The Volokh Conspiracy

H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, has already passed the House, and is currently before the Senate. One section of the bill gives the President the authority to detain indefinitely American citizens, picked up on American soil, because they are allegedly supporting the enemy:

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 23 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 11 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Yesterday the Senate rejected an amendment by Senator Mark Udall (D-Colo.) that would have stricken the detention provisions, and required the Executive branch to submit a report (within 90 days) on the the legal and practical issues involving detention, and required Congress to hold hearings on the detention within the next 45 days after receipt of the report.

The bill also includes provisions to prevent civilian trials of prisoners currently held at Guantanamo. The Obama administration is threatening to veto the bill, although the objections appear to involve Guantanamo-type issues, and not the expansion of the executive’s detention powers. [Note: The bill version quoted above is the version as passed by the House and sent to the Senate. It is the latest version available on Thomas. The numbering for some sections may be different in earlier versions of the bill.] Kudos to Senator Udall, one of the few genuine civil libertarians in Congress, for taking the lead on this issue.

UPDATE: A commenter points out that, according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power. See the C-Span video of the debate on the floor of the Senate, at 4:43:29. This is not the Obama I caucused for in Feb. 2008.

Today at 12:15 at the University of Utah College of Law I will be debating my colleague Amos Guiora about whether Miranda rights should be extended to terrorists.  I have previously blogged here and here about my view that Miranda’s “public safety” exception means that law enforcement officers investigating terrorist incidents need not give Miranda warnings.  I thought I’d briely lay out my argument a bit more fully now in anticipation of the debate.

The case of Umar Farouk Abdulmautallab (the so-called “Christmas Day Bomber”) usefully frames the issue.  According to public reports, Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation — questioning that took place before he was Mirandized.  He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a “clean team,” brought in to interrogate him after he was read his Miranda rights. The “clean team” began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.

The policy question here is why would anyone want to give Abdulmautallab Miranda warnings?  As Stewart Taylor forcefully wrote here:  

But no reasonable person could doubt that starting out with “you have the right to remain silent” is not the way to save lives.  Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.

The only reason that I can see for giving Miranda warning in such a situation is that the is a constitutional requirement to do so.  But Miranda has been interpreted (in New York v. Quarles) as containing a “public safety” exception, allowing police officers to jettison the Miranda procedures in situations where the question is motivated by preventing further danger to the public.  In that case, for example, police officers were allowed to question suspect Quarles aboutt the location of gun he had apparently discarded in a supermarket. 

The exact parameters of the public safety exception are unclear.  But if any circumstance would appear to involve overriding public safety concerns, it would be a circumstance involving a terrorist investigation.  Indeed, the Second Circuit has allowed un-Mirandized question of terrorist suspects about how bombers were made and how to disarm bombs that were uncovered.  U.S. v. Khalil, 214 F.3d 111 (2d Cir. 2000).  Questioning of suspects like Abdulmutallab would seem to comfortably fit within the exception.

Because there appears to be some legal uncertainty about whether the public safety exception covers terrorist investigations, it would be useful for Congress to weigh in on the subject and clearly express its view.  Here’s one way a statute covering terrorist investigations could be drafted:

¨“When a law enforcement officer questions any suspect arrested for terrorist offenses found in chapter 113B of Title 18, or comparable offenses under state law, a situation involving the public safety shall automatically be deemed to exist and the officer need not provide any advice of rights to the suspect.  Any voluntary statements made by the suspect shall be admissible in any prosecution thereafter brought by the United States or by the District of Columbia.”

I will be interested to see what Professor Guiora and others think of my proposed statute.

Update:  Rick Pildes from NYU has alerted me to his excellent post, found here on Balkinization, also arguing for a codification of the Miranda public safety exception in terrorist situations.  Here an excerpt from his argument:

Congress [should] . . .  enact legislation to define the contours and boundaries of the public-safety exception to Miranda in terrorism cases. The public-safety exception already exists: the question is how it ought to apply in contexts, such as terrorism investigations, in which there is uncertainty because the courts have not yet had to define the scope of the exception. Congress could define the circumstances in which law enforcement can engage in non-coercive questioning of terrorist suspects, without Miranda warnings, for purposes of gathering general intelligence information, purpose (2) above, while still being able to use any statements against that suspect at trial. Informed by counterterrorism experts, Congress could specify the time period in which such questioning is necessary and permissible (hours? a day? several days?). Congress could consider authorizing a brief period of initial, non-Miranda interrogation, but then require law enforcement to get judicial authorization for any further period of such questioning. In other ways, Congress and the President could codify what these two institutions jointly believe is the appropriate and necessary contours of an intelligence focused, non-Miranda period of questioning.

Further update:  I’m embarrassed that I didn’t cite co-blogger Orin Kerr’s analysis of this same issue, which can be found here.

According to Bob Woodward’s new book, Obama’s Wars, President Obama seemed to suggest that a terrorist attack on the United States might not be a big deal.  According to the Washington Post, the President remarked that “we can absorb a terrorist attack.”  In an instant, a campaign-season talking point was born: The President does not worry about our nation’s security and is complacent about the terrorist threat.  Yet as Benjamin Wittes reports on Lawfare, the quote is accurate, but woefully incomplete.  The relevant portion of Woodward’s book (reproduced on The Plum Line) reads as follows:

During my Oval Office inteview with the President, Obama volunteers some extended thoughts about terrorism.

