tactics”; note, too, that the strategy-tactics distinction does not really occur in general game theory.  What analytically does “strategy” mean, then, as against these analytic categories that have been framed as distinct from it?

A difficult real world lesson for academics like me is that execution matters.  It very often matters much more than institutional design.  A suboptimal institutional design often matters less than how it is executed, and the attention with which it is executed.  Hard for academics like me to keep in mind, because we are conceptually oriented and almost by nature care more about the design of a system than the messy, daily details of how, or whether, it is carried out.  We tend to think, correctly, that incentives matter and that execution will tend to flow where the incentives flow.  True, but not the whole story; there is another story (much discussed in business literature these days) that execution is not merely an afterthought – another too-easily made economists’ assumption – but a process that has its own dynamics.

The Christmas attack brings these problems of both institutional design, but also execution failure, to the fore as the disastrous performance of government agencies once again takes center stage.  Watching the institutional blame game now starting to unfold (see also the excellent article by the NYT Scott Shane) caused me to recall three short books written by Judge Richard Posner a few years ago, as part of a Hoover Institution series from Rowman and Littlefield, on domestic counterterrorism.  He was writing particularly from the vantage point of analyzing institutional design, but then going on to discuss the many reasons why government agencies are typically so appallingly bad at execution.  His basic observation was that bureaucratic coordination in domestic counterterrorism was nearly unachievable, for reasons related to the internal governance of bureaucracies, agent-principal failures, and other reasons.  Reasons that were partly bad incentives – but also simply the inability to get bureacratic focus on execution.

These books are worth revisiting as structures of domestic counterterrorism are now getting (or so I hope) a much needed re-examination.  Below the fold, I am putting a short review of the three books from early 2008 – originally slated to appear in the Journal of Terrorism and Political Violence, where I’m on the editorial board, but then we shifted away from short reviews, so it didn’t run.   Judge Posner makes keen observations on what works, what doesn’t, and his observations from the mid 00′s are still relevant today.

Continue reading ‘Execution Even More than Design – Revisiting Richard Posner on Domestic Counterterrorism’ »

Following up on Eric’s post re President Obama’s legal authority to target in Yemen …  I’m a bit of a broken record on the need for the United States government to articulate a more coherent legal basis for its targeted killing.  But it is just more so since the Christmas terrorist attack … the range of places in which the US might well decide it should attack safe havens is likely to grow, and so too the range of people to be targeted.  In one way, the fact that “Al Qaeda” took responsibility makes it easier for the USG to expand the range of places in which targeted killing gets used, because it means people (at least in the US) understands that AQ has not gone away.  On the other hand, Eric is right to point out that calling it Al Qaeda gets, well, notional after a while.  And anyway, the AUMF does not solve any international law problems, either in the resort to force or its conduct; it is an act of Congress.

All of which is why in my view, the United States needs to reaffirm the 1989 Sofaer doctrine on non-state actors, terrorism, safe havens, and self-defense.  As far as I am aware, it has never gone away or been rescinded – but it has not been publicly articulated as the view of the US government for a long time.  The essential element is that there is a category of use of force in self defense that is neither law enforcement, nor is it armed conflict in all the specificity of the laws of war because the use of force does not rise to the level of sustained fighting required under treaty and customary law of war.  It is its own category, self-defense; it is not standardless, because it is subject to the customary law requirements of necessity and proportionality – but it is a doctrine of international law that is flexible in responding to new situations, as the Sofaer doctrine says.

If anyone from DOS, DOD, DOJ, NSC, CIA, DNI, or the White House counsel’s office is reading this following the Christmas attack, and as you sit thinking about Yemen, Somalia, and who knows where down the road … you should be thinking hard about having the State Department Legal Adviser deliver a major speech in which the traditional category of self-defense, and the Sofaer speech in toto, is reaffirmed as the opinio juris of the United States and not “merely” its state practice.  If a state cannot or will not control its territory, the United States has no legal obligation to sit idly by – in armed conflict or out – to watch it being used as a safe haven for non-state actors.  President Obama has said this repeatedly in the last few months.  But that is not the same as the administration’s top legal officials stating so as a matter of the US view of international law on the use of force – publicly articulating it, and pointing out that this has always been the US view and it is nothing new, but is the lawful basis of the President’s policy.

(A possibility that seems to be on the table.)  Recall our friend, the AUMF:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Al Qaeda is the relevant organization here, and so U.S. presidents can (indefinitely?) take military action against Al Qaeda, regardless of the country in which Al Qaeda members are located.  Note that a military strike against Al Qaeda in Yemen would be an act of war against Yemen unless Yemen consented to it (and it might), even though the government of Yemen itself does not support Al Qaeda (as far as anyone can tell) and indeed has been cooperating with the United States in the “war” (or “law enforcement action” or whatever it is) against Al Qaeda.  But Yemen, because of its own internal conflicts and the weakness of its government, may not be willing to take as aggressive action as the U.S. government wants it to—just like in Pakistan, where a similar war between the United States and Al Qaeda is taking place with only the quasi-consent of the Pakistani government.

But there is a further complication.  The relevant Al Qaeda in Yemen is called “Al Qaeda in the Arabian Peninsula.”  Is Al Qaeda in the Arabian Peninsula a branch of Al Qaeda, the organization that planned and executed the 9/11 attack and is therefore covered by the AUMF?  There are apparently contacts between the two Al Qaedas, but does that make them the same organization, or just two separate organizations that have—contacts?  What if the two Al Qaedas do not cooperate in any way; suppose that leaders of Al Qaeda in the Arabian Peninsula simply borrowed the name Al Qaeda, a kind of trademark violation intended to siphon off some of the reputational capital enjoyed by the original?  If so, the authority bestowed by the AUMF vanishes—poof!

All of this is moot if the U.S. government takes the precaution of blowing up its targets in Yemen rather than taking them prisoner.  As others on this blog have noted, the courts in their wisdom apply different standards in the two cases.  If Al Qaeda in the Arabian Peninsula is not a part of Al Qaeda, the president can draw on his constitutional authority for a military attack, as Reagan, Clinton, and other presidents have.  But if the U.S. military takes anyone prisoner, and the AUMF does not apply, then the outcome is anyone’s guess.  One suspects that for this reason any prisoners will be quietly turned over to the Yemenis, who would be happy to interrogate, intern, or dispatch a common enemy.