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. [...]
We’ve had several posts at VC on Amnesty International and the controversy over its alliance with a former Guantanamo detainee and his organization, Cageprisoners. As a follow-up, see today’s WSJ comment by Michael Weiss, “Amnesty International and the Taliban.” I agree with its general disapproval of how Amnesty has behaved – Weiss is mild-mannered but clear where he stands – and thought it a useful read.
Moazzam Begg … is a British citizen who was captured in Pakistan in 2001 as an enemy combatant and sent to Guantanamo. He was released without charge in 2005. Mr. Begg claims he was tortured and threatened with execution. He has since become a minor celebrity in the Western human-rights community.
He is currently the director of Cageprisoners, a group that bills itself as an organization that exists “solely to raise awareness of the plight of prisoners . . . held as part of the War On Terror.” Amnesty describes Cageprisoners as a “leading human rights organization.” Yet one of its senior members, Asim Qureshi, spoke at a 2006 London rally sponsored by extremist group Hizb ut-Tahrir, which promotes the idea of a renascent Islamic caliphate. Mr. Qureshi took the occasion to glorify terrorism in Iraq, Chechnya, Afghanistan and Kashmir.
Mr. Begg does not hide his own Islamist convictions. In his memoir, “Enemy Combatant,” he recalls his interrogation at Guantanamo, in which he credits his emigration to Afghanistan to his desire “to live in an Islamic state—one that was free from the corruption and despotism of the rest of the Muslim world.” The Taliban, Mr. Begg insists in his book, were “better than anything Afghanistan has had in the past twenty-five years.” Elsewhere he has cited and sold the works of the “charismatic scholar” Sheikh Abdullah Azzam, erstwhile mentor to Osama bin Laden.
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 [...]
An excellent student note by Shannon K. Calt, forthcoming in the Lewis & Clark Law Review, explains the case of A. B. & C. v. Ireland, currently pending before the Grand Chamber of the European Court of Human Rights. The case challenges the Eighth Amendment of the Irish Constitution, which prohibits abortion under almost all circumstances. The Amendment was added by the Irish people in order to prevent the judicial creation of a right to abortion, as in Roe v. Wade. As the note explains, subsequent case law had held that the Irish government cannot forbid Irish women from traveling to England to obtain legal abortions there. The note predicts two possible outcomes for the A., B. & C. case: 1. the ECHR will require Ireland to provide better post-abortion medical care to Irish women who need medical services after obtaining an English abortion. OR 2. The ECHR will create a right to abortion. The latter decision, suggests the note, would be predicated on the ECHR characterizing Ireland’s interest in its constitutional amendment as merely involving “morals,” rather than the protection of innocent life. A decision of the Grand Chamber (17 members, en banc) is binding on all nations which have signed the European Convention on Human Rights. [...]
Co-Conspirator DB notes the continuing controversy over Amnesty International, with Salman Rushdie now weighing in.
Side note: Although until I come out with my own longer account of my views of the NGO movement, including the human rights monitors, I tend to avoid saying much about human rights groups, I have written a bit about Amnesty in the past. A couple of years ago I commented in the Weekly Standard, here, reaping a remarkable amount of hate e-mail. And then I gave a short book review in the International History Review of Stephen Hopgood’s part-journalism, part-anthropology account of Amnesty from the inside, Keepers of the Flame – a sympathetic-but-somewhat-critical take on the organization in an earlier phase of its internal theological debate over its mandate. The Hopgood review is written with a deliberately anodyne academic tone; my views are actually affectively stronger than that. While I think HRW on balance does more good than harm, I can’t say the same about AI, and haven’t thought that for quite a while.
The international NGO question is important, and the attention it receives is far too much from in-the-tank academics besotted with the idea of academic activism. (Not always. See, for example, Steve Charnovitz’s fine writing on NGOs and accountability in the American Journal of International Law (I’ll try to find a public link to his outstanding long AJIL piece; meanwhile here’s a comment of mine that references Steve). But, well, let’s just say that the mean of the literature is not exactly distanced. I will try to say more about that in responding to a recent review essay by Steve in the most recent AJIL; hold the thought.) The herd mentality of the good-and-consensus opinion of international elites – global “experts and enthusiasts,” in someone or [...]