“I said very early on, as a Senator and continue to believe, as a presidential candidate and now as president, that we can absorb a terrorist attack. We will do everything we can to prevent it. But even a 9/11, even the biggest attack ever, that ever took place on our soil, we absorbed it, and we are stronger. This is a strong, powerful country that we live in, and our people are incredibly resilient.”

Then he addressed his big concern. “A potential game changer would be a nuclear weapon in the hands of terrorists, blowing up a major American city. Or a weapon of mass destruction in a major American city. And so when I go down on the list of things I have to worry about all the time, that is at the top, because that’s one area where you can’t afford any mistakes. And so right away, coming in, we said, how are we going to start ramping up and putting that at the center of a lot of our national security discussion? Making sure that that occurence, even if remote, never happens.”

Read in context, Wittes notes, the President’s comment “does not reflect complacency, but a hard-headed realism about certain facts.”  There are reasonable bases upon which to criticize the Administration’s approach to national security, but claiming this quote shows complacency about the terrorist threat is not one of them.

UPDATE: More from Wittes: Bush officials voiced similar sentiments.

I am not an expert on the law of citizenship in the United States, but my Opinio Juris co-blogger Peter Spiro is.  Over at OJ he has a short doctrinal analysis of the case law that would likely be relevant to Joe Lieberman’s citizenship-stripping proposal.  It seems to me analytically sound, although I do not hold myself out as an expert in this:

Joe Lieberman has just rolled out a bill (text here) which would strip individuals associated with foreign terrorist groups of their US citizenship.

He’s been playing this as if it were a minor statutory fix.  It’s true, as he’s been stressing, that current law terminates citizenship for “entering, or serving in, the armed forces of a foreign state if (a) such armed forces are engaged in hostilities against the United States, or (b) such persons serves as a commissioned or non-commissioned officer.”  8 U.S.C. 1481.  But that applies only where such service is undertaken “with the intention of relinquishing United States nationality.”

That’s not just some statutory nicety.  The Supreme Court has found it a constitutional necessity. Afroyim v. Rusk (1967) is the lead case, in which the Court found unconstitutional expatriation for the act of voting in a foreign political election.  In Vance v. Terrazas (1968), the Court found that

“we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481(a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. “Of course,” any of the specified acts “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.”  But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.”

Now, these rulings do allow the government to terminate citizenship on the basis of conduct alone, without a formal renunciation before a consular officer, so long as that conduct reflects a specific intent to relinquish citizenship.  It was (consistent with Terrazas) long presumed that naturalization in another state reflected a desire on the part of individual to shed his US citizenship.  That’s no longer the case.  As a matter of administrative practice, the State Department since the 1990 has presumed individuals intend to retain their citizenship except where they expressly renounce before a US consular official.  This is true even if the oath of naturalization in another country includes an express renunciation of US citizenship.  Service in a foreign military?  Not a problem, Lieberman’s implication to the contrary.

So Lieberman’s proposal could reverse that practice, and the State Department would once again have to contend with with Terrazas.  Intent to relinquish would be pretty hard to establish, Shahzad’s case included.

I agree, by the way, with Glenn Reynolds’ brief comment:

I think this is a terrible idea. As I’ve said before, we need a bright-line distinction between citizens and noncitizens to reduce the temptation of political abuse. This blurs that distinction, which is a bad thing.

Former President Bill Clinton is back to practicing one of his core competencies: exploiting the 1995 mass murders in Oklahoma City for political advantage in order to suppress criticism of himself and his political allies. Accordingly, some persons might be interested in reviewing the multiple severe injuries that President Clinton inflicted on the Constitution in his “anti-terrorism” bill and his public relations campaign for the bill, a topic which I explored in a 101 page article in a 1996 special memorial issue of the Oklahoma City Law Review.

It’s almost like Christmas. 

I just got the cover design for Skating on Stilts, my policy memoir about DHS, terrorism, and technology.  I found the artist, Mart Klein, on line and explained the basic picture I had in mind.  Much credit to Hoover Press, though, for the font and cover design.

Book covers, like everything else in publishing, have been deeply affected by Amazon.  You have to pick a design that is recognizable in a tiny thumbnail sketch as well as on the shelves at bookstores.  This works for that purpose.  Plus, I just really like comics-style illustration, and there’s a hint of Jim Steranko in this cover.

Publication is set for June of this year. 

TSA is facing new challenges from powerful explosives hidden in areas that usually can’t be searched until after dinner and a nice wine. No one is wild about the millimeter wave and backscatter machines that show how we’d look on the beach if we were dumb enough to wear Speedos.  The “puffer” machines that tried to find traces of explosive vapor were a better idea in theory but they didn’t work well in realistic airport trials.  What to do?

Turns out, there is an alternative.  My favorite airport search technology while I was at DHS is at last being commercialized.

Bees.

