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.

Thousands of people, including women and children, are being illegally detained by rebel militias in Libya, according to a report by the Secretary-General of the United Nations. Many of the prisoners are suffering torture and systematic mistreatment while being held in private jails outside the control of the country’s new government.

The document, seen by The Independent, states that while political prisoners being held by the Gaddafi regime have been released, their places have been taken by up to 7,000 new “enemies of the state”, “disappeared” in a dysfunctional system, with no recourse to the law.

The report will come as uncomfortable reading for the Western governments, including Britain, which backed the campaign to oust Gaddafi….

The report says that “while political prisoners held by the Gaddafi regime have been released, an estimated 7,000 detainees are currently held in prisons and makeshift detention centres, most of which are under the control of revolutionary brigades, with no access to due process in the absence of a functioning police and judiciary.”

Of particular worry was the fate of women being held for alleged links with the regime, often due to family connections, sometimes with their children locked up alongside them.

“There have also been reports of women held in detention in the absence of female guards and under male supervision, and of children detained alongside adults,” says the report.

A number of black Africans were lynched following the revolution following claims, often false, that they were hired guns for the Gaddafi regime.

I have long expressed the concern that Libya’s new rulers might turn out to as bad or worse than the old (e.g. here and here). The leaked UN report provides further evidence showing that such concerns have a reasonable basis.

However, there are two important caveats. First, the UN is far from a completely reliable information source when it comes to human rights issues. Its record on such matters is a very poor one. The UN Human Rights Council, for example, is often stacked with egregious human rights violators, and, until recently, actively promoted violations of religious freedom and freedom of speech. Given the UN’s dubious record, it’s certainly possible that this report is either wrong or at least exaggerated. Second, even if the report is correct, the new Libyan regime might still be less bad than the old. Even a government that falls well short of being a paragon of liberal democratic virtue can still be better than Gaddafi’s dictatorship was.

Despite these important caveats, the new Libyan government certainly isn’t looking too good so far. And if radical Islamist elements in its leadership get the upper hand, things might get a lot worse before they get better.

The jury is still out on whether NATO intervention in Libya will achieve its original objective of improving respect for human rights in that country. The new Libyan government might yet clean up its act, or be forced to do so by Western pressure. On the other hand, President Obama’s war in Libya may turn out to have been counterproductive as well as illegal.
.

Interestingly, Representative Kucinich, the lead plaintiff in Kucinich v. Bush, the case in which these words were written, is the lead plaintiff in this case in which members of Congress are again attempting to bring an action against Executive Branch officials. Indeed, the plaintiffs “acknowledge the contrary result” reached by the District of Columbia Circuit in a case also involving alleged presidential violations of the War Powers Clause and the War Powers Resolution. See Pls.’ Opp’n at 17. While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law. The Court does not mean to imply that the judiciary should be anything but open and accommodating to all members of society, but is simply expressing its dismay that the plaintiffs are seemingly using the limited resources of this Court to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.

As noted by Politico, Rep. Kucinich’s attorney, GWU law professor Jonathan Turley, objected to Judge Walton’s suggestion this suit should not have been filed.

I must strongly disagree with the Court’s statement in a footnote that, because the D.C. Circuit previously ruled against members in an earlier challenge, no further challenges should be made by members who disagree. If that were the standard, many of our most famous cases in history, like Brown v. Board of Education, would never have happened. Changes in precedent are often secured only after years, if not decades, of challenges. These members strongly disagree with the D.C. Circuit case law and the only way to ask the Circuit to reconsider those holdings is to first receive a decision from the district court.

Of course it is sometimes necessary to raise claims that are squarely foreclosed by precedent in order to prompt the Supreme Court to revisit its own prior decisions. But such a legal strategy only makes sense where intervening precedents and other decisions raise questions about prior decisions or otherwise expose tensions or contradictions in contemporary doctrine. Simply repeating failed legal arguments in the vain hope the judiciary will alter course, as the plaintiffs did here, borders on the frivolous, and creates the impression those filing suit are more interested in publicity and making a political point than in prevailing in court.

While the deal to free Shalit was backed by a commanding Cabinet majority of 26-3 and enjoys wide support from the Israeli public, there is growing debate about the price Israel is willing to pay in order to free a single soldier.

Families of victims of terror, as well as some members of the Israeli government, have expressed fierce opposition to the deal. One minister who voted against the agreement called it “a great victory for terrorism,” and there are fears that the release of convicted murderers will lead to further attacks on Israeli civilians — a fear that, critics say, is borne out by statistics.

According to Israeli association of terror victims Almagor, 180 Israelis have lost their lives to terrorists freed in previous deals since 2000….

If the figure of 180 Israelis killed by exchanged terrorists is even remotely accurate, it greatly outweighs the number of Israeli hostages freed in such deals (16 according to this Slate article). And that number does not include the additional hostages taken by terrorists as a result of the success of previous efforts at hostage-taking. It also does not include Israelis killed by terrorists freed in deals prior to 2000, while the total of 16 Israelis exchanged includes all deals going back three decades.

Ironically, as the CNN piece points out, Israeli Prime Minister Benjamin Netanyahu, the man who signed off on the current deal, understands the perversity of these kinds of arrangements perfectly well. He was a prominent critic of similar (though somewhat less lopsided) exchanges that the Israeli government agreed to in the 1980s:

Three years after the [1985] Jibril Deal, Netanyahu explained his philosophy about negotiating with terrorists to CNN’s Larry King. “On one case I did not swallow it. When my government did something that I simply could not live with, which was the release of jailed terrorists for three of our POWs. We wanted to get our POWs back, and the government, in my judgment, made a big mistake and traded terrorists. And here I was confronted with a situation that everything I believe in, in fact agitated for and tried to use an example of Israel for, to encourage other countries, especially the United States, to adopt a tough no-concessions policy against terrorists.”

In his 1995 book “A Place in the Sun” Netanyahu called the Jibril Deal “a fatal blow to Israel’s efforts to form an international front against terrorism” and warned of the hazardous consequences of such moves. “The release of a thousand terrorists…will inevitably lead to a terrible escalation of violence, because these terrorists will be accepted as heroes,” Netanyahu wrote.

Netanyahu’s critique of the 1985 deal applies with even greater force to his own more lopsided agreement.

UPDATE: Various commenters on this and my previous post on the same subject claim that the Israeli government had to do this in order to send its citizens a “message” about how much it valued their lives and was willing to pay a high price to save them. But if these deals lead to the deaths of far more innocent Israelis than they save, the real message sent will be exactly the opposite: that the government is willing to make a large net sacrifice of innocent life in order to gain short term public relations benefits or a short-term boost in national morale. It’s possible, of course, that Israeli public opinion is myopic enough that they will think that the government is saving life despite the fact that it is actually sacrificing a much larger enough of innocent lives. If so, there could be a more permanent and substantial boost in national morale. Even then, it will probably fade as public attention shifts to other issues. In any event, it’s not worth the sacrifice of numerous innocents and the creation of perverse incentives for terrorist groups.

UPDATE #2: Tyler Cowen responds to this post here:

Ilya is possibly underrating the power of signaling models. It is precisely the fact that that Israeli government will trade for this single life, even apart from whether it is instrumentally rational, that sends the relevant signal. The less “rational” the act, the more potent the signal of concern, and in this case the possible irrationality is stochastic, not certain…..

One can also read the Israeli government as signaling (correctly or not) that it has the power to prevent or at least limit future kidnappings. It is an expression of strength, or at least a belief in strength, and citizens seem to like that signal from their leaders.

I am not at all persuaded by Tyler’s argument. If Israel meant to signal that they can prevent future kidnappings, they have clearly failed. Hamas leaders have repeatedly stated that this exchange encourages them to take more hostages in the future. As soon as they do so, any Israelis who may have been deluded by this signal of “strength” will be disabused of the notion that strength is what is being signaled here.

If the goal is to show that Israel is willing to save its citizens even when it’s not “rational” to do so, then the message is self-defeating. In this case, it’s irrational because israel is actually sacrificing many more innocents than it will save. To the extent that the Israeli public understands that, they will be demoralized rather than encouraged. If they don’t understand it, they won’t understand that the action isn’t “rational” and thus won’t get the message that Tyler thinks the Israel government is trying to convey.

I understand the emotional appeal of securing the release of a young soldier who has been in captivity since 2006. Nonetheless, the Israelis should have said “no.” Far from saving innocent life, the deal puts at risk many more innocents than it saves. It also incentivizes future acts of hostage-taking by Hamas and other terrorist organizations.

Among the Hamas prisoners released in the deal are dozens who have committed brutal acts of terrorism against civilians in the past. If even a few of them commit further terrorist atrocities in the future, the resulting death toll is likely to far outweigh the benefit of saving Shalit. Moreover, such a lopsided deal (trading hundreds of hardened terrorists for an ordinary soldier) incentivizes future hostage-taking. Hamas officials have already said that the deal encourages them to kidnap more Israelis. If one hostage is worth 1000 prisoners, what can they get for two or three or ten? As one Hamas leader puts it, “[s]omeone who agrees to release 1,000 prisoners will agree to release 8,000 in the future.” If even a right-wing Israeli government that has otherwise taken a hard line against Palestinian terrorism is willing to go for such a deal, what about other liberal democracies? The precedent set by the Israelis is likely to endanger other nations as well as themselves.

Both the Israelis and other democratic states (including the US) have signed bad deals to get hostages back in the past, and such agreements have repeatedly backfired. For example, President Reagan gave Iran arms in exchange for American hostages held in Lebanon, only to see Iranian-backed terrorist groups seize more hostages as a result. But it’s hard to think of another hostage deal more ridiculously lopsided than this one, though a few previous Israeli exchanges come close.

Finally, it should be emphasized that Gilad Shalit is a soldier. The moral significance of that status seems to have been ignored. The job of soldiers is to protect innocent civilians from attack, sometimes at the risk of their own lives and freedom. Soldiers’ acceptance of these risks is why we rightly hold military service in such high respect. Although Shalit was apparently a draftee, he volunteered to serve in a combat unit, thereby accepting the attendant risks (the moral issue might be different had he been forced to take that risk against his will). To put numerous civilians at risk of future terrorist attacks in order to save a single soldier is a reprehensible reversal of moral priorities. It is similar to starting a fire that endangers civilians for the sake of rescuing a firefighter.

