The Volokh Conspiracy

Benjamin Wittes (Lawfare) reviews the Washington Post and New York Times editorials about Rep. Buck McKeon’s proposed rewriting of the 2001 Authorization for Use of Military Force against al Qaeda and the Taliban.

The debate over the morality and legality of targeted killing has been rekindled by the death of Osama Bin Laden and shows no sign of stopping. But most of the debaters have overlooked a key point. If it is moral and legal to individually target uniformed enemy military officers, surely the same goes for leaders of terrorist organizations. It cannot be the case that law and morality give the latter greater protection than the former. I made this point in a recent statement that got quoted by Al Jazeera (not a media outlet that I would ever have expected to be cited by, but they asked me to comment, so I did):

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.

Reuters reports that Senator Charles Schumer (D-NY) believes the federal government needs to create a “no-ride” list for Amtrak to prevent potential terrorist attacks on trains.

There is not much I can say about the death of Bin Laden that will not be better said by others with greater eloquence or expertise, including the President in his speech last night, which I thought hit all the right notes. Obviously, it is a great day for the US and all who are threatened by radical Islamist terror. We should also commend the president, the special forces who carried out the mission, and the intelligence community. Hopefully, this success is a sign of improvement in US intelligence capabilities over the last decade.

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).

The Ft. Hood shooting has finally been the subject of a careful after-action analysis — a study that DOD should have done but didn’t.  The analysis was done instead in a bipartisan report by Senators Lieberman and Collins, who lead the Homeland Security committee.  Their report reveals few new facts but offers disturbing insights into DOD’s cultural dysfunctions.

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.

Jack Goldsmith argues that it would be a mistake for the United States to try and prosecute Wikileaks’ Julian Assange.

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.

Ben Wittes (of Lawfare blog, the Brookings Institution, and member of the Hoover Task Force on National Security and Law) has a new book out of Brookings Institution Press, Detention and Denial: The Case for Candor after Guantanamo. It has been out since late December, but I just got a chance to finish reading it. I’m a huge fan, which will surprise no one familiar with my thinking about Ben’s work as well as about Guantanamo policy.

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. Continue reading ‘Ben Wittes’ “Detention and Denial”’ »

Back in August, I wrote a post criticizing efforts to use government power to stop the building of the Ground Zero Mosque and explaining why I see no good objection to having a Muslim cultural center or mosque near Ground Zero. But I was also highly critical of Imam Feisal Abdul Rauf, leader of the mosque project. My main objections to his record were his tendency to draw a moral equivalency between the US and Al Qaeda, his claim that the US government was an “accessory” to the 9/11 attacks, his praise of Iran’s repressive government, and his refusal to admit that Hamas is a terrorist group. In this recent National Review piece, conservative columnist Henry Payne claims that Rauf’s record has been misrepresented:

[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.”

Presswires are reporting that Judge John Bates has dismissed the case which the ACLU and the Center for Constitutional Rights sought to bring on behalf of Anwar Al-Aulaqi’s father, contesting the ability of the President to target an American citizen hiding abroad in Yemen who the government says is a targetable participant in a terrorist group covered by the AUMF.  (Thanks commenter Dom, the opinion is here; thanks also Instapundit, & corrected grammar above.)  The news story points to standing problems for the father.  Says the AP:

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.

Orin’s colleague Jeffrey Rosen argues in today’s Washington Post there is a “strong argument” that the Transportation Security Administration’s use of full-body-image scanning devices and more thorough pat-downs are unreasonable searches and seizures prohibited by the Fourth Amendment.

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.

Glenn Greenwald rightly takes The Nation to task for publishing a a shoddy, fact-free, and reckless hit piece by Mark Ames and Yasha Levine attacking John Tyner and other critics of the Transportation Security Administration’s new airport security protocols as nothing more than fringe libertarian, Koch-funded astroturf. Tyner is the fellow who became an internet sensation for warning a TSA screener not to touch his “junk” during a pat down.  Writes Greenwald:

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.

You can find links to five essays on that topic here. My own response as part of the NYT blog debate is here.

The Washington Post reports that the Obama Administration has concluded it may have to detain Khalid Sheik Mohammed indefinitely, and that it has the power to do so under the laws of war.  Administration officials do not want to try him before a military tribunal and there is substantial political opposition to trying KSM in New York, as had been proposed, so indefinite detention it is.