Amnesty International has done its reputation incalculable damage by allying itself with Moazzam Begg and his group Cageprisoners, and holding them up as human rights advocates. It looks very much as if Amnesty’s leadership is suffering from a kind of moral bankruptcy, and has lost the ability to distinguish right from wrong.
(H/T Noah Pollak via Facebook)
Well, at least Amnesty doesn’t send out press releases condemning investigative reports they haven’t seen or anything. Oh, wait; right….
UPDATE: Well, at least Amnesty doesn’t advocate extremely tendentious interpretations of international law that would make it impossible for a Western power to fight against irregular terrorist forces mingled with a civilian population.
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 [...]
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! [...]
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
My Opinio Juris co-blogger Peter Spiro raises an important question about what the US obligations should be in a crisis like Haiti’s. Should the US government put its priority on evacuating its own citizens first?
There are an estimated 45,000 US citizens in Haiti, and there’s an assumption that they should be first in line to receive US assistance. As Hillary Clinton said yesterday, “They are our principal responsibility, to make sure that they’re safe, to evacuate those who need medical care.” …
Should these individuals get priority for US help? … But as between a healthy US citizen who lives in Haiti (and who wants to get out because it is not a nice place to be now) and an injured non-US citizen who may die if not taken to a hospital ship or Miami or someplace where there are functioning medical facilities, the choice is not so obvious. Evacuation capacities are finite. Putting US citizens at the front of the line means putting others at the back.
I disagree with Peter on many related broader issues – his general cosmopolitanism as a basis for political order, dual citizenship, responsibilities that governments have to their own citizens, the moral defensibility of the category of national citizenship and the concept of the nation-state … but in the extreme circumstance of immediate humanitarian emergency, my first take is that Peter is right, and that the welfare advantages of “membership” in a political community (the United States, as defined by citizenship) are outweighed by overall consequences. In any case, in my estimation, Peter is the leading legal scholar on transnational citizenship issues, and you might want to read Peter’s book, Beyond Citizenship. [...]
[Secretary of State Clinton] offered an innovation: The Obama administration, she said, would “see human rights in a broad context,” in which “oppression of want — want of food, want of health, want of education, and want of equality in law and in fact” — would be addressed alongside the oppression of tyranny and torture. “That is why,” Ms. Clinton said, “the cornerstones of our 21st-century human rights agenda” would be “supporting democracy” and “fostering development.”
This is indeed an important change in U.S. human rights policy — but the idea behind it is pure 20th century. Ms. Clinton’s lumping of economic and social “rights” with political and personal freedom was a standard doctrine of the Soviet Bloc, which used to argue at every East-West conference that human rights in Czechoslovakia were superior to those in the United States, because one provided government health care that the other lacked. In fact, as U.S. diplomats used to tirelessly respond, rights of liberty — for free expression and religion, for example — are unique in that they are both natural and universal; they will exist so long as governments do not suppress them. Health care, shelter and education are desirable social services, but they depend on resources that governments may or may not possess. These are fundamentally different goods, and one cannot substitute for another.
(H/T: David Boaz)
Biographers tell us that Clinton was once an Ayn Rand fan. Perhaps she should read this essay [for its explication of the principle of so-called “negative” rights]–not that one has to be an Ayn Rand admirer [as I’m sure the Post editorialists are not] to be appalled at Clinton’s (and therefore the Obama adminsitration’s) abandonment of longstanding American liberal (in the philosophic sense) tradition in favor of the sort [...]
The NYT Room for Debate blog has a short set of posts from a nicely balanced group on the question of moving detainees from Guantanamo to Illinois.
The Obama administration announced on Tuesday its decision to transfer terrorism suspects held at Guantánamo Bay to an empty state prison in Illinois. The move would help fulfill President Obama’s campaign promise to close the Guantánamo detention center, which has drawn international criticism since it received its first prisoners nearly eight years ago. The decision is also welcomed by some Illinois leaders as an economic boon for a job-challenged part of that state.
What does this move accomplish? Will a change of venue cure the legal issues surrounding detentions at Guantánamo? Or is this a symbolic gesture that will make no difference politically or legally in resolving the fate of the detainees?