Shalit’s plight has been highly visible to the public for several years, and his friends and family have understandably been pressuring the Israeli government to secure his release at any price. By contrast, the identities of the future victims of the terrorists released in the deal, and the future hostages who will be taken as a result of it are as yet unknown. Because we don’t yet know who they are, the media can’t cover them and their relatives can’t lobby to protect them. It is a classic example of public opinion focusing on the seen while ignoring the unseen.

I don’t blame Shalit’s family and friends. Most other people in their position would feel the same way. But the Israeli government, like any government, has a broader duty to all of its citizens. It failed in that duty when it put numerous civilians at risk in order to secure the release of a single soldier.

UPDATE: Here is yet another Hamas leader stating that the deal proves that kidnapping works, and promising to take more hostages in the future:

Senior Hamas leader Khalil al-Hayya says the Shalit-for-terrorists deal proves kidnapping works, and he promises more abductions. The Israeli Cabinet late Tuesday night approved freeing kidnapped soldier Gilad Shalit for 1,027 terrorists and security prisoners.

Al-Hayya, a Gaza legislator and a senior academic and political figure, told the Chinese news agency Xinhua, “Our prisoners can only be released through this way. The release of prisoners will lead to a bigger victory and will break forever the siege that had been imposed on the Gaza Strip for five years.”

Last week, he urged Palestinian Authority terrorists to kidnap more Israeli soldiers to gain the release of all prisoners, including terrorists, in Israeli jails.

“The one and only solution is more resistance against the Israeli oppression, and more abduction of Israeli soldiers and settlers,” he told the Al Quds satellite television network.

It’s worth noting that, in Hamas’ terminology, all Israeli Jews are “settlers” and not just those who live on the West Bank.

My own experience of 9/11 was much less interesting or moving than that of many others. But it does include a minor example of how knowledge of social science and history can sometimes steer you wrong. I recounted it in this post:

I was clerking for a Fifth Circuit judge in Houston at the time, and was driving to work, listening to a top 40 station that never had any news reports. The regularly scheduled programming was interrupted by a breathless announcer who said that there were reports that multiple planes had hit the World Trade Center. I was skeptical. Why? Because I was familiar with the famous Orson Welles “War of the Worlds” incident in 1938, when a radio station broadcast fictional reports of an invasion by aliens from Mars, sparking a minor panic (the public reaction is recounted in Hadley Cantril’s classic book, which I had read in grad school). For some reason, I decided it was possible that the top 40 station was trying to boost ratings by repeating a version of Welles’ stunt. The scenario of multiple airliners crashing into the World Trade Center seemed almost as implausible as an alien invasion. And this station had never broadcast any other news during the weeks I had been listening to it. I decided to withhold judgment until I could check the news on the internet when I got to the office. When I arrived and found that CNN.com couldn’t be accessed, I realized that the reports were true.

The Dutch government’s electronic certification authority, DigiNotar, was compromised by a hacker in July of this year.  DigiNotar handled the hack badly, trying to fix the problem without disclosing it. As a result, DigiNotar’s credentials are being revoked by all of the major browsers.  This means that most web users will not be able to verify the bona fides of any site that DigiNotar has vouched for.  That includes a lot of Dutch government sites, and there are some reports that the Dutch government is leaning on Microsoft to keep the credentials operative for another week.  It also means that DigiNotar will be either out of business or buried in lawsuits that could also reach its parent, VASCO Data Security International.

The hacker who pulled off the compromise has posted messages claiming that the hack was revenge for Dutch peacekeepers’ surrender of thousands of Muslim men to Serb militias during the Balkan wars; the men were executed. The hacker says nothing about Iranian government sponsorship.

So why do I think the Iranian government was involved?

To understand that requires a bit of background about the role of certificate authorities on the Internet.  One of Netscape’s cleverest technological innovations was its solution to the problem of Internet eavesdropping.  It used public key encryption to encrypt the channel between a website and each user.  The user could look up a site’s public key and use that key to encrypt all of the user’s communications with the site.  (I’m oversimplifying here, but that’s the idea.)

The only problem was that the system was open to a “man in the middle” attack, where Mallory turns what’s meant to be a secure link between Alice and Bob into two secure links with himself as a secret hub and Alice and Bob as unsuspecting spokes.

Put another way, if an Iranian user asks Google for its public key, and he uses it to encrypt his communications, how does he know that he’s really using Google’s key?  If the Iranian government wants to read his Gmail, it could intercept his request and send him its own key.  He’d set up a secure channel with the government, which would then simply pass his login credentials on to Google.  For the rest of the session the government would sit in the middle, reading and passing on all the packets from both sides of the transaction.  Not good.

To prevent that, Netscape decided to bake a set of public keys into its browser.  The companies with the baked-in keys were certification authorities.  They could issue certificates vouching for the credentials of every site that wanted to offer secure, encrypted communications.

It was a great system, lightweight and very secure.  But only if the certification authorities kept their credential-signing process completely secure.  If they didn’t, then users would not know who was at the other end of the line, the website they wanted or a man in the middle.

Occasionally, of course, some fraudster would use fake documents to persuade a certification authority to sign credentials for a site the fraudster didn’t own.  That sort of thing could be fixed pretty easily.  Browser providers had already recognized that there had to be a way to revoke website certificates obtained by fraud, so browsers now do an online check each time they use a certificate; in essence, they ask an online server whether the certificate they are about to use has been revoked. So a single fraudulently obtained credential can be rendered harmless as soon as the fraud is discovered.

What happened to DigiNotar was not so easily fixed.  It appears that the hacker gained control of the credential-signing process for some weeks during July of this year, and he signed credentials for hundreds of online sites, including Google, Microsoft, and the CIA.

Now, that’s deeply embarrassing, and it probably would have been enough on its own to spell the end of DigiNotar.  But what came next was even worse.

Starting in August, according to investigators, online revocation checks for DigiNotar certificates jumped. Suddenly lots of people wanted to know whether the DigiNotar certificate for Google had been revoked.  This meant that hundreds of thousands of users were sure that DigiNotar was the authority that had signed Google’s credentials.  (In fact, Google signs its own credentials.) And 99% of the users asking about DigiNotar’s certificate for Google came from Iran. (Even the 1% of requests that didn’t come from Iran seem to have come from proxies and TOR routers in other countries, meaning they too could have been Iranian users.)

Clearly a lot of Iranian users had been fooled into thinking that DigiNotar had issued Google’s credentials.  I can only think of one way that could happen – if the Iranian government and ISPs were systematically intercepting packets bound for Google and saying, in effect, “I’m Google. Here are my credentials, signed by DigiNotar.  Let’s go secure and foil any eavesdroppers.” The user’s browser would say, “Wait a minute while I check to make sure DigiNotar hasn’t revoked your DigiNotar credentials, Google… Ok, you check out, let’s talk.”  As soon as the user started sending his login name and password to the fake Google, the middleman would use those credentials to log in to Google, which would set up a secure communications channel with the middleman.  The entire session would be encrypted unbreakably at every point in the chain save the one that mattered:  the government listening post in the middle. The Iranian government would be sitting pretty — Mallory between Alice and Bob.

Some observations, mostly additional reasons for thinking that this was an Iranian government operation, and what that means:

• The notes posted by the DigiNotar hacker make him sound like a flake and a braggart, hardly the kind of postings you’d expect from the Iranian secret police. Maybe this is misdirection, or maybe he pulled off the exploit and then handed over his loot to the Iranian government, voluntarily or involuntarily. But the implementation of the man-in-the-middle attack was so quick and so smooth that it looks to me as though the hacker was working with the government from the start.
• The same hacker who compromised Diginotar claims to have carried out attacks on Comodo and Globalsign, two other certification authorities. Both companies agree that they were hacked, although Globalsign is not admitting that its credentials were compromised. Again, compromising certification authorities is a great idea if you’re in the business of man-in-the-middle attacks; otherwise it’s got mostly nihilistic look-at-me-trashing-your-infrastructure appeal, which might make you wonder why this hacker has specialized in such attacks if he doesn’t work for the government.
• If this were an Iranian government op, the websites for which fake credentials were issued should be an Iranian government wish list — all the places where it most wants to be in the middle between the site and Iranian users. If so, the point of the fake CIA certificate wasn’t help hackers break into the CIA’s network. The point was to impersonate the CIA on line – to lure dissidents into setting up an apparently secure communications channels with a foreign intelligence service.  Iranian government paranoia about the CIA’s influence is so profound it’s almost flattering, and the Iranian government probably is kidding itself that the election protests were the result of foreign meddling, not the government’s unpopularity.
• In fact, the domains whose credentials were falsified do seem to be a kind of museum of Iranian government paranoia. Along with Google, Microsoft, and the CIA, the hacker made fake credentials for Mossad, MI6, Facebook, Skype, WordPress, Twitter, azadegi.com (an Iranian dissident site in Persian), Walla.co.il (a site in Hebrew), torproject.org, and Yahoo, along with others.  The full list is here.  In some ways, it’s an honor roll.
• It’s also a tell — more evidence that the attack on DigiNotar was government sponsored.  After all, if the DigiNotar hacker was really acting on his own, without government guidance, how did he manage to create so many certificates that would have so much value for an Iranian government man-in-the-middle attack?
• If this is cyberwar, it’s an Iranian government war against its own people.  And a very dangerous one. The flood of revocation checks coming from Iran continued all through August, meaning that anyone in that country who logged on to Gmail or Hotmail or the other honor-roll sites has probably lost control of everything – not just emails they sent in August but their passwords, their stored emails, their stored files, anything that could be accessed by passwords they used in August.
• As a result, DigiNotar’s security breakdown could foretell a new human rights disaster, with hundreds of thousands of victims. And, since we know the IP addresses that checked DigiNotar’s certificates, we could probably identify each victim individually.
• Which raises this question: We know from the online revocation checks that three hundred thousand Iranian users were fooled into using fake  DigiNotar certificates for Google. The same information should be available for Microsoft, Facebook, and every other fake certificate that was issued by the hacker.  Those numbers are the big story, and I don’t understand why reporters have dropped the ball on it, unless they don’t appreciate its significance.
• Mozilla has done a particularly good job of dealing with this issue, communicating more details earlier than most browser companies. Most recently, it called on the certification authorities it bakes into its browser to audit their security — and to put automatic blocks on some of the names, such as Google or Facebook, that are most likely to inspire man-in-the-middle attacks and least likely to change certificate authorities on short notice.  In contrast, Apple handled the whole affair pretty badly, taking days longer than the other big browsers to announce that it was revoking DigiNotar’s credentials.
• Iranian dissidents probably could protect themselves from these attacks by installing a browser extension called CertPatrol, which warns you if a site you’ve visited before has suddenly changed its certificate authority.  CertPatrol likely would have told all those Gmail users that, instead of going to a “Google” site that Google vouched for, they were instead going to a “Google” site that DigiNotar vouched for. They could also protect their Google account by turning on Google’s two-step verification process, which won’t let you log on from strange IP addresses until you’ve typed in a separate code sent directly to your phone.