The AP reports that the Rutgers-Newark Law School clinic has filed a cert petition seeking review of a case challenging the constitutionality of the Iraq War.  Filed on behalf of an Iraq war veteran, two mothers of deployed soldiers and an anti-war group, the suit maintains that the invasion of Iraq was not constitutionally authorized due to the lack of a formal Declaration of War by Congress. According to a Rutgers press release:

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)

Interest in targeted killing and drone warfare is not letting up in intensity – at least to judge by the pace of events on the topic. Right on top of my debate with Notre Dame’s Mary Ellen O’Connell on this at Washington University two weeks ago, Professor O’Connell and the Brookings Institution’s (and Hoover Institution’s) Benjamin Wittes undertook another one, this past Saturday at International Law Weekend in New York. It was considerably more testy than the Washington University debate. Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate. I’m sure it will generate a lot of interest and a lot of pushback in several directions. Ben (I’m going to use first names in this post for both of them and hope they don’t mind) has posted up video of the event at Lawfare.

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.   Continue reading ‘Targeted Killing and Drone Warfare Debate between Mary Ellen O’Connell and Benjamin Wittes’ »

Today the Supreme Court granted cert in Ashcroft v. Al Kidd, the case holding then-Attorney General John Ashcroft personally liable for his role in the detention of terrorist suspects under the material witness statute.

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 Jawa Report reports. NPR likewise mentions the traitor (Samir Khan), though in passing, in a story that begins this way:

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….

France’s Constitutional Council recently upheld the constitutionality of a law banning the wearing of veils in public places. The text of the decision is available in French here. Despite the importance of the issue and the large potential infringement on religious freedom, the opinion is very short and conclusory. For those of our readers who understand French, here is the key passage:

[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.”

(Update:  Sorry about leaving off a title!  perils of posting from an Ipod!)

Today at noon, the Whitney R. Harris World Law Institute at Washington University Law School is holding a debate on targeted killing using drone aircraft.  It features Notre Dame’s Mary Ellen O’Connell and yours truly, and moderated by Minnesota Public Radio’s Matt Sepic.  Mary Ellen and I each hold strong views on this topic, of course, and I am greatly looking forward to the discussion.   The event will be webcast, live, I believe, and then available archived at the website if anyone is interested.  My thanks to the folks at the Harris Institute, and Leila Sadat particularly, who invited us, and congratulations to the Institute on its 10th anniversary.  The Harris Institute could not have picked a more timely discussion for its anniversary debate, as a quick glance at the newspapers reveals.  The link to the Harris Institute event notice is here.

I’ve just finished the new Woodward book, Obama’s Wars, and it is intensely interesting on the topic of drones and targeted killing.  If anyone thinks that the President, the Vice-President, and the senior national security team are not convinced that it is effective and the most discriminating form of use of force available, they should read this book carefully.  Ramping it up is fundamental to the Obama administration’s war strategy, as I‘ve repeatedly said for the last couple of years, in part because it is embedded in counterinsurgency to take out the safe havens, and because it is the the thin tip of the spear in counterterrorism.

That, according to the first rate reporting from Adam Entous, Julian Barnes, Siobhan Gorman, and others at the Wall Street Journal’s first rate national security reporting team, is what is driving the ramping up now: look back at Woodward’s book on the strategy discussions from a year ago, and what the Journal reporters are noting on the front pages, and both sides of the ramp-up become clear.  Counterinsurgency in Afghanistan requires taking out the safe havens; counterterrorism against the terrorist groups in Pakistan is a function of drones.  More drone strikes either way, quite apart from their strengths in costs, precision, discrimination, etc.

One of the important takeaways from the Woodward book, however, is that the counterterrorism strategy depends far more than I had realized upon the CIA’s network of human intelligence on the ground, and not merely on Pakistan intelligence sources.  The drone targets are a function of every other conceivable intelligence resource from humans on the ground to signal intelligence.  Another is the repeated theme that Al Qaeda is much more involved with the “franchise” and “affiliated” terrorist groups seeking to expand ops beyond Mumbai and south Asia into Europe than I had believed – I had come round to seeing them as inspired by but not really coordinated through or with, but the Woodward book puts Al Qaeda as very much in the game.