They have a great sense of smell, they can be trained a lot cheaper than dogs, they recognize more smells, and when they retire after a few days on the job, they make honey for you.

Plus, as far as I know, no tribunal has ever ruled that it’s a violation of international law to tell suspected terrorists, “Listen, buddy, either you talk to me or you’ll spend some time alone with my partners.  Yep, looky there, they’re already extending their proboscises at the thought.  You better make your mind up right quick.”

After getting a number of email requests for this testimony, I’ve posted it up for convenience at SSRN, although it is also available through the hearing page as well.  I submitted along with it my earlier Weekly Standard article, Predators Over Pakistan.  As I have said here earlier, however, this hearing on March 23 came just ahead of Legal Adviser Harold Koh’s March 25, 2010 ASIL speech.  Dean Koh’s speech addressed many of the criticisms made of administration policy on drones, and I should add, in ways that I thought substantively correct as a matter of legal policy.  I thought the Legal Adviser’s statement strong, clear, and substantively excellent.  Overall, I was pleased with the form and direction of its legal framework (if you look at the second half of the Predators Over Pakistan article, the more legally oriented part, you will see that my analysis tracks certain parts of the Koh speech analysis fairly closely).   I was also impressed with its directness – it was not filled with careful dodges and lawyerly hedges that would make it impossible to find a clear takeaway, quite the contrary.

There are many open questions, of course, and ways in which interpretations and legal judgments could go – but the statement on drones itself was impressively direct in what it chose to address.  So I strongly recommend reading this testimony, if you plan to, with the Legal Adviser’s text to hand.  (Below the fold is the SSRN abstract for my testimony.)

Other articles worth reading on the Koh speech?  Shane Harris’s quick take at the Atlantic is a useful one, likewise Ari Shapiro’s take at NPR (including his sense of the audience reaction at the ASIL meeting, which I was not able to attend), and I will post links to some other articles, including Peter Finn’s upcoming Washington Post piece.  In the academic blogosphere, reaction was not so enthused – although my Opinio Juris colleague Julian Ku was pleased that the Koh speech embraced the Bush rationale of armed conflict in addressing Al Qaeda terrorism, my other Opinio Juris colleague Kevin Jon Heller was not so enthused (although KJH was actually commenting on another part of the Koh address, on the ICC and the crime of aggression).  Diane Marie Amann was also not enthused.

In reading the entire speech – which ran over an hour to a packed hotel ballroom – and not just the parts related to drones, I was struck by a general, and in my view deeply important and (especially by academics like me who have never worked in government) underappreciated, question of lawyerly method, sources, methods of interpretation and grounds of authority.  Koh made this point by quoting from Walter Dellinger on his experience at OLC:

[U]nlike an academic lawyer, an executive branch attorney may have an obligation to work within a tradition of reasoned, executive branch precedent, memorialized in formal written opinions. Lawyers in the executive branch have thought and written for decades about the President’s legal authority…When lawyers who are now [in my office] begin to research an issue, they are not expected to turn to what I might have written or said in a floor discussion at a law professors’ convention. They are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch’s legal positions.

I think this is important as a question of method and authority in international law as expressed by the United States as its binding obligation.  When the Legal Adviser’s office sat down to come to a view (and with, drawing on an earlier section of the speech, the extraordinarily difficult and complex task of coordinating with other agencies of government and their lawyers), in other words, it presumably looked to its own practices, opinions, internal conclusions and advice to the executive branch, and so on.  Not to outside scholarship, or at least presumably not until well down the path of interpretive authority within the internal structure of interpretation and legitimate legal authorities within the context of US government lawyering.

Like most academics, particularly when dealing with an administration with a sizable number of lawyers who come from academic communities such as my own, I certainly want to believe that Everyone Who Is Anyone is reading … my stuff.  But of course it’s not true and, more importantly, it shouldn’t be true.  Not except as very, very tertiary.  Why?  Because authority in law is partly a question of the logic, compelling or not, of the ideas and argument expressed – but its legitimacy is also partly a question of its provenance, particularly in the law of a democratic government, in which the legitimate authority of law is partly about internal logical consistency but also partly about consent of the governed.  Who said it also matters.

Continue reading ‘Drone Warfare Subcommittee Testimony, Up at SSRN’ »

Update:  I have had a chance to watch the video twice – I strongly recommend watching it, as it adds considerable language to the statements below in the press release.  And welcome Instapundit readers and any others.  Given how much I have pressed publicly for a statement by the administration’s lawyers, I want to say this much even while I’m still doing a careful lawyerly parsing of the text.

First, let me praise Harold Koh for stepping up to the plate.  This is a plain, clear statement of the US view of the law and its application.  It is measured, and yet exceedingly direct.  My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States.  As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare – most recently in a Weekly Standard article on exactly that theme, again this week in a sharply worded statement to a House subcommittee hearing, and an Ari Shapiro interview on NPR this morning recorded a a month ago – this was an enormously positive step.

Second, on the substance.  On first read, I think this is a great statement.  It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces.  But it also asserts self-defense several times as an alternative.  I had been greatly concerned that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view – that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens.

