Author Archive | Kenneth Anderson

Drone Warfare Debate at the Oxford Union

Congratulations to Co-Conspirator Ilya on his Senate testimony on drone warfare yesterday – I had a chance to read and offer some comments on his written submission and it is sensible and smart as Ilya always is.  There’s stuff Ilya, I, and other should take up here; although I’m broadly in the same camp as Ilya, I have some disagreements and particularly on whether there is a role for the judiciary in targeting decisions, on either the front or back end (I think not).  For now, however, I wanted to flag a couple of different things related to targeted killing and drone warfare.

First, Benjamin Wittes (Brookings senior fellow and editor in chief of Lawfare, the leading national security law blog) and I will be appearing on the pro side of a debate on drones tomorrow night, April 25,  at the Oxford Union.  Our third pro debater is London journalist David Aaronovitch.  For the opposers, count the formidable team of philosopher and NYU law professor Jeremy Waldron, Columbia Law School’s Naureen Shah, and Chris Cole of the UK campaigning organization DroneWars.  The Oxford Union puts up YouTube videos after the event; it should be great fun, though I am perhaps the least qualified professor to engage in Oxford Union-style debate.  The proposition for debate is, “Drone Warfare is ethical and effective.”  To which the answer has to be, yes, in some circumstances, no, in others, and it’s complicated.  Of course, I’m on the pro side because I think it a good and valuable tool of national security in many circumstances, not just rare and hypothetical ones.  Anyway, I have acquired a tuxedo for the occasion, and I will post a photo of my special cognition-enhancing braces, along with a link to video when available.

Second, check out the latest [...]

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SCOTUS Affirms Second Circuit Dismissal of ATS Suit in Kiobel v Royal Dutch Petroleum

The US Supreme Court released its long-awaited Kiobel decision this morning, affirming the Second Circuit’s dismissal of the plaintiffs’ Alien Tort Statute claims.  Chief Justice Roberts wrote the opinion, joined by Justices Scalia, Alito, Thomas, and Kennedy.  Justice Kennedy wrote a separate concurrence; Justice Alito did likewise, joined by Justice Thomas. Justice Breyer concurred in the judgment, joined by Justices Ginsburg, Sotomayor, and Kagan.  I’m posting this primarily in order to supply the link to the opinion asap, so I’ll refrain from commenting on it for now.  The SCOTUS opinion in Kiobel v. Royal Dutch Petroleum Co. can be found here. [...]

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The Debate About to Heat Up Over HRW’s Call to Ban “Killer Robots,” AKA Autonomous Weapon Systems

(And: thanks to Instapundit for linking to the new policy essay by Matthew Waxman and me from the Hoover Institution, referenced at the end of this post, Law and Ethics for Autonomous Weapon Systems – thanks Glenn!)

Last November, two documents appeared within a few days of each other, each addressing the emerging legal and policy issues of autonomous weapon systems – and taking strongly incompatible, indeed opposite, approaches.  One was from Human Rights Watch, whose report, Losing Our Humanity: The Case Against Killer Robots, made a sweeping, preemptive, provocative call for an international treaty ban on the use, production, and development of what it defined as “fully autonomous weapons” and dubbed “Killer Robots.”  Human Rights Watch has followed that up with a public campaign for signatures on a petition supporting a ban, as well as a number of publicity initiatives that (I think I can say pretty neutrally) seem as much drawn from sci-fi and pop culture as anything.  It plans to launch this global campaign at an event at the House of Commons in London later in April.

The other was the Department of Defense Directive, “Autonomy in Weapon Systems” (3000.09, November 21, 2012).  The Directive establishes DOD policy and “assigns responsibilities for the development and use of autonomous and semi-autonomous functions in weapon systems … [and] establishes guidelines designed to minimize the probability and consequences of failures in autonomous and semi-autonomous weapon systems.”

By contrast to the sweeping, preemptive treaty ban approach embraced by HRW, the DOD Directive calls for a review and regulatory process – in part an administrative expansion of the existing legal weapons review process within DOD, but reaching back to the very beginning of the research and development process.  In part it aims to ensure that whatever level of autonomy a weapon [...]

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How To Declare War (Anno Domini, 1429)

Jhesus-Maria, King of England, and you, Duke of Bedford, who call yourself regent of the Kingdom of France, you, Guillaume de la Poule, count of Suffort, Jean, sire of Talbot, and you, Thomas, sire of Scales, who call yourselves lieutenants of the Duke of Bedford, acknowledge the summons of the King of Heaven.  Render to the Maid here sent by God the King of Heaven, the keys of all the good towns which you have taken and violated in France.  She is here come by God’s will to reclaim the blood royal.  She is very ready to make peace, if you will acknowledge her to be right, provided that France you render, and pay for having held it.  And you, archers, companions of war, men-at-arms and others who are before the town of Orleans, go away into your own country, by God.  And if so be not done, expect news of the Maid who will come to see you shortly, to your very great injury.  King of England, if you do not so, I am chief-in-war and in whatever place I attain your people in France, I will make them quit it willy-nilly.  And if they will not obey, I will have them all slain; I am here sent by God, the King of Heaven, body for body, to drive you out of all France … (Written this Tuesday of Holy Week, March 22, 1429.)