David Cole, Andrew McCarthy, Dan Schnur, Diane Marie Amann, Kenneth Anderson. (Perhaps some more voices to come.) [...]
If this short report in Newsweek is true, then I think I would worry about legal liability more than before, if I were a CIA officer involved in Predator drone strikes. I would have a much greater level of concern that the administration would not back me up in case of an indictment in a European court, for example. Or that it would not take steps to ensure, once the Obama administration ends, that its officials would be protected from future prosecutions, by sending out an unambiguous message that no American administration, Democratic or Republican, will tolerate such moves against American officials. The international community that largely regards drone strikes as
- (a) extrajudicial executions and murder by any other name;
- (b) American cowardice in using technological superiority to avoid having to take personal risks to confront its targets;
- (c) a reason why America’s enemies hide out among noncombatant human shields, with the result that the Americans “force” their enemies to violate the laws of war; and
- (d) an invitation for the United States to use violence as a tool of frequent convenience because it does not have its personnel at personal risk (rather than seeing these advances in technology as humanitarian steps forward over a quarter century to increase discrimination in targeting, and rather than seeing that not having its people at risk allows the targeting to proceed on a more methodical basis, rather than in-out with greater, rather than lesser, pressure to act in the moment),
has so far refrained from doing to US officials what it is endeavoring to do to Israeli officials because of a belief, so far as I can tell, that Obama personally backs this, as he did in his campaign up until now. His personal authority, rather than views of the United States as [...]
President Obama’s Nobel Prize speech yesterday made reference to the moral authority, under the ethics of the just war, for armed humanitarian intervention in some situations. It is a topic that has been debated and discussed as a matter of international law for, well, a long time, but which gained particular urgency following on Bosnia, Rwanda, and Kosovo in the 1990s. It continues to be debated and argued as a matter of law, morality, and policy. The Council on Foreign Relations has just issued a new report, Intervention to Stop Genocide and Mass Atrocities, authored by Columbia law professor and former Bush administration official Matthew Waxman, looking for ways to move the discussion forward. It is a terrific report, coherently organized and thought-out as to substance, I strongly recommend it to anyone thinking through mass atrocities and “R2P.”
Professor Waxman’s report starts from the premise that the US favors robust practical measures to stop and prevent genocide and mass atrocities. He then turns to the legal regimes in international law and asks what prevents robust responses from taking place:
A[n] important part of this debate concerns the international legal system governing the use of force in situations of actual or potential atrocities. In this Council Special Report, Matthew C. Waxman asks whether this legal regime is effective in preventing and stopping such crimes. The report notes that international legal practices constrain swift action and require extensive consultation, especially in the United Nations Security Council, before particular steps can be taken. Waxman, though, argues that the system has certain benefits: it can confer legitimacy and help actors coordinate both military and nonmilitary efforts to prevent or stop atrocities. He also contends that different arrangements of the kind some have proposed would be unlikely to prove more effective.
He therefore opposes
Where is the Obama administration currently on the Ottawa Landmines Ban Convention? The question is on the public table with the opening in a few days of the Cartagena Review Conference, the second diplomatic conference to review the treaty.
The Ottawa Convention banning landmines was opened for signature in 1997 and entered into force in 1999. The treaty currently has some 150+ parties, but the US has not joined. I was one of the first NGO organizers of the International Campaign to Ban Landmines, and, if I remember correctly, drafted as a sort-of-joke-but-not-quite the very first draft of the landmines ban treaty. (It was a sort-of-joke because it was probably the shortest treaty text ever drafted, I suppose, more or less. It is easy to draft a short treaty if all it does is prohibit things, without exceptions or qualifications. Three sentences or so of pure categoricals.) The final, full, serious treaty text as worked up in the 1990s negotiating sessions can be found here.
I think the treaty was a good idea and I’m proud after all these years to have been associated with it. I’ll leave for another post, however, some of the bigger questions that the passage of time has raised for me, both about the treaty and its substantive content, and also about the effects that the process had in the 1990s in transforming the international NGO sector’s vision of itself as global actors and the development of “global civil society.” But that list of questions starts with the fact that it is not just the US that has not joined the treaty. Nor is it a list of international bad guys. Rather, the list of countries that have not joined is pretty much the set of countries that anticipate they might [...]