I want a chance to go over the written text and say something much more exact.  But given how much, particularly this week on account of the Congressional testimony, my criticisms of the administration’s lawyers have been in the news, I would like to make it known as publicly as possible that, on first read, the Legal Adviser’s statement on targeted killing and drone technology is very positive, very strong, and admirably forthright.  My congratulations and thanks to the Legal Adviser.

*

I was teaching classes and unable to attend, much as I wanted to, DOS Legal Adviser Harold Koh’s keynote address at the American Society of International Law annual meeting tonight.  Shane Harris sent me along the press release from ASIL with these excerpts from Dean Koh’s address specifically on the topic of drones.  I have barely had a chance to skim this and have not seen the full text, so I will refrain from commenting at all until I’ve had a chance to read this through.  But I wanted to post this immediately for interested readers; I will now read it through and watch the video):

Koh’s wide-ranging remarks on the Obama administration’s international law policies included a specific affirmation of the administration’s approach to the use of force, including the use of unmanned aerial vehicles (UAVs), which has recently come into question by some legal experts.  Among Koh’s statements regarding the use of UAVs are the following.

“…[I]t is the considered view of this administration…that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war….As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us.  Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….[T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

-                             First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

-                             Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

In U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.”

Responding to some recent arguments made against the use of UAVs, Koh defended the administration’s policy saying:

“[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war.  But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law….[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations.  But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing.  But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.  Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.  In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting.  They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations.  But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of wear – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’”

To view video of the relevant portion of Koh’s address to the Society, visithttp://fora.tv/v/10561.

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’ »

Taliban propagandist Adam Gadahn (a/k/a Adam Pearlman and “Azzam the American”) has been captured in Pakistan. In 2006, he was indicted for treason in the federal district court for the Central District of California. Both during and after World War II, federal courts were successfully used for treason trials for American citizens who had served as enemy propagandists or committed other acts of treason. If you would like some analysis of the precedents, as specifically applied to the Gadahn case, see Kristen Eichensehr, Treason’s Return, 116 Yale Law Journal Pocket Part (no. 229, 2007) (arguing that Gadahn should be prosecuted for “levying war” but not for “giving aid and comfort to the enemy,” because of free speech concerns);  Douglas A. Kash, The United States v. Adam Gadahn: A Case for Treason, 37  Capital University Law Review 1 (2008) (good summary of the WWII cases). As Kash concludes: “By bringing Adam Gadahn to a U.S. court of law to face criminal charges, while strictly preserving and affording him all rights reserved for all defendants, this nation can yet again show the world that despite the attacks on that fateful day, the pillars of justice upon which this Republic stands have not crumbled.”

Update: It now appears that the man captured was Taliban commander Abu Yahya, not Adam/Azzam Gadahn/Pearlman. So consider this post a head start for the discussion when Gadahn is brought to justice. Unless a drone takes care of the job first.

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.

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’ »

With his usual nudge-and-wink, Matt Drudge invites us to be dismayed that “BIG SIS” — his moniker for Janet Napolitano — is “Monitoring Web Sites for Terror and Disaster Info.” Drudge links to a story saying that DHS will be monitoring social media like Twitter, as well as websites like Drudge, to keep abreast of events during the Winter Olympics. The source of the story is a twelve-page “Privacy Impact Assessment” issued by DHS.

This isn’t the first Privacy Impact Assessment (PIA) on DHS’s use of social media. A few weeks earlier, DHS wrote a similar assessment of using social media during Haitian rescue operations.

I am indeed dismayed, but not for Drudge’s reasons.  True, it’s disappointing that neither the Volokh Conspiracy nor www.skatingonstilts.com is deemed worthy of government monitoring.  But what’s really dismaying is that DHS and its Privacy Office felt obliged to labor over two separate and painfully obvious privacy assessments just to do things that you and I would do by simply firing up our browsers.

The Olympics PIA says in the first paragraph that DHS “is only monitoring publicly available online forums, blogs, public websites, and message boards.” Which should pretty much end the discussion. The government ought to be able to read the papers or watch TV or look at blogs just like anyone else. Or so you’d think. But no, the PIA drones on and on, offering thirty variations of “Hey, this stuff is public” as it assesses the “privacy impact” of, uh, surfing the web.  And so we get painfully obvious applications of irrelevant privacy principle like this:

“7.1 What are the procedures that allow individuals to gain access to their information?

Social media are public websites. All users have access to their information through their user accounts. Individuals should consult the privacy policies of the services they subscribe to for more information.”

Did we really need the federal government to tell us that?

The biggest problem with this policy, though, isn’t the “well, duh” response it inspires.  DHS apparently went into a defensive crouch about the whole program. The PIA is full of unnecessary and risky efforts to appease privacy zealots.

First, the PIAs expire quickly (the Olympics PIA expires after  thirty days, Haiti after ninety), which suggests that DHS is planning on issuing a new PIA every time it wants to look at social media for a new event or disaster. The problem with that policy isn’t just that the waste of time and electrons. The policy is also likely to slow the use of social media in the first hours of an event, when they’d be most useful. For example, the PIA for Haiti social media monitoring was issued on January 21 – nine days after the earthquake struck. Tweets from the rubble were probably getting a little stale by then (though we can hope that DHS did the monitoring first and the PIA later).