As always when I venture too far into technical territory, I am quite aware that there are fine points I may be missing.  I welcome corrections and comments.

The prominent role of such people among the rebels highlights one of the risks of the US intervention Libya that I noted here: the possibility that the new government will be as bad or worse than the old. If radical Islamists take over the new regime, their rule would likely be just as oppressive as Gaddafi’s was. In addition, they could use Libya’s oil wealth to sponsor anti-Western terrorism, something Gaddafi has abjured since cutting a deal with the US and Britain in 2003.

To be sure, Belhaj claims that he doesn’t want to establish an Islamist regime and has no desire to support terrorism against the US. However, this is what we would expect him to say at a time when he still needs US support against the remnants of Gaddafi’s regime. Even if he is sincere on these points, other radical Islamists among the insurgents may not be.

It’s also possible that a radical Islamist government will be deterred from supporting terrorism by fear of US retaliation. That still, however, would not make the Libya intervention a success. After all, Gaddafi had been similarly deterred since at least 2003. If a nonterrorist but highly oppressive new government takes power, we would still have gained nothing from removing him.

Obviously, not all of the Libyan rebels are radical Islamists, and it’s far from clear that Belhaj and others like him will control the new regime. A much better outcome is certainly possible, perhaps even probable. On the other hand, many historical examples demonstrate the advantages that well-organized, ruthless radicals have in a revolutionary situation. Often, they can seize power even if more moderate groups have greater public support. The French Revolution, Russia in 1917, Cuba in 1959, and 1979 Iran are among the best examples of this phenomenon.

I worry that the Obama administration and its European allies have not given this problem sufficient consideration. Obama’s greatest success in Libya so far has been to facilitate Gaddafi’s overthrow with only a minimal commitment of US and NATO forces. But that very minimalism will make it more difficult for the US and its allies to prevent radical Islamists from taking over if the latter win the internal struggle for power among the rebels after Gaddafi is gone.

On this point, Obama’s failure to follow the Constitution by getting congressional authorization for the Libya war also increased the chance of failure on the ground. Given the narrow base of political support for the intervention and the lack of “buy-in” by Congress, Obama will find it difficult to increase our level of commitment if it becomes necessary to do so to stave off a radical Islamist takeover. Even setting aside legal considerations, he might well have done better to either get congressional authorization or not intervene in Libya at all.

Here’s a sample:

When you’re done [with the story], you find that NYPD is uniquely determined to find terrorists before they strike.  To do that, NYPD is willing to go far outside its borders — to London, to Jerusalem, even to New Jersey.

It partners with counterterror analysts at the CIA.  It looks for leads in places where terrorists have been found before – in immigrant communities and in mosques, for example – and it doesn’t give terrorists a haven where they know the cops can’t  go.  It takes advantage of its diversity by asking its officers to hang out in communities where they blend in.  It recruits street sources wherever it can find them. It maps the neighborhoods it’s most concerned about.

Shocked yet?

Me neither. 

So what gives? How come we’re getting this story, at this length, at this time?

One possibility is turf…. 

Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney’s top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush — wanting to avoid that kind of scandal in an election year — agreed to “re-fashion” the program into something those DOJ lawyers could approve (the “re-fashioned” program was the still-illegal NSA program revealed in 2005 by The New York Times; to date, we still do not know what Bush was doing before that that was so illegal as to prompt resignation threats from these right-wing lawyers).

That George Bush would knowingly order an eavesdropping program to continue which his own top lawyers were telling him was illegal was, of course, a major controversy, at least in many progressive circles. Now we have Barack Obama not merely eavesdropping in a way that his own top lawyers are telling him is illegal, but waging war in that manner (though, notably, there is no indication that these Obama lawyers have the situational integrity those Bush lawyers had [and which Archibald Cox, Eliot Richardson and William Ruckelshaus had before them] by threatening to resign if the lawlessness continues).

Greenwald also ponders why the Obama Administration never went to Congress. During the Bush Administration, the White House did not seek Congressional approval of some anti-terror initiatives because some within the Administration — most notably, Dick Cheney — wished to establish the principle that the Executive could act unilaterally to address national security concerns. This approach was unwise, but it is easy to understand. But what is the explanation here? It is hard to see what larger legal principle the Administration is trying to vindicate.

UPDATE: What principle is the Administration vindicating? One possibility, suggested in the comments, is the principle that approval by a multinational entity (the UN, NATO, etc.) should be sufficient to authorize U.S. military action. One data point in support of this theory is the line of division within the Administration: attorneys at Justice and Defense versus Koh at State.

The Obama Administration has not repeated the Bush Administration’s early mistakes with OLC, but it is now clear it is making errors of its own. As John Elwood notes below, this is not the first time this Administration has overruled OLC when the office did not reach a desired conclusion. The Administration bypassed OLC’s determination that Congress could not grant full congressional representation to the District of Columbia absent a constitutional amendment.

Writes Balkin:

Obama’s strategy, like Bush’s, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC’s function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC’s. If one is disturbed by Bush’s misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures.

Here is how Balkin concludes:

The fact that Obama is a former professor of constitutional law does not justify his scuttling practices that are designed, over long periods of time, to improve legal deliberations and help ensure that presidents conform to the law. Former professors of constitutional law, like current ones, have been known to disagree among themselves about what the law requires; they have even been known to make mistakes and engage in serious misjudgments.

The fact that Obama may think he is smarter and more learned than George W. Bush also does not justify his practice. The next President, or the one after that, may think themselves smarter than Obama. They will certainly find a group of able lawyers somewhere in their Administration to tell them so. Obama came into office promising to reform the abuses of the Bush Administration and its manipulation of the OLC. The best way to do that is not to create entirely new abuses of one’s own.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch. . . .

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In this case, however, [acting OLC head Caroline] Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.

A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.

The story quotes former Clinton OLC head Walter Dellinger saying the Administration’s legal conclusion was “defensible” despite the problematic decision-making process.  Former Bush OLC head Jack Goldsmith, on the other hand, finds the Administration’s position “aggressive” and unpersuasive.

In an interview, [former CIA officer Glenn L.] Carle said his supervisor at the National Intelligence Council told him in 2005 that White House officials wanted “to get” Professor Cole, and made clear that he wanted Mr. Carle to collect information about him, an effort Mr. Carle rebuffed. Months later, Mr. Carle said, he confronted a C.I.A. official after learning of another attempt to collect information about Professor Cole. Mr. Carle said he contended at the time that such actions would have been unlawful.

It is not clear whether the White House received any damaging material about Professor Cole or whether the C.I.A. or other intelligence agencies ever provided any information or spied on him. Mr. Carle said that a memorandum written by his supervisor included derogatory details about Professor Cole, but that it may have been deleted before reaching the White House. Mr. Carle also said he did not know the origins of that information or who at the White House had requested it.

Intelligence officials disputed Mr. Carle’s account, saying that White House officials did ask about Professor Cole in 2006, but only to find out why he had been invited to C.I.A.-sponsored conferences on the Middle East. The officials said that the White House did not ask for sensitive personal information, and that the agency did not provide it.

Cole comments here.

It is extremely unlikely this lawsuit will go anywhere.  I would be very surprised were it not dismissed on political questions grounds, and simply flabbergasted were a court to actually order that the U.S. military suspend operations in Libya (or anywhere else, for that matter).  If Congress feels that the President has overstepped his authority, then Congress has to act directly, conducting oversight and (if necessary) cutting off funds for operations it seeks to stop.

I doubt Congress will use the power of the purse, but a milder confrontation over the war power is possible.  Speaker of the House John Boehner recently called upon the Adminsitration to seek Congressional approval of the Libya operations or explain why the War Powers Act is inapplicable.  As Charlie Savage reports in the NYT, the Obama Administration has taken the latter course, telling Congress that this is not the sort of operation covered by the Act.

“We are acting lawfully,” said Harold Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with White House Counsel Robert Bauer.

The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes — although unmanned drones operated by the United States periodically fire missiles as well.

They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians.

“We are not saying the president can take the country into war on his own,” Mr. Koh said. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”

The article also contains this interesting tidbit, which raises the possibility that the Justice Department’s Office of Legal Counsel does not wholly agree with the official Administration position. Writes Savage:

While many presidents have challenged the constitutionality of other aspects of the War Powers Resolution — which Congress enacted over President Nixon’s veto — no administration has said that the section imposing the 60-day clock was unconstitutional. In 1980,the Office of Legal Counsel concluded that it was within Congress’s constitutional power to enact such a limit on unauthorized hostilities.

Mr. Bauer and Mr. Koh said the 1980 memorandum remains in force, but that their legal argument does not invoke any constitutional challenge to the act.

It was not clear whether the Office of Legal Counsel has endorsed the White House’s interpretation of what “hostilities” means. Mr. Bauer declined to say whether the office had signed off on the theory, saying he would not discuss inter-agency deliberations.

Another interesting aspect of this conflict is that, in the past Republicans were the ones to be dismissive of the War Powers Act, often claiming it impermissibly interfered with the executive’s commander-in-chief power. Today, however, some seem all too happy to rely upon the Act if they think it can hamstring a Democratic president, just as some Democrats seem to forget the limits on executive authority they championed under Presidents named Reagan or Bush.

The F.B.I. recently briefed several privacy advocates about the coming changes. Among them, Michael German, a former F.B.I. agent who is now a lawyer for the American Civil Liberties Union, argued that it was unwise to further ease restrictions on agents’ power to use potentially intrusive techniques, especially if they lacked a firm reason to suspect someone of wrongdoing.

“Claiming additional authorities to investigate people only further raises the potential for abuse,” Mr. German said, pointing to complaints about the bureau’s surveillance of domestic political advocacy groups and mosques and to an inspector general’s findings in 2007 that the F.B.I. had frequently misused “national security letters,” which allow agents to obtain information like phone records without a court order.

Valerie E. Caproni, the F.B.I. general counsel, said the bureau had fixed the problems with the national security letters and had taken steps to make sure they would not recur. She also said the bureau, which does not need permission to alter its manual so long as the rules fit within broad guidelines issued by the attorney general, had carefully weighed the risks and the benefits of each change.