Seen from the strategy decisions made a year ago, the moment has arrived in which the administration is brushing aside objections to leaning on Pakistan – blowback, nuclear arsenal, etc. – and deciding it is put up or shut up time.  This all has important implications for the overt, non-covert war – it is AfPak as a strategic matter, and quite possibly – for important strategic players – much, much more Pakistan than Afghanistan.  But the conflict is an AfPak one as far as important US strategic considerations run, and that means overt, direct Nato attacks across the border on safe havens, drone attacks, and no pretense that it is a deniable CIA operation.  We haven’t reached quite that point yet, but we might get there sooner rather than later.  The alternative is a ramping down of Afghanistan counterinsurgency, and a ramp up of CIA deniable operations in Pakistan, as counterterrorism.  This is the Biden preferred option, in the context of the various strategic reviews conducted by the administration, on the view that defeating the Afghan Taliban in any meaningful way is not possible, and so Al Qaeda and affiliated groups sheltered in Pakistan are the issue.  Which is to say, Pakistan is the real source of the poison.

That strategic debate can go many ways, but the one lesson out of it is that drones and targeted killing will get only more important, not less.

Adam Entous, Julan E. Barnes, and Siobhan Gorman have an outstanding piece of national security reporting on the front page of the weekend Wall Street Journal, “CIA Escalates Campaign in Pakistan: Pentagon Diverts Drones to Afghanistan to Bolster Campaign Next Door.” This is a fine piece of journalism that integrates reporting from AfPak and Washington to present findings that are new to the public, and more than merely a deliberate leak to a leading reporter from a government official or a magazine story rather than hard news.  My congrats to what is emerging as a leading national security affairs reporting team at the news pages of the Journal.  (Here is Greg Miller’s account in the Washington Post, Sunday, front page.)

September 2010 saw another sharp uptick in the number of drone attack missions in Pakistan.  The question behind the raw numbers is what strategic purpose they aim at.  One strategic mission of drone missions in Pakistan is counterterrorism aimed at Al Qaeda leadership.  This uptick in September 2010 points to a quite distinct function – rather than counterterrorism as its own mission, the purpose is, as article says in a telling quote, “force protection” for the US counterinsurgency troops in Afghanistan.  The articles details an increasing impatience of the US military and political leadership with Pakistan’s government, and an increased willingness both to strike overtly using NATO military assets quite openly across the border, as happened in the last week, as well as to use CIA Predator attacks in the border regions.

Moreover, the “force protection” use of drones described in these articles is distinct from still another strategic use of drones, one recounted in earlier articles in the last two weeks, talking about their use to disrupt the planning of attacks against European targets by groups such as the Haqqanis, regional groups thought to be seeking to use people with European or American passports to strike from Pakistan against Western targets; Mumbai shifted further west, so to speak.  As Woodward quotes someone in his new book, “Mumbai changed everything.”  It is because of these overlapping but also separate and shifting roles for drones that it seems to me worthwhile to analytically distinguish them, as I do below.

Thus, the CIA attacks are now on safe havens for Taliban who are part of the fight in Afghanistan but taking refuge in Pakistan.  Rather than simply a raiding strategy against terrorist leadership in Pakistan as an exercise in counterterrorism, the drones are now used a raiding strategy against the safe havens as part of the Afghanistan counterinsurgency surge.  Hence the desire of the Pentagon to divert drone aircraft – which are in demand in Afghanistan for a variety of missions – from Afghanistan to attacks in Pakistan on bases that are seen as links for attacks on US forces.

This is an important shift, or addition, to the role of drones in Pakistan.  (Of course this has always been part of the use of drones; I’ve hardened the analytic categories to make them clearer, but really it is a question not of something new, but of scaling it up.)  The article makes note of something else, too – that drone aircraft are not being produced fast enough to meet demand for them in AfPak.  The article has excellent graphics, including a chart on numbers of attacks on a month by month basis, and maps.

As it happens, this article is timely for me, as I am completing this weekend the draft of an essay for the Hoover Institution on a roster of strategic uses of drones.  In bullet point form, here is an analytic breakdown of categories, as I see them, of drone use.  (I’m not providing more than the bullet title, even though the result is overly-cryptic; the full essay will be available once finished and edited at Hoover’s website or SSRN.  Also, if anyone is interested in my earlier published writing on drone warfare and the law, at SSRN’s free downloads, see this book chapter, this lengthy piece in the Weekly Standard, and two pieces of Congressional testimony, here and here.)