Worse, DHS says it won’t collect or share any personally identifiable data (PII), even if the information is included in the tweets. It reassures us that “any PII related to the posting will be redacted.” Does that mean that a tweet saying, “Henri Rideau is buried alive under the rubble at his home, 124 Rue Cayenne” will only be distributed after someone takes the time to bowdlerize it to read, “— is buried alive under the rubble at —”?

I’m sure Henri will thank DHS for protecting his personally identifiable information.

If someone else digs him out.

The PIA also assures us that DHS won’t read posts on sites that require a user name and login. This is also a wildly overbroad “protection” for privacy.  It applies even if the site is entirely open to the public, apparently, since Facebook is not listed. In fact, the last time I looked, the Washington Post required a login, too, and it too is left off the list. But maybe DHS can wait for the dead tree edition before it gets any disaster news broken by the Post.

Is there really a difference between public posts and Facebook updates that are shared with everyone on Facebook? If your mobile phone is set to send messages as Facebook updates rather than tweets, the government will never know you’re in trouble, thanks to this incoherent effort to appease the privacists.

DHS deserves some credit for actually understanding the value of social media in a crisis, but its self-inflicted limitations will either prevent imaginative use of social media or will guarantee violations when these unnecessary limits are set aside as a sensible response to some breaking crisis.  And that will predictably lead to new Drudge headlines: “Developing … BIG SIS violated privacy rules hundreds of times in ‘emergency’ monitoring of Americans …”

In the long run, I guess, dumb privacy policy is its own punishment.

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.)

Many of us said during the days of the Bush administration that restrictions on civil liberties motivated by the conflict with Al Qaeda would be maintained during any subsequent administration, whether Democratic or Republican, as long as the terrorist threat remained.  This prediction has been amply confirmed.  The most recent example is the implementation of an explicit profiling program for airline passengers.  The ACLU aside, there has not been much criticism of this initiative.  (Maybe because some of the most prominent critics of the Bush administration’s counterterror policies are now members of the Obama administration.)

The persistence of policies across ideologically divided administrations is good evidence that those policies are now mainstream rather than partisan and ideological.  Of course, many people will continue to disagree with them, just as many people continue to object to a standing army and a central bank; but these people are now officially on the fringes.  There will also continue to be arguments about interrogation practices and the like, but a wide range of Bush administration policies—indefinite detention without charges, trials by military commission, the use of military force against suspected terrorists in foreign countries, secrecy privileges that undermine litigation against government officials responsible for terrorism policies, profiling on the basis of nationality, and much else—are now politically entrenched.

This development seriously weakens some common arguments heard over the last years.  The major theory was that Americans support unnecessary or unjustified limitations on their liberties because of “panic,” exploited by elected officials for political gain.  If this theory is correct, then it applies to the Obama administration, which is acting just like the Bush administration—not quite as aggressively on the margin, but almost so.  But the theory was never a very good one.  If “fear” or “panic” is to be given any meaning, then it can’t be the case that Americans are in the same panic today as they were nine years ago.  Many policies have been modified, to all appearances reflecting rational consideration of their costs and benefits.  But the “fear” trope was always just a way to criticize policies without coming up with a plausible, empirically informed account of why the government was wrong to think that for any particular policy, the gains are greater than the costs.

The Al-Bihani case is another signpost on the road.  The striking dictum rejecting the view that “the war powers granted by the AUMF and other statutes are limited by the international laws of war” may not survive in the long run—this is in tension with Hamdi, as Judge Williams notes, although on the other hand the Supreme Court has hardly been consistent in requiring that international law be used to interpret statutes.  But the whole opinion, including the concurrences, is pregnant with a kind of resentment that courts are being asked to determine whether the U.S. army properly picked up an (alleged) enemy soldier on foreign territory—and one way or other, the courts are going to maintain their historical stance of deference to the political branches.  The anti-international law dictum is best interpreted as reflecting very sensible doubt that judges are in a good position to figure out how the laws of war should be applied in this quasi-war.  If the president wants to interpret them strictly, then nothing about the opinion prevents him from releasing Al-Bihani on laws-of-war grounds.  Of course, the president does not want to interpret them strictly, in yet another way advancing the legacy of the Bush administration.

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’ »

I’m traveling, so have not been able to comment as I’d like regarding the Christmas terror attack.  However, I wanted to add one thought about cost benefit analysis and counter-terrorism.  A couple of years ago I wrote a paper on ways in which the American political class is riven by deep foundational disagreements about the proper way to approach transnational terrorism.  It is partly implicated in the “war” versus “law enforcement” argument, but actually it goes deeper than that – is it possible to have an offensive strategy against terrorism, or is the only long term possibility defensive perimeters represented by such things as airport screenings and the like?  That, and an even more pessimistic possibility that simply says, following the John Mueller-James Fallows analysis, get used to it and anyway the chances of you getting killed by terrorism are smaller than a lightning strike.