“Every one of these has been carefully looked at and considered against the backdrop of why do the employees need to be able to do it, what are the possible risks and what are the controls,” she said, portraying the modifications to the rules as “more like fine-tuning than major changes.”

Helped by the recession, more active recruiting and a sea change in student perceptions of the military, enrollment in ROTC programs on college campuses is booming.

Even with ongoing U.S. involvement in conflicts in Afghanistan, Iraq and now Libya, participation in the program has surged 27% over the last four years — to 56,757 men and women, according to the Defense Department. The military boosted the number of ROTC scholarships to help expand the wartime officer corps, and the recession made the offers attractive to students.

Today’s college students, who never faced a military draft and whose childhood memories include the terrorist attacks of Sept. 11, 2001, are more receptive than their parents’ generation to seeing fellow students in uniform. Returning veterans who served in Iraq and Afghanistan and are now enrolled in college also create a more sympathetic, and familiar, image of the military.

In another sign of the changing times, the congressional rescinding last year of the “don’t ask, don’t tell” ban on gays serving openly in the military has recently led Stanford, Harvard and several other elite universities to take steps to welcome the ROTC back to their campuses for the first time in 40 years.

On-campus military training still raises hackles for some. Yet even critics acknowledge that most current college students are willing to accept the ROTC.

I previously wrote about the return of ROTC here and here. Although I thought that DADT was a shortsighted and unjust policy, I also argued that banning ROTC and military recruiters from campus was not the right way to combat this form of anti-gay discrimination. Be that as it may, the return of ROTC to schools that had previously banned it is a positive development.

Ilya Somin, a professor at George Mason University’s School of Law, echoed Greenberg’s argument that “targeting individual enemy combatants in war is perfectly legal and moral”.

Somin points at US targeting of Admiral Isoroku Yamamoto, the commander of the Japanese fleet during World War II, and the British and the Czechs’ killing of German SS General Reinhard Heydrick [sic] in 1942, as precedents.

“Surely international law does not give terrorist leaders greater protection than that enjoyed by uniformed soldiers such as Admiral Yamamoto.”

“And if it is legal to individually target the commander of a uniformed military force, it is surely equally legal to target the leader of a terrorist organisation, including Osama bin Laden,” he told Al Jazeera.

To my knowledge, hardly any serious commentators claim that the targeted killing of enemy military commanders such as Yamamoto and Heydrich is either illegal or immoral. With the possible exception of Justice John Paul Stevens (who questioned the morality of the Yamamoto attack, but not its legality), everyone understands that individual military officers are legitimate targets. A capable high-ranking officer is a military asset in much the same way as an individual anonymous mass of low-ranking soldiers. In Heydrich’s case, there is the complicating factor that, as one of the architects of the Holocaust, he was an even greater criminal than Bin Laden. However, this was not the reason why he was targeted for assassination by the Allies (who in early 1942 did not yet know of his crucial role in the Holocaust). And Admiral Yamamoto was not guilty of committing any atrocities; the US targeted him simply because he was a more effective commander than his likely replacements.

What is true of uniformed officers surely also applies to leaders of terrorist organizations such as al Qaeda. The latter, too, represent enemy military assets that we can legitimately target in wartime. If anything, targeting terrorist leaders is more defensible than targeting individual uniformed officers. Unlike uniformed soldiers, terrorist leaders openly target civilians and don’t even pretend to obey the laws of war.

The only significant countervailing consideration is that terrorists are sometimes more difficult to distinguish from innocent civilians than military officers are. This creates the danger that unscrupulous governments will use bogus accusations of terrorism as a justification for killing people they dislike. This is a genuine problem. But it doesn’t justify a categorical ban on the targeted killing of terrorists. Instead, such abuses can be constrained in two other ways.

First, targeted killings, like other military tactics, can only be used against terrorists in conflicts that are large-scale enough to qualify as a war. One can legitimately debate the exact point at which a terrorist threat rises to that status. But surely al Qaeda, given the enormous scale of its atrocities, qualifies. The boundary between war and small-scale conflict is also disputable in the case of traditional armed confrontations between states, as the recent debate over the US military intervention in Libya demonstrates. As with many legal concepts, the boundary between “war” and other types of conflict is difficult to define with absolute precision. But most real-world cases are clear enough to readily be classified on one side of the line or the other.

Even when we do have an antiterrorist conflict that qualifies as a war, the deliberate targeting of innocent people under a pretextual accusation of terrorism can still be prosecuted as a war crime. In the same way, officials can be prosecuted for deliberately bombing a civilian target under a bogus claim that it is actually an enemy military unit. No one argues that the use of air strikes or artillery against military targets is categorically illegal or unjust merely because governments sometimes use bogus military rationales to justify attacks on civilians. The same reasoning applies to the abuse of targeted killings.

Sometimes, of course, a targeted killing may end up killing innocent people even though the government that ordered the operation genuinely believed that they were attacking a terrorist. But the same risk is present in conventional military operations against uniformed soldiers. Indeed, far more innocent civilians have been accidentally killed by air and artillery attacks aimed at military units than by targeted killing operations gone awry.

In sum, if we assume that the targeted killing of enemy military personnel is a legal and moral tactic in wartime, the same reasoning also justifies the targeted killing of terrorists.

UPDATE: I previously defended the morality of targeted killing of terrorists here.

UPDATE #2: Kevin Jon Heller responds to this post here, but offers no substantive critique of my argument. He seems to assume that it is obviously wrong to believe that there is no “difference between targeting a military officer in an international armed conflict and targeting a terrorist in something that Ilya Somin is really convinced is a war,” but doesn’t explain why. He also accuses me of claiming that “everything the US does is fine,” which of course I did not say. Heller also conveniently ignores the reason I gave for why the conflict with al Qaeda qualifies as a war: the massive scale of Al Qaeda’s terrorist activities.

UPDATE #3: Heller responds again in an update to his post. He claims that he didn’t make a substantive argument because I didn’t either. But of course my post notes multiple relevant similarities between terrorists and enemy uniformed military officers. Heller also points to this earlier post, where he claims that he addressed “precisely the IHL issues that [Somin] ridicules.” Setting aside the point that I didn’t “ridicule” anything, Heller’s earlier post actually reaches a conclusion very similar to mine:

I have no doubt that killing UBL was legal. To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways. The best rationale is that UBL was a member of an organized armed group (”original” al Qaeda) taking part in the armed conflict in Afghanistan. In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality.

Indeed, Heller’s theory of when targeted killings can be used against terrorists is actually broader than mine. He seems to believe that we can target them any time they are members of “an organized armed group” engaged in an “armed conflict” whereas I argued only that we can do so when they are engaged in an armed conflict that qualifies as a war.

UPDATE #4: In this CNN video, former Clinton administration solicitor general Walter Dellinger makes the argument that killing Bin Laden (and presumably other similarly situated terrorists) was legal because he was an “enemy combatant.” Notice that Dellinger’s argument, like mine, does not distinguish between enemy combatants who are uniformed members of a military and those who are not.

UPDATE #5: Kevin Jon Heller digs his hole deeper in a further update to his post:

Somin replies again, and only makes things worse for himself. He claims that “Heller’s theory of when targeted killings can be used against terrorists is actually broader than mine. He seems to believe that we can target them any time they are members of ‘an organized armed group’ engaged in an ‘armed conflict’ whereas I argued only that we can do so when they are engaged in an armed conflict that qualifies as a war.” Somin obviously doesn’t understand my post, because I was quite clearly discussing targeting in non-international armed conflict, not in “armed conflict” generally, which is a meaningless concept in terms of IHL.

That said, Somin is absolutely right that his view of targeted killing is narrower than mine — just not in the way he imagines. It is, of course, legally impossible for a state to be in a “war” — i.e., in an international armed conflict — with a non-state actor like al Qaeda, as the Supreme Court recognized in Hamdan.

Nothing in Heller’s argument turned on a distinction between “international” and “non-international” armed conflict, unless he is prepared to claim that targeted killing is illegal in the former. Indeed, the earlier post Heller references does not even mention that distinction. As for Hamdan, the Supreme Court majority opinion in that decision repeatedly refers to the “war with al Qaeda” and also describes the Civil War as a “war,” even though the latter was not an international armed conflict, since neither the US nor any other nation recognized the Confederacy as an independent state. Clearly, the Court does not share Heller’s view that it is “impossible” for a state to be in a war with a non-state actor. The Court did rule that the war with al Qaeda was not an “international armed conflict” because it is not against a state. But, in its view, at least some non-international armed conflicts still qualify as wars.

From an international law perspective, it’s worth noting that the operation against Bin Laden is an example of targeted killing. Although we don’t yet know very many details, it’s pretty obvious that the US targeted Bin Laden deliberately, something the President more or less admitted in his speech, where he said that we have been tracking Bin Laden for many months (presumably for the purpose of targeting him as an individual). In the past, such targeted killings have drawn criticism from human rights organizations and others who claim that they violate international law. Co-Conspirator Kenneth Anderson described the debate in this excellent article. It’s unlikely that there will be much criticism of the operation against Bin Laden. However, the broader debate over the law and morality of targeted killings is likely to continue. I gave my own thoughts back in 2006, at the time of targeted killing of Abu Musab Al-Zarqawi. I think the central point holds true today:

In my view, targeting terrorist leaders is not only defensible, but actually more ethical than going after rank and file terrorists or trying to combat terrorism through purely defensive security measures. The rank and file have far less culpability for terrorist attacks than do their leaders, and killing them is less likely to impair terrorist operations. Purely defensive measures, meanwhile, often impose substantial costs on innocent people and may imperil civil liberties. Despite the possibility of collateral damage inflicted on civilians whom the terrorist leaders use as human shields, targeted assassination of terrorist leaders is less likely to harm innocents than most other strategies for combatting terror and more likely to disrupt future terrorist operations.

That does not prove that it should be the only strategy we use, but it does mean that we should reject condemnations of it as somehow immoral.

UPDATE: This Reuters report confirms that the special forces were instructed to kill Bin Laden rather than capture him (HT: Instapundit).

On November 5, 2009, witnesses say, Maj. Nidal Hasan leaped on a desk at a Ft. Hood readiness center, shouted “Allahu Akbar” and began executing the unarmed soldiers all around him.  Thirteen people were dead and thirty-two wounded before an armed police officer managed to shoot Hasan five times.  Now confined to a wheelchair, Hasan is expected to go on trial shortly.