• Surveillance (sometimes policy and legal people forget this in all the controversy over weaponized drones and targeted killing).
• Drones used by the military or CIA in Afghanistan as part of combat operations and counterinsurgency.
• CIA drones in Pakistan used in counterterrorism against high value terrorist leadership (ie, against senior leadership such as Mullah Omar or Bin Laden or others in AQ).
• CIA drones in Pakistan used in counterterrorism against high and lower level operatives, including the current strikes against locations and camps of terrorist groups apparently planning new strikes in Europe or the US (as some of the CIA drone strikes undertaken now are apparently intended to do, such as those against the Haqqanis).
• CIA drones used in Pakistan in support of Afghanistan counterinsurgency operations against safe havens for Afghanistan Taliban.
• CIA (or even military) drones used in Pakistan in support of Pakistan government counterinsurgency operations against the Pakistan Taliban, separate from the fight in Afghanistan.
• CIA drones used in counterterrorism against AUMF targets (ie Al Qaeda or associated forces, in the context of participants in the current non-international armed conflict (NIAC), as legally defined), whether in Yemen, Somalia, or conceivably elsewhere.
• CIA drones used either as part of the AUMF-NIAC or else as (legally independent) self-defense operations, against US citizens who have taken up terrorist participation and made themselves subject to targeting (operationally not really different, but legally potentially raising different law and policy questions because of the US citizen status).
• CIA drones used somewhere down the road against terrorists unrelated to anything going today, whether in an ongoing armed conflict or as an operation in self-defense.

The list proceeds more or less according to an expanding political geography starting with Afghanistan; it deliberately leaves aside Iraq for these purposes.  The main internal analytic axes are political geography; who uses the weapon and on whose behalf; and who is targeted by the weapon.

The long-term question of drones is whether they are going to remain a remarkably useful weapon in support of a large variety of missions in different ways, or whether instead the US decides to try and leverage them into something much more strategically radical – the new strategic air power.  In other words, the latest iteration of a very old dream, the ability to win wars from the air.  But this time with a twist.

Strategic air power in the past both promised to win because it could deliver apparently huge amounts of kinetic energy, but then tended to lose (or at least not be decisive)  because the huge amounts could not be targeted in order to achieve the required strategic aims.  (For a discussion of recent, Kosovo war-era debates over the ability to win wars from the air, look at this excellent article from Byman and Waxman.  Moreover, Israel went down the air power road in Lebanon, hoping to avoid serious ground engagement, and quickly ran into major problems.)

Drone attacks and targeted killing, in the full realized sense with a range of vehicles from very large to tiny, with weapons ranging from large to small, and with improved sensors arrays and processing integration, hold out the hope of being able finally to deliver the blows precisely where one wants.  We think of the virtue of targeted killing as being discrimination for its own sake, limiting the damage of war.  In pursuit of strategic air power victory, however, we might do better to think of discrimination in targeting for the sake of (finally) being able to put power precisely where we want it.

It might work out that way; it might not.  Drones have not yet been met in the field with counters – surface to air missiles, for example, of the kind that dealt a crippling blow to Soviet air superiority in Afghanistan.  Or technological counters to the remote-control communications systems that allow drones to be directed from near or far away. What concerns me from a strategic standpoint is that the US might decide that drones are cheap, reduce risks to but also need for manpower, and that it finally has the ability to achieve its aims (as Vice President Biden has implied in his early-on stance in favor of drone counterterrorism rather than counterinsurgency war in AfPak), not through the burden and cost of boots on the ground, but over the horizon using this new iteration of the dream of strategic air power.

It seems unlikely to me that this will work.  I understand the attraction.  And I also understand that it does represent an advance on an earlier version of strategic air power – the post WWII idea that strategic nuclear air delivered weapons meant we no longer needed a large standing army, because of the nuclear deterrent in an over the horizon way.  That version of strategic air power could not work to the end of reducing the need for a conventional army, because the threat of nuclear war was too monumental to be useful at the margins.  You could never actually pull the nuclear trigger over something important but not so important to go to nuclear war over.  So it turned out that you either ceded ground incrementally at the margin, or else you went back to having a conventional army that could respond at the margins.