The American public does not buy the “get used to it” approach and so, at least as a matter of public speeches and public stances, no American administration will do so, either.  Instead, the argument divides over offensive versus defensive approaches, and over strategies that adopt a strategic view encompassing both a strategic vision that includes going on offense against terrorists as well as defensive strategies, contrasted with strategies that are, by their nature, tactical and defensive.  The American political class is quite divided over this strategic question – viz., can there be a “strategy,” or is the only strategy really a defensive retreat to defensive tactics?

This deep seated “foundational” disagreement over the nature of terrorism and the response to terrorism has a further twist, however.  Given the deep foundational disagreement over the proper kind of response, at the deepest conceptual level, the tendency is to retreat – as a procedural matter for how to make a decision – to the lowest common denominator.  Where there is deep foundational disagreement as to the nature of the threat, how to respond, whether there is any real scope for holistic strategies or whether the “strategy” must necessarily be responsive and tactical and defensive – the tendency as a matter of procedure, of how policy is made, is to retreat to the shared lowest common denominator.

That lowest common denominator is a form of narrow cost benefit analysis that emphasizes things with which no one could really disagree.  We can’t agree how to fight terrorism, or even whether to fight it – but we can agree that metal detectors at airports are a good thing.  It turns out, enough years out from 9/11, that many people in the political class, think that much of the apparently undisputed matters of agreement are not worth the trouble either, but in general, the tendency of policy is toward obvious things that are driven by cost benefit analysis in some way that gets past the foundational disagreements.

The problem with this form of cost benefit analysis, however, is that as Philip Bobbitt once observed to me, it is purely reactive, defensive, and “relentlessly tactical.”  But the problem is, what happens if your political classes are deadlocked around what a “strategy” should look like, if anything?  You are driven back by process alone to the “relentlessly tactical.”  Actually, it is worth than that.  Not only are you driven back to reactive, defensive, tactical, and narrow forms of cost benefit analysis – you are driven to forms of it that are nearly inevitably what I’ve sometimes called “event specific-catastrophism.”  Meaning by that, the nature of your cost benefit analysis causes you to proceed serially, from one bad event and its prevention to the next – the nature of the CBA does not really offer a way to give a holistic strategy by which you might get ahead of events and threatened catastrophes.

Why not?  Because the nature of your political processes and the divisions of the political class preclude one from embracing any foundations – deep foundational assumptions – about the nature of the enemy, or even, in any sense meaningful to strategy, to the idea of having one.

I once wrote about the problems of foundational disagreement in the response to terrorism, and the limits of cost benefit analysis.  It was not a great paper, to be honest, and I hoped that the circumstances that impelled that paper would simply go away.  But they have not.  So I’m going to link it here.  ”Event-specific catastrophism” is a clumsy term, sure – but it gets at a deep problem with cost benefit analysis of the kind that currently drives policy.  Relentlessly tactical, reactive, defensive … that form of strategic minimalism is fine as a judicial philosophy, as Cass Sunstein has articulated, because to judge is mostly to react, and in a democratic society, the fundamental terms to which one reacts as a judge ought to be made elsewhere.  But the relentlessly serial nature of CBA does not allow it (except by twisting it into something it is not) to embrace such fundamentally strategic ideas as, for example, envelopment and gambit.

Not everything is like judging, and a philosophy of adjudication is not the same as policy and politics simpliciter.  Sometimes you need foundational assumptions, and you need a strategy to get ahead of the other side.  To do that, however, you need a method that accepts that they are a “side” and not just a lightning strike. Continue reading ‘Relentlessly Tactical, Event-Specific Catastrophism, and the Limits of Cost-Benefit Analysis’ »

Several times in his West Point speech on Afghanistan and Pakistan, President Obama declared that the US would not permit Al Qaeda or “violent extremists” the use of safe havens.  He specifically noted Pakistan, Yemen, and Somalia.  The President unsurprisingly never overtly mentioned Predator or drone missile strikes, or the CIA as the operational agents in many instances of these far-from-covert actions.  But there is little doubt that both in the speech and in actual doctrine, targeted killing through drone strikes has been endorsed and indeed extended.

It was a tactic initiated by the Bush administration, but it was embraced and championed by the Obama administration, expanded and made a centerpiece of operations by it, as news stories before and after this speech in the NYT and Washington Post have repeatedly reported.  But an important question remains as to whether the administration is preserving through use and ‘opinio juris’ the legal authority and doctrines that support these sensible tactics.

Not the only tool of US will, of course – the President went to great lengths to discuss diplomacy, values, and many “soft power” options.  Targeted killing is a means, and a limited one; moreover it is not a strategic end in itself.  And it is also quite true that although speeches of this kind are often constructed so as to make oblique references to be understood as such, it is also a mistake to interpret a large policy pronouncement by reference to particular phrases and oblique references in isolation from the larger whole.  But reading the whole speech, there is little doubt that targeted killing is included among the vital tools for the projection of US power – not just in Afghanistan, not just in Pakistan (and the speech several times referred to Afghanistan and Pakistan together, for obvious strategic reasons – but a concept that some in the international law community find wrong or disturbing), but in places beyond.