Anyone who paid attention to news coverage after the rampage knows that the Army had plenty of warning about Hasan’s Islamist views.  Classmates say that he questioned whether he could fight against other Muslims and made presentations justifying the murder of non-Muslims, suggesting that Muslim-Americans in the armed forces might kill other servicemembers, defending Osama bin Laden, and justifying suicide bombers.  The servicemembers in the audience were so appalled that the instructor finally stopped one of Hasan’s presentations.  Off the record, it seems, everyone thought Hasan was dangerous, a nutjob, or an Islamist, and perhaps all three.

On the record, though, no one would criticize him.  You don’t rise in the armed forces if you can’t read your superiors.  And the rising officers who met Hasan knew what their superiors wanted without having to be told.  Islam was a religion of peace, and Muslims in the Army were a welcome sign of diversity. Treating Hasan as a dangerous Islamist would put those messages at risk.

And that might be bad for their careers.  So instead they spun Hasan’s rants into gold.  His 2007-2008 evaluation praises Hasan for having “focused his efforts on illuminating the  role of  culture and  Islamic faith  within the Global War on Terrorism.”  It adds that his “work in this area has extraordinary potential to inform national  policy and military strategy. … His unique interests have captured the interest and attention of  peers and mentors alike.”

The next year was the same, full of praise for Hasan’s “keen interest in  Islamic culture and  faith  and his shown capacity to contribute to our psychological understanding of  Islamic  nationalism and how it  may relate to events of  national security and Army interest.”

So far, no surprises.  It was clear within a few days of the shootings that political correctness had played a role in Hasan’s promotion and retention.  What the Lieberman-Collins report tells us, though, is how big a role political correctness played even after the government discovered through intercepts that Hasan was corresponding with the Yemeni-American Islamist, Anwar al-Awlaki.  (Awlaki’s name is redacted from the report but has been widely reported in the press.)

The intercepted correspondence went to the FBI’s San Diego office. According to the Lieberman-Collins report, Hasan’s initial correspondence wasn’t conclusive proof that he was a risk, but it begged for investigation.  His messages, it says, “meandered in  a ‘stream of consciousness,’ hinted at the answer Hasan  wanted to hear, and  had content that contravened officership standards.”  According to the report, “The communications on their face  raised questions of  whether Hasan was a potential counterinteligence or  counterterrorism threat.”  That’s how the FBI office in San Diego saw it too. Because Hasan was stationed at Walter Reed medical center, San Diego asked the FBI’s Washington field office to follow up.

The Washington field office booted the assignment.  It waited until the 90-day deadline for responding to inquiries was nearly up.  Then a detailee spent four hours looking at Hasan’s records.  The detailee found no mention of Hasan in terrorism databases but he did find the evaluation reports in which Hasan’s public displays of radicalization were cleverly repackaged as praiseworthy research into the “role of culture and Islamic faith within the Global War on Terrorism.”

So, put yourself in the place of the agent assigned to this problem.  You’ve got an Army major sending weird but not quite damning emails to al-Awlaki.  The Army seems to know he’s working in the area of Islam and terrorism, and he isn’t in the suspected terrorist database.  You could go talk to him, or send an official request for information to the Army.  If you do, though, there’s a chance you’ll be accused of trying to wreck Hasan’s career on flimsy evidence — on the basis of his protected religious and political speech, no less.  In addition to constitutional violations, you could be slammed for racism, or Islamophobia, or cultural insensitivity. After all, this is happening in May of 2009, and the Justice Department is under new management, management that is sending very different signals about its priorities in dealing with terrorism and Islam.

Meanwhile, the evaluation reports are staring you in the face.  They offer an easy way out of the dilemma.  “Research, yeah, that’s the ticket,” I imagine the agent saying to himself, “Hasan could be doing research.”  So he blows off San Diego’s concern without interviewing Hasan or doing anything else that might cause waves.   San Diego complains. Washington fires back. And neither office does enough followup to discover the rest of Hasan’s correspondence with Awlaki.  (There’s a long and interesting inside-baseball story about that, and the FBI’s relationship with other agencies, in the report that I may discuss in another post.)

Next thing the FBI in San Diego knows, there are thirteen dead and 32 wounded at Ft. Hood.  As the reports hit the wire, one San Diego agent points and says to another, “”You know who that is?  That’ s  our boy!”

It was indeed. You’d think a loss like that would cure DOD of political correctness.

You’d be wrong.

DOD quickly stood up an independent review of the Ft. Hood shooting by former Secretary of Veterans Affairs Togo West and retired admiral Vern Clark.  A staff of full-time contractors and military personnel served West and Clark, who were asked to look hard at internal threats to the military. The result of all this effort is a model of politically correct mush — a classic of contractor-speak, in fact.

Fifty members of the military community were gunned down, their ears still ringing with “Allahu Akbar!” shouted by a man wearing their own uniform. And the official DOD report on the attack never mentions Islam once.  In contrast, it touches on the threat posed by “low self-esteem” four times.

The closest the report comes to blaming Islamic extremism for the attack is a single sentence identifying the sources of domestic terrorism.  In case you’re wondering, they include “animal rights, environmentalism, nationalism, white supremacy, religious causes, and right-wing politics.”

So there you are.  I can’t help wondering if Secretary West and Adm. Clark expect the Pentagon to take on the threats in that order. That way, DOD would first stem the threat of excessive nationalism in the military; then it could turn to the threat posed by “religious causes.”  And maybe, just to avoid discrimination, it could do the religions alphabetically — getting to Islamic extremism after it mops up Episcopalian extremism and just before tackling Jehovah’s Witness extremism.

Okay, that’s a little unfair to Secretary West and Adm. Clark.  But only a little.  In its delicate sidestepping of Hasan’s obvious motivation, and its irresponsible sidestepping of the shocking PCness epitomized by Hasan’s evaluations, the West/Clark report is part of DOD’s problem.  It stands in stark contrast to the aggressive DOD action in 1996, when two Army soldiers carried out a racially motivated murder of an African-American couple.  Then, the Army had no trouble adopting a policy on extremist activities that forthrightly named white supremacist activities as a basis for disciplining soldiers.

When it comes to jihad, though, the mealy-mouthed West/Clark report tells us everything we need to know about DOD’s thinking. As the Lieberman-Collins report makes clear, the Army had all the tools it needed to deal with Hasan’s radicalization; it had used them recently and to good effect against racist and white supremacist groups in the Army.  As the Lieberman/Collins report makes clear, however, Islamic supremacy is an ideology that DOD refuses to acknowledge:

Neither of  Secretary Gates’ two memoranda directing implementation of particular West/Clark recommendations mentions violent Islamist extremism explicitly.  Both memoranda continue to down play the unique threat of violent Islamist extremism by portraying it as a subset of a more general threat – either workplace violence or undefined “extremism” more generally.  We remain concerned that DoD will  not appropriately revise policies to address violent Islamist extremism among servicemembers and that DoD personnel will not be specifically trained concerning violent Islamist extremism.

That sounds like a safe bet to me.  But it’s a bet likely to be measured in deaths not dollars.

If there’s anything I’ve learned in government, it’s that intellectual climate matters.  The 9/11 attacks were aided greatly by an intellectual climate in which privacy and civil liberties had far more practical value than preventing terrorist attacks. And a climate in which Islamic radicalization is described only in euphemisms didn’t just protect Hasan from scrutiny.  It help the next recruit as well.

That’s why efforts to shut the Overton window on inquiries into domestic radicalization are not just wooly-minded.  They’re dangerous.  This time, political correctness runs the risk of getting Americans killed – by discouraging counterterrorism officials from doing their jobs properly.

Senators Lieberman and Collins deserve credit for their courage in holding the window open.

The government should fully investigate how this major breach of national security occurred. But prosecuting Assange would be a mistake.

The first problem with going after Assange is that the effort is likely to fail. Extraditing Assange from England (where he is now) or Sweden (where he may go to face charges of sexual assault) would not be easy, especially since Assange’s actions might be deemed a “political offense,” for which exceptions are made to extradition obligations.

Even if the U.S. government surmounts this hurdle, a criminal conviction is not assured. The most relevant law, the Espionage Act, is famously overbroad and thus an uncertain basis for prosecution. This is one reason the government has never successfully prosecuted a member of the media for soliciting or publishing classified information. Nor has the government ever successfully prosecuted a non-media organization for solicitation or receipt of classified information.

A failed attempt to prosecute Assange would be worse than not prosecuting him. It would make the United States look even more ineffectual than it does as a result of the leaks.

Goldsmith goes on to explain that a successful prosecution of Assange — however unlikely — could threaten press freedoms. It’s one thing to go after individuals who leak government secrets, but quite another to prosecute those who obtain such secrets and then distribute them further. Journalists solicit and distribute classified information all the time, but they should not be prosecuted for it (an argument I’ve made as well). Leaks of sensitive information can certainly harm national security, but they can also expose government wrong-doing. Federal efforts are better spent ferreting out and prosecuting leakers than going after the journalists, bloggers and internet troublemakers who disseminate leaked information further.

Detention policy fatigue has set in and positions have become sclerotic. It’s not a front burner issue for very many people, in the executive, in Congress, or even in the academy or the activist community. That is for a lot of reasons. They include that as the population of Guantanamo has been reduced as well as note taken of former detainees returning to the fight once released, the whole question of detention looks much murkier than it was back in the days when it was a marker of pro-Bush or anti-Bush. It was murky then too, as Ben’s earlier work noted back in those days, but it was seen as clear-cut. The very fact of it being in the Obama administration’s hands has stripped away some of the angelic veneer of “close Guantanamo.”

But one striking thing to my mind about the somewhat sidelined debate over Guantanamo and detention policy is the extent to which it feels like the debate is less about figuring out what, realistically, to do going forward, than people inside and outside the administration looking to “position” themselves – what they said before and the policies they are responsible for now, what they said about the Bush administration and what they say about the Obama administration, and how to avoid charges of inconsistency if not hypocrisy.

I understand that and certainly would be doing it myself if in a position in which anyone cared what I thought then or now. Reputation and consistency matter, partly for oneself, but also for the important reason that administrations change, and at some point there might well be a Republican administration that also has to deal with Guantanamo and detention. It is important to hold people to consistent positions if only so that policies accepted today because it is Obama do not somehow transmute into grounds for excoriation when it is the President Anderson (Republican, frmr gov. State of Vulcan) administration. The positioning is part of that, and it has an important purpose. As in so many areas of the war on terror since 9/11 – detention and Guantanamo, targeted killing and drone warfare, etc. – we stand in deep need of “institutional settlement.” Sauce for the goose is a vital part of that.  Also, I should add, I don’t mean by this that people can’t or shouldn’t change their minds: of course they should as they think correct.  It’s that if one does, one has to admit to it and, to the extent one can, explain why.