Drones potentially make that less of a problem, precisely because they allow calibrated responses in a discriminating way.  But it seems doubtful to me that a technology will not rapidly develop technological responses, and that in any case, it is a huge advance, but not a truly decisive one; it seems to me likely to remain a useful tool if regarded that way, not a panacea for having a sizable military.  In any case, history is littered with instances of believing that at last we had found the successful path to strategic air power victory.

Update: Woodward’s book, which I’m reading now, discusses many issues relevant here.  Four stand out for this topic.

• First, he notes that the number of drone strikes under Bush was tiny, in large part on account of an enormous fear of the consequences of civilian casualties, even in numbers that the administration believed were entirely justifiable – fears, in other words, of accusations of atrocities, war crimes, etc., from the fear of a de-legitimizing activist campaign.  The Obama administration, believing correctly that it was immune to such campaigns, did not have to worry about such repercussions.
• Second, the earliest drone strikes in Pakistan under Bush had only limited effectiveness, because the US, out of concerns for Pakistani sovereignty, advised the government of impending strikes; elements of Pakistan’s intelligence service warned Al Qaeda, and they dispersed from the target zone prior to the strike.
• Third, he notes that Michael Hayden, while embracing the use of drones as counterterrorism against high value targets, did not believe that it could “win” the struggle against Al Qaeda or the jihadist extremists, because the pinpricks were not enough to root out the movement even if leaders were killed.  Hayden thought the drones essentially tactical rather than strategic.
• Fourth, he says that the reason the drone were, and are, effective is because of a strong effort over five years to create a ground level network of intelligence of critical value – developed it seems out of the CIA from human intelligence.  That, integrated with massive advances in signal and communication surveillance, has enabled drones equipped with still not much more than tactical video surveillance in the air to be directed to the crucial targets.  It is not the surveillance gathered by a weaponized drone that matters so much as the intelligence gathered in a combination of on the ground human intelligence and communications monitoring that allows an effective strike.

One of the biggest implications for drone strikes by the CIA in Pakistan and Afghanistan, as I read the Woodward book, then, is that the CIA (under Hayden and surely the same under Panetta) regards its human intelligence and a certain on the ground presence, as well as communications monitoring outside of the tactical use of the drones themselves, as crucial to their success.  The drones are effective – insofar as the ground is prepared by other kinds of intelligence activities and technologies.

The Washington Port reports the Justice Department “reluctantly” invoked the state secrets doctrine in seeking dismissal of a lawsuit challenging the alleged targeting of Anwar al-Aulaqi, a radical Islamic cleric (and U.S. citizen) believed to be in Yemen.

Justice Department spokesman Matthew Miller said that the groups are asking “a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action – all on behalf of a leader of a foreign terrorist organization.”

Miller added, “If al-Aulaqi wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions.” . . .

In its 60-page filing, the Justice Department cites state secrets as the last of four arguments, objecting first that Aulaqi’s father lacks standing, that courts cannot lawfully bind future presidents’ actions in as-yet undefined conflicts, and that in war the targeting of adversaries is inherently a “political question.”

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

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

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

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

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

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

Lawfare is not just the name of a great new national security law blog, it’s also the subject of a conference this Friday at the Case Western Reserve University School of Law.  Details, including information on viewing the webcast, here.

UPDATE: Thoughts on “lawfare” and “Lawfare!” by Jack Goldsmith at Lawfare.

Over at the Lawfare Blog, Jack Goldsmith offers an interesting take on the recent announcement that David Addington has joined the Heritage Foundation as its new Vice President of Domestic and Economic Policy Studies.

Due to the press of a deadline for something else, I am not able to comment as fully as this all deserves, but I wanted to flag this morning’s editorial in the Washington Post, essentially defending and, in some ways, extending the Obama administration’s position on targeted killing, whether using drones or human teams, including American citizens under certain circumstances.

[DOS Legal Adviser Harold] Koh correctly asserted that the 2001 Authorization for the Use of Military Force, international law and the country’s inherent right to defend itself put it on solid legal footing for such attacks, including those outside traditional battlefields … In his [March ASIL 2010] speech, Mr. Koh did not address whether U.S. citizens could be the targets of these strikes.

The American Civil Liberties Union took up Mr. [Anwar] Aulaqi’s cause last week, arguing that it would be unconstitutional for the government to carry out such a strike against an American, especially one located outside a recognized war zone.