Was one reference to drone attacks inserted in the speech when the President said that the United States “will have to be nimble and precise in our use of military power”?  Whether that or any particular bit was a reference to targeted killing, however, a core message of the President’s address as a whole was that the US would target terrorist leadership worldwide, not just in Afghanistan and Pakistan, and in ways that can most easily be attributed to targeted killing, including via Predators:

High-ranking al Qaeda and Taliban leaders have been killed, and we have stepped up the pressure on al Qaeda world-wide.

And the President added that we “cannot tolerate a safe-haven for terrorists whose location is known, and whose intentions are clear.”  Those places in the world were not just limited to AfPak, but specifically mentioned “Somalia and Yemen or elsewhere.”  Still, that said, the full context of this quotation shows that the administration regards soft power and hard power together in confronting “violent extremists”; there are multiple ways of interpreting this passage and what are undoubtedly its deliberate ambiguities:

The struggle against violent extremism will not be finished quickly, and it extends well beyond Afghanistan and Pakistan. It will be an enduring test of our free society, and our leadership in the world. And unlike the great power conflicts and clear lines of division that defined the 20th century, our effort will involve disorderly regions and diffuse enemies.

So as a result, America will have to show our strength in the way that we end wars and prevent conflict. We will have to be nimble and precise in our use of military power. Where al Qaeda and its allies attempt to establish a foothold – whether in Somalia or Yemen or elsewhere – they must be confronted by growing pressure and strong partnerships.

And we cannot count on military might alone. We have to invest in our homeland security, because we cannot capture or kill every violent extremist abroad. We have to improve and better coordinate our intelligence, so that we stay one step ahead of shadowy networks.

Lest anyone doubt that targeted killing is an important, indeed key strategy, Scott Shane reported in the New York Times a few days after the West Point speech on the US government’s expansion of the Predator program (Jonathan noted this article earlier), and a vigorous, off the record defense of it with respect to the two core issues – identification of targets and collateral damage – by an unnamed senior source at the CIA.

Shane did outstanding reporting on the controversies surrounding drone targeted killing (I will come back in another post to discuss the collateral damage controversies, but the article is well worth reading on that question.)  It appears to me that the CIA – independent of the Obama administration? – is slowly waking up to the likelihood that its operatives and officials will be targeted by the international law and human rights groups, quite possibly with cooperation from courts in Europe or the ICC prosecutor, if not now, then down the road once the Obama administration is out of office and these often-career officials are left holding the bag.

But the issues are not just targeted killing in relation to safe havens and terrorist leadership.  As David Sanger and Eric Schmitt report today in the New York Times, the Obama administration is now saying that it will use force, even across the border into Pakistan.  This might seem unremarkable, since the CIA is obviously already operating there – without official acknowledgment, if not really “covertly” in the strict sense.  From the standpoint of international law and lawyers, however, cross-border operations raise issues of consent, sovereignty, the UN Charter, and so on.  The US government says that the government of Pakistan has privately, but not publicly, consented to the CIA Predator strikes.  Will the government of Pakistan consent publicly to military strikes cross border against safe havens?  If it does not, what is the legal situation?

Candidate Obama said he would go into Pakistan – no mention of consent – in order to go after Al Qaeda and Bin Laden.  The administration now seems to be signaling its willingness to go in with more forces, and overtly military forces, partly in pursuit of Al Qaeda, but more obviously in support of the Afghanistan war, to eliminate the safe havens for the Taliban.

What about consent by Pakistan as a legal matter?  Much of the international law community would say that without it, or without a Security Council authorization, such incursion is prohibited, except possibly under some narrow “hot pursuit” or a few other limited exceptions.  The Obama administration might say that it either has consent – but what does that mean if the Pakistan government will not publicly acknowledge it?  Or that it has Security Council authorization for the Afghanistan war, and the elimination of safe havens is incident to that – but is that really so?

Regardless of the discussion within the international law community, the United States has never accepted the view that safe havens across borders were inviolable.  On the contrary, the US position has always been that if a government is unable or unwilling to control its territory, safe havens in that territory were liable to attack.  The Obama administration needs to stand up and plainly reaffirm that doctrine.  Not just to assert the modified-limited-hangout, we’re-slightly-ashamed-of-ourselves claim that “we have consent” or that “the Security Council said okay” – but what the US has always taken as international law, that safe havens are liable to attack, if the sovereign state is unwilling or unable to control its territory.  It is the position taken most clearly in the 1989 Abraham Sofaer speech, as Legal Adviser to the State Department – a speech taken as USG policy and its official view of international law.  (The text of the speech can be found here in pdf scan of the Military Law Review, where it was re-printed, but there are easier to read versions at Westlaw.)

Would the Obama administration seriously doubt that this plain statement by Judge Sofaer is its actual view of the law today?  The Sofaer speech has never been withdrawn; it remains, so far as I know, the official view of the USG.  But it has been allowed to gather dust in the past decade or so.  It should explicitly reaffirmed as the underlying US view, as general principle of law.  It is not the complete statement of law, because it is about terrorism and does not go on to the (legally easier) question of eliminating safe havens in armed conflict:

The United States also supports the right of a State to strike terrorists within the territory of another State where the terrorists are using that territory as a location from which to launch terrorist attacks and where the State involved has failed to respond effectively to a demand that the attacks be stopped.