But preoccupation with positioning onself in relation to one’s views in other times and settings is only one issue. Too much attention to it makes it hard to look pragmatically at forward looking institutional settlement. This is the vital role played by Ben Wittes, in his institutional work at Brookings and especially the deep databases of information on Guantanamo that his office has developed over the last couple of years, but also in his several books on the topic. The central theme of all that work is centrist and pragmatic: First, that the issues of detention are not going away, because there are people in US government hands that will not be released, nor will they be (successfully) tried. We would have more of them, but because their intelligence value is now outweighed by the problems of holding and interrogating them, we have instead chosen against detaining people any more. That is not quite the same as saying that we have a policy preference for targeted killing; the accurate statement is to say that we have a policy against detention.

Second, institutional settlement looking foward has to involve Congress and the Executive, as the two political branches of government, coming together. This is a constant theme for Ben, Jack Goldsmith, Bobby Chesney, and lots of other people (including me, in a short New York Times magazine piece in 2006, “It’s Congress’s War, Too,” which says it all). One of Ben’s lessons is that the current situation looks stable, but it’s not.  It’s just a stalemate. A stalemate in which there is not enough at stake for players in the administration or Congress to spend political capital dealing with things. Things apparently sit; it is more accurate to say that they drift.

Below the fold is the book description. Highly recommended.

“Our current stalemate over detention serves nobody—not the military or any other component of the U.S. government that has to operate overseas…It is a system that no rational combination of values or strategic considerations would have produced; it could have emerged only as a consequence of a clash of interests that produced a clear victory for nobody.”  — from the Introduction

Benjamin Wittes issues a persuasive call for greater coherence, clarity, and public candor from the American government regarding its detention policy and practices, and greater citizen awareness of the same. In Detention and Denial, he illustrates how U.S. detention policy is a tangle of obfuscation rather than a serious set of moral and legal decisions. Far from sharpening focus and defining clear parameters for action, it sends mixed signals, muddies the legal and military waters, and produces perverse incentives. Its random operation makes a mockery of the human rights concerns that prompted the limited amount of legal scrutiny that detention has received to date. The government may actually be painting itself into a corner, leaving itself unable to explain or justify actions it may need to take in the future. The situation is unsustainable and must be addressed.

Preventive detention is a touchy subject, an easy target for eager-to-please candidates and indignant media, so public officials remain largely mum on the issue. Many Americans would be surprised to learn that no broad principle in American jurisprudence actually prohibits preventive detention; rather, the law “eschews it except when legislatures and courts deem it necessary to prevent grave public harm.” But the habeas corpus legal cases that have come out of the Guantánamo Bay detention facility—which remains open, despite popular expectations to the contrary—have addressed only a small slice of the overall issue and have not—and will not—produce a coherent body of policy.

U.S. government and security forces need clear and consistent application of their detention policies, and Americans must be better informed about them. To that end, Wittes critiques America s current muddled detention policies and sets forth a detention policy based on candor. It would set clear rules and distinguish several types of detention, based on characteristics of the detainees themselves rather than where they were captured. Congress would follow steps to “devise a coherent policy to regulate the U.S. system of detention, a system that the country cannot avoid developing.”

[A]s Rauf repeated — again — on Frank Beckmann’s conservative radio show last Friday, he strongly opposes Hamas and terrorism. “Hamas is a terrorist organization. They have committed terrorist acts,” he told Beckmann in an impassioned denunciation of Islamic extremists who “pose more of a threat, in fact, to Muslim-majority societies,” where bombings have killed thousands of innocent people…..

In an interview last September on Larry King Live, Rauf told guest host Soledad O’Brien, “I condemn everyone and anyone who commits acts of terrorism. And Hamas has committed acts of terrorism….”

“The reason we were supported by many of the masses of the ex-Soviet countries is because publicly we called their leadership — Reagan called them — an ‘Evil Empire,’” Rauf told Beckmann in urging American leaders to denounce corruption in Muslim nations. “This had great appreciation among the masses. We called their leadership for what they were.”

Since I wrote my August post, Rauf has indeed denounced Hamas as a terrorist organization, and he deserves credit for that. It is interesting, however, that he pointedly refused to do so before the Ground Zero Mosque controversy became a major national issue. Cynics might interpret his new stance as an effort to appear moderate and allay criticism. Payne claims that the Park51 project website denounced Hamas as a terrorist group earlier than September. But I found no record of such a denunciation when I looked in August.

That doesn’t necessarily mean that Rauf is insincere when he denounces Hamas today. It could be that he had a genuine change of heart on the issue. Alternatively, maybe he believed that Hamas is a terrorist group all along but refused to publicly admit it until recently (perhaps for fear of alienating potential Palestinian supporters of his group). On balance, I think he deserves the benefit of the doubt on this issue, unless and until we get substantial proof that he’s insincere.

On the other hand, Payne’s column says nothing about any of Rauf’s other objectionable statements. As far as I know, he has not retracted them. It is true, as Payne says, that Rauf praises American religious freedom, denounces Al Qaeda, and urges various Muslim governments to become less repressive. I noted these points in my original post. But that does not address his comments on 9/11, moral equivalency, and Iran. As I noted in the earlier post:

I don’t think the man is a radical Islamist or a defender of terrorism. Nonetheless, Rauf’s statements are sufficiently troubling that there is good reason to to be skeptical about his mosque initiative unless and until he retracts the above comments or proves that he was somehow misquoted. To borrow from [Charles] Krauthammer’s Treblinka analogy [which I criticized earlier in the post], it is as if the hypothetical German cultural center there had a leader who claimed that US and British efforts in World War II were morally comparable to the crimes of the Nazis, asserted that Jewish leaders were “accessories” to the rise of Nazi anti-Semitism, refused to describe the SS as mass murderers, and praised the ideology of a fascist dictatorship. Even if he also denounced the Holocaust, claimed to oppose anti-Semitism, and urged fascists to drop some of their most objectionable policies, we could legitimately harbor serious doubts about his organization. The same goes for Rauf and his Islamic Cultural Center.

In sum, I think that the jury is still out on Rauf and his record. I have not kept close track of all his statements over the last several months, so it’s possible that he has retracted or reinterpreted his other objectionable comments as well. If so, readers will have to judge the sincerity of any such retractions for themselves.

To avoid misunderstanding, however, let me reiterate what I said here and here: Even if Rauf does have deeply objectionable views, the use of government power to shut down his Islamic Cultural Center would still be an immoral and unconstitutional violation of freedom of speech, freedom of religion, and property rights. A government that violates such rights when it seems popular to do so is far more dangerous than a mosque run by an imam with views like Rauf’s – regardless of where it is located. At the same time, it should be possible to defend Rauf’s rights while also being skeptical about his record and his credentials as a Muslim “moderate.”

U.S. District Judge John Bates said in a written opinion Tuesday that al-Awlaki’s father does not have the authority to sue on his son’s behalf. But he says the case raises serious issues about whether the United States can plan to kill one of its own citizens.

Quick update:  On a fast read of the opinion – well, anyone interested in these questions needs to read it post haste.  Far from merely being a narrow discussion of standing, it goes on to discuss the political question doctrine in great detail, and concluding on this point:

…this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, see El- Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens. While it may be true that “the political question doctrine wanes” where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. [p. 77 opinion, emphasis added]

But opinion contains much, much more.  A very interesting discussion of why the Alien Tort Statute does not offer an avenue; state secrets doctrine; there is a lot of stuff here.  More when I’ve read it more closely.  It is an impressive work in judicial opinion-crafting by Judge Bates, regardless of what one thinks of the outcome.

Update:  Larkin Reynolds at Lawfare offers a bunch of snippets from the opinion.  Also at Lawfare, Bobby Chesney offers an objective outline, sans commentary, of the quite long opinion, and Jack Goldsmith and Ben Wittes weigh in with commentary.

I was puzzled, frankly, at the coverage in both the Post and the Times this morning. Charlie Savage, for example, seemed to think that the language I quoted above was what Judge Bates rejected, if I understood his writeup correctly. Rather, this is what Judge Bates found, albeit in a collateral and perhaps purely dicta way, given that he did not need to reach this once he had dismissed on standing grounds. The best one might say for plaintiffs here is that Judge Bates confined himself to narrow facts, even while concluding that the executive’s decision was unreviewable.

Basically, I agree with Ben’s five points at Lawfare, and agree with him that the ruling is likely bullet-proof on appeal. The one point I’d add to Ben’s discussion is that it seems to me that Judge Bates’ motivation was to provide at least the beginning of clear institutional settlement on a crucial aspect of the executive’s national security prerogatives, even if it was arguably “mere” dicta.

I’d also note in passing that this holding illustrates in a backhanded way one of the aspects of the Alien Tort Statute that I find troubling, at least as applied to conduct outside the territorial United States. Viz., it confers special rights upon aliens that are not available to US citizens – including, in this case, a citizen named Al-Aulaqi. His alien father can at least begin to bring a claim that the citizen son cannot, because he is, well, not an alien. This makes sense to me in one context only, viz., when the conduct occurs in the territorial United States, and the alien present in the US might suffer at the hands of state courts or US citizens, who themselves have ample avenues open to them; it levels the playing field. Abroad, arguably, it gives aliens something that US citizens don’t have.

Although the Supreme Court hasn’t evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that “a particular airport security screening search is constitutionally reasonable provided that it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.’ ”

In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both “minimally intrusive” and “effective” – in other words, they must be “well-tailored to protect personal privacy,” and they must deliver on their promise of discovering serious threats. Alito upheld the practices at an airport checkpoint where passengers were first screened with walk-through magnetometers and then, if they set off an alarm, with hand-held wands. He wrote that airport searches are reasonable if they escalate “in invasiveness only after a lower level of screening disclose[s] a reason to conduct a more probing search.”

As currently used in U.S. airports, the new full-body scanners fail all of Alito’s tests. . . .