U.S. citizens who take up arms against the country are enemy combatants and are indistinguishable on the battlefield from other belligerents. The political, legal and moral calculus of addressing the threat posed by an American enemy combatant such as Mr. Aulaqi changes when he is located outside a recognized war zone. The discussion should be — and we trust would be — dramatically different if he were residing in an allied country willing to use lawful means to capture and turn him over.

But when a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens.

I agree with the fundamentals of the editorial; so does Ben Wittes, commenting at the new – and I suspect soon to be indispensable – national security blog, Lawfare.  Not everyone does, to be sure; over at Opinio Juris, my co-blogger Kevin Jon Heller argues that, at least outside of a recognized war zone, an American is entitled to adversarial judicial process, and adds:

We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process. So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?

There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime. If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding.

It’s an interesting scenario – CCR Michael Ratner representing a gone-missing-in-Yemen Aulaqi, getting a chance to review the government’s secret evidence, being able to review the secret methods of secret evidence collection in a secret proceeding, not only the contents of which presumably need to be kept secret but the very fact of the proceeding as well?   I wonder what the internal reaction to this scenario would be inside Koh’s shop at the State Department, let alone at DOJ, DOD, NSC, DNI, or CIA.  But now a couple of final comments which go to issues that haven’t been so much discussed.

First, if one reads the ACLU-CCR filing as well as the Washington Post opinion piece by the two advocacy groups which has also been discussed at Lawfare and Opinio Juris, it is hard not to notice that the underlying argument is only secondarily about an American citizen being targeted – and primarily about the idea that an armed conflict in a legal sense is necessarily geographically bounded, limited to particular battlefields and acknowledged “theatres of conflict.”

On the citizenship point, one understands the problem – the progressive left of which these groups are a part tend to put no weight on citizenship much of the time, treating it as a morally accidental and therefore morally suspect category – except when it comes time when it can be invoked to offer protection.  (One might regard this as a theory of citizenship premised on the view that it promises only goodies, and is merely a mechanism for internalizing benefits and externalizing costs.  As with most situations of continuous moral hazard, such a conception can’t really last.)  At the end of the day, the advocacy groups see the citizenship issue merely as a strategic argument for protecting a group (Americans) that has no actual special moral claim.  And so, whatever the argument over targeted killing are at any given moment to advance the cause of prohibiting them, the advocacy work won’t be done until it also addresses the presumptive human rights of non-Americans equally.  Citizenship is merely strategic.

Second, going to the geographic definition of war as a legal concept.  This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law.  And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime).  I cannot say that these claims – although heroically urged by the advocacy groups and their academic allies – have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it.  Certainly the State Department, under Harold Koh, no less, does not even entertain it.  And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation.  (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)

Rather, the customary view of the US – and the traditional view of war-fighting states – has always been that the fight can lawfully go wherever the participants go.  It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself.  The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are.  The reason for this traditional rule is obvious – if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven.  Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.

The ACLU-CCR view acknowledges (at this point in its advocacy campaign, anyway) that a US citizen might be lawfully targeted – not to put too fine a point on it, and a note, per Orin’s earlier post, to judicial clerks – without the permission of Proconsul Kennedy, provided that he be on an “actual” battlefield as the ACLU legally defines it in its own way.  That being the ACLU’s view for the nonce, then the geographical distinction is crucial as a matter of law.  Within it, the US citizen can be treated as a combatant like any other; outside of it, then in the ACLU and CCR’s view, constitutional rights follow the citizen.

It is important to understand, then, that the ACLU and CCR’s advocacy position is not limited at all to US citizens – it is to impede targeted killing by requiring, among other things, the permission of a Federal judge at a minimum, including for non-US citizens.  Since it seems, as a matter of political advocacy at least today, a bit of a stretch even for the ACLU or CCR to try and argue that an American shooting at US soldiers in Afghanistan is owed a judicial hearing, the crucial premise is to separate out those “active” war zones as a matter of law from places where constitutional due process meted out by a federal judge obtains.