The United States, and likely the Obama administration, is going to confront situations that are not covered by state consent or a Security Council resolution – but in which it will act, under doctrines of self-defense.  It would be in the adminstration’s interest, and the long term interest of the United States, to reaffirm this doctrine at the general level, and not merely piecemeal.

A local controversy here in Colorado involves an auto dealer who used the billboard on his property to ask the question “PRESIDENT or JIHAD?” The rest of the billboard attempts (not very successfully in my view) to connect this question to the issue of Obama’s birth certificate. Last night I was briefly interviewed about the billboard by Channel 7 News, the local affiliate of ABC. My view is that there is not a scintilla of evidence to suggest that our President is a jihadi. Accordingly, I exercised my First Amendment rights to criticize someone else’s foolish use of his own First Amendment rights. As is the norm, not every portion of a taped interview gets used on the air. One portion that didn’t make the cut was my equating the allegation of “jihad?” with the earlier claims of some mean-spirited extremists that President Bush was as evil as Hitler.

I’ve been traveling recently, and so have been away from posting.  One of the enforced virtues of traveling – one of the few virtues of traveling for me these days – is the plane flight with no internet.  And if the big guy in front of me reclines his seat, as he always does, I can’t even get to my computer.  So I read  on flights.  I should have some reading gadget, Kindle or whatever, but I’m not that far along yet, and for that matter I should get an economy class friendly little word-processor to use on flights, but I’m cheap.  Here’s a selection across the varied reading on my flights.  No particular theme or order, I’m afraid (on account of the mixed-up topics here, I think I won’t open to comments; too jumbled to be productive). Continue reading ‘Reading While Traveling, Hard Copy and No Internet’ »

Last week, I was interviewed by Radio Free Europe’s Russian-language station about the 30th anniversary of the Iranian seizure of American diplomatic hostages in Tehran. The transcript, in Russian, is here. For the fraction of VC readers who do not read Russian (a fraction that is smaller than almost any other U.S. law/policy weblog), here’s a summary of my key points: The hostage crisis initially helped President Carter fend off a primary challenge from Sen. Ted Kennedy, as Carter stayed in the White House attending to the issue. However, as the kidnapping wore on, Carter’s weakness became increasingly evident to the American people; it was observed that Soviet government diplomat do not get seized, because everyone realized that the Soviets would respond forcefully. Accordingly, one result of the hostage crisis was the election of Ronald Reagan. (Who of course later made his own terrible mistakes in thinking that he could establish a working relationship with the Iranian tyrants.) Today, Iran is still ruled by tyrants who hate the West in general, and the U.S. in particular, and the West has new leaders who, like many of their predecessors, cling to the vain hope that the Iranian regime can be pacified by concessions. The world’s largest exporter of terrorism, the Iranian regime aims to  dominate the Near East and the Muslim world. With nuclear weapons, the the Iranian regime threatens the whole civilized world. Everything would be different if the Khomeni revolution had been stopped at the very beginning. The longer that regime change in Iranian is delayed, the worse for everyone.

There seems to be a strange subtext in some press stories hinting that the suspect in the Fort Hood shootings, Nidal Malik Hasan, had psychological problems or motivations of a kind that would somehow render his acts inconsistent with terrorism or with Islamic terrorism. Does the press realize that the psychological profile of a typical suicide bomber or religious mass murderer is hardly one of complete normality?

The scholarship on the psychological makeup of terrorists is somewhat spotty, but in his 2005 Journal of Conflict Resolution article reviewing the literature, Jeff Victoroff identifies the following four characteristics in “typical” terrorists:

a. High affective valence regarding an ideological issue

[here Islam, jihad, or the Iraqi or Afghan Wars]

b. A personal stake—such as strongly perceived oppression, humiliation, or persecution; an extraordinary need for identity, glory, or vengeance; or a drive for expression of intrinsic aggressivity—that distinguishes him or her from the vast majority of those who fulfill characteristic a

[here probably strongly perceived oppression, humiliation, or persecution]

c. Low cognitive flexibility, low tolerance for ambiguity, and elevated tendency toward attribution error

[here there is alleged rigidity in personal relations consistent with low cognitive flexibility and low tolerance for ambiguity; we do not yet know if there was attribution error, such as unreasonably blaming Americans or Jews]

d. A capacity to suppress both instinctive and learned moral constraints against harming innocents, whether due to intrinsic or acquired factors, individual or group forces—probably influenced by a, b, and c.

[here we have not only Hasan's actions as evidence, but also his words and the words of some of his friends]

Jeff Victoroff, “The Mind of the Terrorist: A Review and Critique of Psychological Approaches,” Journal of Conflict Resolution, 49: 3-42, 35 (Feb. 2005).

If what has been reported about Hasan so far is true, his biography may not be usual. But Hasan would seem to fit the psychological profile of an Islamic terrorist almost perfectly — indeed, about as well as Mohamed Atta, Osama Bin Laden, or Khalid Sheikh Mohammed.