U.S. courts have held that “routine” searches of all travelers can be conducted at airports as long as they don’t threaten serious invasions of privacy. By contrast, “non-routine” searches, such as strip-searches or body-cavity searches, require some individualized suspicion – that is, some cause to suspect a particular traveler of wrongdoing. Neither virtual strip-searches nor intrusive pat-downs should be considered “routine,” and therefore courts should rule that neither can be used for primary screening.

Would the current Supreme Court strike down the TSA’s new security measures as unconstitutional?  Rosen thinks it should, but doesn’t argue that it would.

UPDATE: A reader points me to this new article by a University of Mississippi law student in the Richmond Journal of Law and Technology likewise concluding that the use of full-body-imaging scans as a mandatory part of airport screening presents serious constitutional problems under current precedent.

It may be that several vocal opponents of the new TSA process are Koch-funded — that wouldn’t surprise me — but that has absolutely nothing to do with Tyner, and The Nation, for which I have high regard, owes him an apology and retraction for the innuendo it smeared on him without a shred of evidence.  It’s difficult enough for ordinary citizens to take a principled stand like this against the Government; knowing that they’re going to be subjected to this sort of baseless hit job makes it less likely that other citizens will be willing to do so.

If The Nation plans on standing up for the TSA’s new security procedures, it better get ready.  As Robert Poole points out, the new body scanners (and pat-downs for those who refuse) are  in use at less than 20 percent of the airport security lanes in the country.   Most air travelers have yet to be subjected to the new procedures.  As a consequence, the recent groundswell of TSA criticism is likely only the beginning.  Writes Poole: “as more scanners are installed and people are forced to choose between body scans and pat-downs, the public is likely to become more infuriated with the TSA.”

UPDATE: The Nation‘s editor, Katrina vanden Heuvel, apologizes to John Tyner here.

Plaintiffs’ case is based on the original intent of the Framers of the Constitution to take the power of peace and war out of the hands of a single executive and place it in the hands of Congress. Plaintiffs’ arguments rely heavily on the records of the Constitutional Convention on June 1, 1787, and the rulings of the Supreme Court in the first half of the 19th century.

The petition notes that since the end of World War II, U.S. presidents have regularly ignored the intent of the Framers and instituted foreign hostilities without obtaining a Declaration of War from Congress. However, the petition also says that in none of the prior wars did the President take the initiative to invade a sovereign nation without provocation. According to the petition, in the first half of the 19th century, the Supreme Court emphasized that the plain language of the Constitution meant that the President could not launch an all-out war in the absence of a Congressional Declaration.

The petition also notes that no federal court has ever examined the debates at the Constitutional Convention on June 1, 1787, when the decision as to the constitutional allocation of the war powers was decided, and asks the Supreme Court to at last take up the issue. Since World War II, the lower federal courts have dismissed suits challenging the President’s authority to wage war on technical procedural grounds.

The case raises fundamental issues concerning the intent of the Framers of the Constitution and the role of the Supreme Court as the ultimate interpreter of our national charter. The petition reminds the Court of the famous words of Thomas Jefferson that in Article I Section 8 of the Constitution the Framers had provided “an effectual check to the Dog of War by transferring the power of letting it loose from Executive to Legislative body, from those are to spend to those who are to pay.”

The case was dismissed by a federal district court due to lack of standing and the political question docrtrine.  The U.S. Court of Appeals for the Third Circuit affirmed, also concluding the plaintiffs could not demonstrate standing.  Neither decision is at all surprising, and I would be quite surprised were the Supreme Court to grant cert, let alone to find this case justiciable.

(Hat tip: How Appealing)

Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen’s statements at what they say, Barack Obama is not therefore a “serial killer” for having directly ordered the CIA to carry out what Mary Ellen characterizes as “crimes” and Harold Koh at the least an aider and abetter. Ben has in mind, for example, statements in Mary Ellen’s widely noticed article, “Unlawful Killing with Combat Drones,” which among other things declares that “members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime.”

One might argue Ben’s choice of provocative words in the debate – serial killing – or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well). His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator. Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law. Crime is a charge of more than mere non-compliance. If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you.

And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It’s not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental “crimes” for which corporations routinely pay criminal fines in the domestic United States. Killing is not like that, presumably, at least not when it’s systematic, systemic, large-scale, and under direct orders.

The article by Mary Ellen specifically says who commits a crime – members of the CIA. Yet they are not acting as rogues in this, but rather under direct orders of the President. If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes. So what is it to be? I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both. I take it that was Ben’s larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing.

I have another concern beyond this, however. It goes to one of the responses in the debate from Mary Ellen when Ben insisted in pressing the point. It is that it would be politically unrealistic to consider going after Barack Obama or Harold Koh, so there is no point to raising the issue of criminality and, I took by implication, Ben was engaging in a strawman argument to do so. But why should it be seen that way? Ben did not assert the question of criminality in the first place, and then suddenly or unreasonably put it on the table, after all; it is not a proposition tossed up by Ben. “Crimes” as an issue were raised in the first place by Mary Ellen against CIA officers. Ben has pointed out that they are acting under perhaps the clearest, deliberately and (admirably, in my view) least deniable set of orders from the President of the United States in a long time on contentious national security matters. If there is a crime, there must somewhere be a criminal or else it is merely a series of unfortunate events; if there is a criminal, he or she did not act alone, because these agents acted under instructions from a principal.

So this is my concern: If it is politically unrealistic to consider going after Barack Obama and Harold Koh and Leon Panetta and Joe Biden, et al., and that is the reason (or a big part of it) for not pursuing criminal sanctions that follow upon criminality, well, one has to wonder when it will be politically realistic.  It seems hard not to think that for many who agree with the criminality view, that moment comes when there is no longer a Barack Obama at the helm, no longer beloved Harold Koh at DOS, and instead President Palin has concluded on the basis of the acts and written opinions of the previous administration that Al Qaeda has shifted, under relentless pressure by the Biden Brigades of UAVS and JSOC and CIA teams on the ground, to new grounds in lightly governed territory or an openly hostile state. Candidate Obama said in March 2008 that he would follow AQ to Yemen or Somalia or anywhere else they sought haven; he repeated it many times in office, and as we all found out, boy-oh-boy did he ever mean it.

But now that President Palin and Vice-President Jindal are at the helm, all of a sudden many people find the situation somehow … different. It all seems so … criminal. The alleged criminals all seem so … prosecutable or indictable, somewhere, somehow. Despite angry assertions that the policies are identical, a wave of law scholars produce an endless number of scholarly tomes and declarations, promptly submitted by the ACLU and CCR to courts everywhere they can find as earnest amicus briefs, that it really is different. It is very hard for me to see, as a pure political matter in the demimonde of the activist-scholar, international law advocacy community, that “politically realistic” is not simply another way of saying, “Republican administration.”

I am not attributing this to Ben, or to Mary Ellen. I have expressed the concern many times over the last year, in Congressional testimony, in my long Weekly Standard piece, Predators over Pakistan. I note that Harold Koh’s ASIL speech was admirable, in my view, not least because it moved to foreclose an important part of this. How? Because it acknowledged the long-held US position on self-defense as an independent ground for the use of force. Koh perhaps did not need to do that in this speech if the sole purpose was to provide a plausible ground for targeting people with drones in Yemen or Somalia. The speech could plausibly have rested on the narrower grounds of a non-international armed conflict in which the participants had fled to a new place and the ensuing hostilities followed their persons.

This is, after all, the administration’s preferred view of the situation of AQAP and Al Aulaqi, if I read its statements correctly. It believes that it has available to it, plausibly and in good faith, two alternative legal rationales for targeting them and targeting them there. They are, first, non-international armed conflict has followed the participants to Yemen or that AQAP is sufficiently co-belligerent with AQ proper; or else, second, that it is an independent exercise of self-defense under international law. I agree that each is available, plausibly and in good faith; I have strenuously argued the case for self-defense as the correct, but not exclusive, rationale in the past. But as more information has become publicly available on the factual nature of AQAP and its relationship to AQ, I believe that the armed conflict rationale has grown stronger as a factual characterization, and I think that true of Somalia as well.

The Obama administration has reasons given its preferred domestic law lens of the AUMF for relying on the first. There is nothing wicked or bad faith about that; the international law views are plausible and offered in good faith, and if it sees one as meshing better with its domestic law views, that is fine, too. But notice how different this approach to “international law” – regardless of whether one agrees with the specific legal judgments being made, the general approach is the traditional one of the State Department over the long run: the proper basis for showing that there is law and its interpretation is mingled without apology or consternation or sense of bad faith with diplomacy, politics, the facts of how states of varying weight and power and influence in the world see things, and a general sense of pragmatism that informs, or anyway ought to inform, the nature of international law itself.

It means, among other things, however, that the appropriate language for discussing the “law” is “plausibility” of alternative interpretations, rather than anything quite so stark as the categoricals and categorical imperatives that some, wishing they lived in a federal world with a supreme counstitutional authority to interpret these matters, might prefer. The view of international law held by the United States government over the long run is respectful of international law – but an international law that has built into it – built into the conception of what the law is and what qualifies as its interpretation – pragmatic views of alternative plausibilities that take account of the real world. So far as I can tell, the State Department thinks that the assertion of that pragmatic nature, far from being an embarrassing real world act of necessary bad faith, actually saves international law from itself, because of its tendency otherwise to drive itself over a cliff of idealism in which it achieves theoretical perfection while depriving itself of meaningful connection to how the leading sovereignties actually behave. International law (I’m swiping this phrase from someone, not sure who) has as its preferred political tense the future perfect.

Harold Koh did not strictly speaking need, strictly speaking, to reach to the international law of self-defense, in other words, in order to address a narrow question of US legal policy. He could have stuck with armed conflict and plausibly so. But he did so, presumably because he, and others in the Obama administration, understood that they have a fiduciary obligation to future administrations and future US presidents, to protect and preserve their powers lawfully to act, and that this includes self-defense as Legal Adviser Koh referenced it. He drew on the past jurisprudence of the Department of State, noting that it, too, is a source of law and its lawful interpretation, and looked to its future, in pragmatic ways broader than the narrow question that faced him. Self defense, too, is a plausible framework of law in this situation, particularly in consideration of the practices of states when it comes to self-defense outside of armed conflict strictly defined, and long and wide state practice regarding safe havens for non-state actors. In some future situations it will be the preferred and perhaps only available legal view.