The citizenship issue is best understood, then, as a stalking horse for a larger advocacy strategy in which, in the case of US citizens, constitutional rights follow US citizens even beyond territorial borders – a questionable proposition, in my view, if that is supposed to mean “all” or even “all important” ones.  (There are many reasons why territory matters in the existence of constitutional rights – the actual exercise of actual police powers over the national territory, versus Yemen or Somalia, for one thing; it is partly, but not just a formal concept about sovereign territory.  The Post editorial dealt with that correctly, in my view.)  And in the case of non-citizens, outside of what the ACLU defines as the legal armed conflict zone, full human rights law applies on the ACLU-CCR, to render the targeted killing an extrajudicial execution; likewise, in my view, a questionable proposition.  But in the discussion of the current ACLU lawsuit, I think the fundamental premise, and the most dubious one as a matter of law – geographical limits on the legal state of armed conflict – has been somewhat passed over as people have argued instead about citizenship.

Third observation – why the assumption that in everything, including crucial issues of national security abroad, there is always a role for the Federal judiciary?  The Washington Post editorial emphasized, correctly, in my view that indeed a US citizen was deserving of greater scrutiny in deciding whether or not to target; I deliberately use “scrutiny” as a non-legal term rather than “due process.”  The Post was seemingly careful not to suggest that this scrutiny should be that of a judicial process or Federal judge.  Rather, the Post quite correctly, to my mind, emphasized that this consideration should be built into the intelligence oversight process – some kind of mechanism to ensure that the fact of citizenship has been acknowledged and a heightened evaluation made.

The WP says that the bi-partisan intelligence committees should be informed – a matter with which I could not agree more, on this as well as other matters involving Congressional oversight of the intelligence community.  But there is a special salience here.  Because in these targeted killings and other intelligence actions, officials tasked to carry out these missions need to have assurance that they will not be scapegoated afterwards.  They do not have it now.  A crucial political mechanism is to ensure that the intelligence committees have been fully and completely informed – so that there can be no later deniability as to what Congressional leaders were informed in secret.

I would write that as an amendment – perhaps; I could also be persuaded putting anything in writing is merely an invitation to judicial intervention – into USC 50.  This would be partly to make clear both that the process is vested in the political branches as a matter of national security, but that in the case of Americans abroad and possibility the subject of forcible actions by the actors in the “intelligence community,” the President shall, in the lawful exercise of his discretion, take into account that the person is American.  But it would also be to say explicitly that nothing in the exercise of that discretion confers any substantive rights on any individual and that the judiciary has no power to review such exercise of Presidential discretion.

As various people have pointed out, the current ACLU lawsuit is not likely to go anywhere.  From the advocacy point of view, that is not really the point.  It is instead to keep create as much legal uncertainty as possible by raising the possibility that at some point down the road, perhaps some Federal judge will decide to entertain these possibilities, and hold some CIA official liable for something done years before – does any, these days, think that we are in a period of settled institutional views on liability?  If anyone thinks that even a small amount of legal uncertainty for individual officers involved does not have consequences, they should think again.  Leveraged legal uncertainty affects behavior.

Moreover, the US government, under any administration, is perennially unable to see the larger advocacy campaign – this as well as other ones.  They are textbook examples, whether one agrees with the cause or not, of The Logic of Collective Action; they look to the ten year framework, and they understand something that seems to elude too many law and economics scholars, viz., the framing power of legitimacy.  Hence the current formulation of the ACLU lawsuit – execution without trial of an American citizen abroad by his government.  One might think that “execution without trial” tendentiously presumes the conclusion, but it has been faithfully picked up and repeated by numerous journalists and commenters as though it were the obvious starting point rather than a tendentious conclusion.

When I talk with government lawyers about this public advocacy issue, however, their response tends to be … but Harold Koh already addressed this in his speech!  It’s been settled, already!  But if you are engaged in an advocacy campaign for the long run, Koh merely gave momentarily the wrong answer, and the task is to endlessly reframe until everyone has forgotten what he said and what’s left is, “execution without trial.”

Finally, the long march of advocacy groups through the institutions puts a greater importance on that least-impressive branch of government, the US Congress.  It needs to get involved – to take up its responsibilities as one of the political branches to set the most basic terms of national security.

But for a sharply contrary view to all of this – a view that, when contrasted with this or with Harold Koh’s views, shows just how much these basic conceptions of national security are today ships passing in the night – read Kevin’s (several) posts at OJ as well as Ben’s comments at Lawfare to which Kevin is partly offering a reply.