But these arguments over plausibility and interpretation do not lend themselves to invocations of criminality and crimes, whether their prosecution is politically realistic or not. That kind of language raises the stakes in ways that are really beyond the proper bounds of this discussion. That is what I took to be Ben’s larger point. To that, I add that this will be tested when next there is a Republican administration, and suddenly what was politically infeasible looks (at least for purposes of strategically de-legitimizing otherwise accepted lawful actions of the President) feasible once again. When Harold Koh is replaced by a John Bellinger of the future; when the actors lack the long and deeply protective connections that proper membership in the academy brings; and when there is a general sense among progressive elites that the NASCAR yahoos are (back) in power and that this is the moment for de-legitimating what could not be de-legitimated when it was one of our own – well, what looks infeasible now will then look, I think, remarkably feasible.

Which is a leading reason, in my view, why a perhaps newly Republican Congress ought to set about getting directly on the table the detailed reasons why leading legal minds of the current administration think that their policies are lawful. And passing laws specifically to say that they are lawful, in Congress’s view, as a kind of memo from the political branches to US courts in considering future cases that will arise. Before officials leave government (Note: abjuration to incoming Congress – ed.). The national security apparatus that Vice-President Biden would like to leave behind after eight years in office is one, after all, that is wedded, fused, bonded, and genetically interwoven with targeted killing through remote drones and special ops teams and intelligence-driven uses of force. It is being tested in AfPak, for better or worse, in what a professor of mine in a class on strategy at UCLA once remarked as being the most difficult matter to execute: strategic (or tactical, for that matter) withdrawal under fire. I frankly never took Joe Biden seriously before, and I probably still don’t buy important parts of it strategically, I suspect; still, the account in Bob Woodward’s book has forced me to do a serious re-think of the Vice-President, surprising as I find it to utter these words. The strategic track is being laid down now – but even if it is only a narrow part of US national security strategy, it will be a crucial tool.

It would be a good thing if the administration not only laid this down as a strategic direction in technology, doctrine, operations, etc., but followed up on Legal Adviser Koh’s admirably far-sighted, indeed generous decision to protect the legal bases of this country’s future national security apparatus, and left behind a clear record of the legal views is has adopted in its policies. Not the ACLU’s fishing expedition for a guide-to-targeting (where 99% or so of the value, in my view, would accrue to AQ’s intelligence services were the ACLU’s FOIA to be answered seriously, question by question), but a clear set of legal statements linking policy with the administration’s view of the law; neither the ACLU nor Special Rapporteur Alston is wrong to seek such a general statement in the abstract.

Footnote to Jessup moot court teams doing this year’s problem on targeted killings and drones: Bear in mind that the nature of Jessup competitions tends in some situations to over-emphasize written legal documents of formal interest, such as ICJ opinions, and under-emphasize actual state practice of states, because state practice requires careful, but also always contestable, historical inquiry. It is one reason I am unenamored of politically exciting Jessup problems on national security topics which, in the real world, cannot avoid historical state practice as a source of law but are difficult to integrate into legal processes that systematically favor formal documents. Jessup works well in legal problems that are by their nature driven by documentary evidence; less so in such things as targeted killing.

It is always worth keeping in mind Sir Adam Roberts famous abjuration to international lawyers – though, if followed, it will inevitably lead one in these politically controversial matters to be less categorical about one’s conclusions than lawyers typically like:

There is little tradition of disciplined and reasoned assessment of how the laws of war have operated in practice. Lawyers, academics, and diplomats have often been better at interpreting the precise legal meaning of existing accords, or at devising new law, than they have ben at assessing the performance of existing accords or at generalizing about the circumstances in which they can or cannot work. In short, the study of law needs to be integrated with the study of history: if not, it is inadequate. (Sir Adam Roberts, “Land Warfare: From Hague to Nuremberg,” in The Laws of War: Constraints on Warfare in the Western World (1994), at 117.)

I had a long post on the Ninth Circuit panel decision here: al-Kidd v. Ashcroft: Is Pretextual Use of the Material Witness Statute Unconstitutional?. As I noted then, the qualified immunity analysis in the Ninth Circuit was pretty clearly wrong:

This case raises a novel question of law. I am a Fourth Amendment specialist who teaches and writes in this area and has spent a lot of time pondering how the Fourth Amendment applies in the war on terror specifically, and I myself am not sure whether pretextual use of the material witness warrant statute violates the Fourth Amendment. It’s a really hard question, and there is no caselaw on it all. Given that, I would be hard pressed to understand how this legal question could have been “clearly established” back in 2003, as the majority says.

Part of the problem is that the majority’s qualified immunity analysis is just unpersuasive: It looks to things like the general purpose of the Fourth Amendment, dicta in a footnote in a district court opinion, and the like, all of which is pretty hard to square with how the Supreme Court applied qualified immunity in the most obviously relevant case, Mitchell v. Forsyth, 472 U.S. 511 (1985), which like this case was a civil suit filed against the Attorney General alleging a Fourth Amendment violation in the national security context.

I also noted:

Fortunately, this case is perfect for Supreme Court review: If the en banc Ninth Circuit passes on it, this case will give the Supreme Court an ideal opportunity to evaluate the very important question of how the Fourth Amendment applies to preventive detention.

Depending on how the case is briefed and how broadly the Justices want to decide it, it looks like they may take advantage of the opportunity. Either way, I would think that a reversal of the Ninth Circuit is highly likely on the qualified immunity issue.

Incidentally, I have a short article on how the Supreme Court has approached Fourth Amendment standards in the national security context here: The Modest Role of the Warrant Clause in National Security Investigations, 88 Texas L. Rev. 1669 (2010).

The single biggest change in terrorism over the past several years has been the wave of Americans joining the fight — not just as foot soldiers but as key members of Islamist groups and as operatives inside terrorist organizations, including al-Qaida.

These recruits, a number of whom are profiled in this “Terror Made In America” series, are now helping enemies target the United States….

[L]e législateur a estimé que de telles pratiques peuvent constituer un danger pour la sécurité publique et méconnaissent les exigences minimales de la vie en société ; qu’il a également estimé que les femmes dissimulant leur visage, volontairement ou non, se trouvent placées dans une situation d’exclusion et d’infériorité manifestement incompatible avec les principes constitutionnels de liberté et d’égalité.

Roughly translated, this means that veils can be banned because the legislature has determined that they pose a “danger to public safety” and because wearing a veil, even “voluntarily,” puts women in a “condition of exclusion and inferiority manifestly incompatible with the constitutional principles of liberty and equality.”

Later in the opinion, the court concludes that, given the public interests served by the law, the punishment imposed on violators is not “manifestly disproportionate” and therefore it doesn’t violate the religious freedom guarantees in the 1789 Declaration of the Rights of Man.

I am no expert on French constitutional law, so I have little to say about the legal correctness of the ruling. I should also note that the institution of judicial review is much weaker in France than in the US or in some European nations such as Germany. Thus, the court’s highly deferential posture and cursory dismissal of the religious freedom issues involved may well be a correct ruling under French law.

I will say, however, that if the decision is not mistaken, it is a serious indictment of the French constitution that its protection of religious and personal freedom is so weak. The justifications offered by the court for a massive infringement on the religious practices of hundreds of thousands of French Muslims [update: probably "only" thousands, depending on how many actually wear veils and what kinds of headgear are actually covered by the ban] are at best extremely dubious. For example, it is simply not true that women who voluntarily wear veils necessarily end up in a “condition of exclusion and inferiority manifestly incompatible with the constitutional principles of liberty and equality.” Right here where I live in northern Virginia, there is a substantial Muslim population and many (though by no means all) all of the Muslim women wear veils. That doesn’t prevent them from having jobs outside the home, getting an education, and participating in politics and government in much the same way as unveiled women do. Some other religious groups, such as Orthodox Jews, also impose fairly strict requirements of modest dress on women. They too are not thereby blocked from full participation in society.

European Muslims are, on average, less well integrated into the economies and societies of their countries than American ones are. Nonetheless, it is difficult to believe that European Muslim women’s full participation in society is somehow precluded by wearing veils. The French Constitutional Council offers no evidence whatsoever to the contrary.

I can understand the idea that covering one’s face poses a danger to public safety in some instances (e.g. – where security personnel need to carefully screen anyone who enters a particularly sensitive area). But a blanket ban on all wearing of veils in public seems manifestly disproportionate to any such legitimate security concerns. Here, too, the Council doesn’t give any evidence or analysis to justify the conclusion that a blanket ban on public veiling really is necessary.

Finally, while I agree that radical Islamism is a serious danger, banning veils is a poor way to combat it. Forbidding the wearing of veils in public won’t persuade any Muslims to reject radical Islamist ideas. What you wear on top of your head doesn’t determine what you believe inside it. The ban might, on the other hand, increase the attraction of radical Islamism to at least some wavering Muslims who are likely to be embittered as a result. It will also strengthen the perception that Western society is somehow biased against Muslims. Our goal should be to try win over Muslims (and others) to the ideals of liberty, tolerance, and religious freedom. Heavy-handed restrictions on what people can wear do much more to undermine that objective than advance it.

It is not my view that the veil ban is wrong merely because Muslims might be offended. However, a free society should not impose a severe restriction on religious and personal freedom unless there is a very strong justification for doing so. The arguments offered by the French government and Constitutional Council don’t even come close.

NOTE: My French is fairly fluent, but still very imperfect. So I welcome correction by any fluent French speaker who notices that I have mistranslated something, or possibly missed an important part of the opinion. I also welcome input from readers expert in French law.

UPDATE: Various commentators point out that the ban covers only headgear that covers the entire face. I agree and did not mean to suggest otherwise. The term “veil,” in English at least, implies something that covers the entire face, or at least most of it (as opposed to, say, a headscarf, which only covers the top of one’s head). Nonetheless, many Muslim women do in fact wear veils that cover their entire faces, and the law is still a severe infringement on their religious freedom, even if a less sweeping one than a hypothetical ban that also covered headscarves.

UPDATE #2: The text of the law forbids the public wearing of “une tenue destinée à dissimuler son visage.” I tentatively translate this as “clothing designed to conceal one’s face.” It’s not clear to me that this necessarily requires concealment of the entire face, as opposed to merely a large part of it.

UPDATE #3: A commenter notes that I didn’t translate this part: “et méconnaissent les exigences minimales de la vie en société” ([wearing the veil] “is not in line with the basic requirements of living in this society”). Fair enough. But this argument adds very little to the justification for the veil ban. A woman who wears a veil certainly can meet the basic requirements of living in France or any other Western society, including having a job, participating in politics and civil society, and so on. This argument only helps justify the law if keeping one’s face uncovered is itself circularly defined as one of the requirements of “living in this society.”