Joan of Arc, the Maid of Orleans, sends a formal letter of summons to the English upon the siege of Orleans.  (I post this once a year on this date at all the places I blog.)

Update: Co-Conspirator Ilya points us to a much, much shorter way to declare war, courtesy of the 10th century Prince of Kiev. [...]

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Gas Laws, Flocking Behavior, and the Mosh Pit

This article has been making the rounds of social media (H/T Insta), but (while not pretending to fully understand the math) I found it cute and so bring it to your attention:  “Collective Motion of Moshers at Heavy Metal Concerts.”

Human collective behavior can vary from calm to panicked depending on social context … we study the highly energized collective motion of attendees at heavy metal concerts. We find these extreme social gatherings generate similarly extreme behaviors: a disordered gas-like state called a mosh pit and an ordered vortex-like state called a circle pit. Both phenomena are reproduced in flocking simulations demonstrating that human collective behavior is consistent with the predictions of simplified models.

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US Surveillance Drones Aid French Airstrikes in Mali

The Wall Street Journal national security reporting team has a new article in today’s Journal on how US surveillance drones are providing intelligence and targeting information to French forces in Mali, which then use the information to direct French (manned) airstrikes.  The drone surveillance marks, according to the article, a widened role for the US in support of French military operations in Mali:

U.S. Reaper drones have provided intelligence and targeting information that have led to nearly 60 French airstrikes in the past week alone in a range of mountains the size of Britain, where Western intelligence agencies believe militant leaders are hiding, say French officials.

The operations target top militants, including Mokhtar Belmokhtar, the mastermind of January’s hostage raid on an Algerian natural gas plant that claimed the lives of at least 38 employees, including three Americans. Chad forces said they killed him on Saturday, a day after saying they had killed Abdelhamid Abou Zeid, the commander of al Qaeda in the Islamic Maghreb’s Mali wing.

French, U.S. and Malian officials have not confirmed the deaths of Mr. Belmokhtar or Mr. Zeid, citing a lack of definitive information from the field. But they say the new arrangement with the U.S. has led in recent days to a raised tempo in strikes against al Qaeda-linked groups and their allies some time after the offensive began in January. That is a shift for the U.S., which initially limited intelligence sharing that could pinpoint targets for French strikes.

The lack of French drone capacity, for surveillance or attack, was noted in a New York Times article two weeks ago that profiled the French Defense Minister, Jean-Yves Le Drian.  Le Drian was blunt about the need for and the lack of drones (emphasis added below):

[W]hile the French express hope that African forces

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Whale Wars Update: Ninth Circuit Calls Sea Shepherd Actions “Piracy”

Here is the opening of Judge Kozinski’s opinion, reversing a lower court ruling and issuing a preliminary injunction in an Alien Tort Statute suit against the Sea Shepherd’s attempts to interfere with Japanese whaling vessels on the high seas:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Is this right? Paging our very own Eugene Kontorovich, a leading authority on piracy law!  Over at Opinio Juris, Julian Ku and Kevin Jon Heller discuss the opinion.  Myself, I plan to re-watch South Park. [...]

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House Judiciary Committee Feb 27 Hearing on “Drones and the War on Terror”

The House Judiciary Committee will hold a hearing on Wednesday, February 27, 10:00 am, titled “Drones and the War on Terror.”  Presumably video, a transcript, and the written submitted testimony will be posted at the committee website at some point.  The witness list:

  • John Bellinger, Arnold & Porter, and former Department of State Legal Adviser in the second Bush term.
  •  Robert Chesney, University of Texas, Austin, law professor and national security law expert.
  • Benjamin Wittes, Brookings Institution and Lawfare editor-in-chief.
  • Stephen Vladeck, Washington College of Law, American University, law professor and expert in national security law.

Well, first off, congratulations to Lawfare – all the witnesses are its founders or senior contributors to the blog, which has emerged over the last two years as the leading forum for national security law and policy (full disclosure: I’m otherwise known as His Serenity, Lawfare Reviews editor).

The hearing is billed as drones and the war on terror, but my understanding is that it will be much more narrowly focused on the question of drone targeting an American citizen.  We’ve had some discussion about that issue here at Volokh.  I have views on these issues, but I have not wanted to weigh in until after this hearing. Benjamin Wittes is one of the hearing witnesses, and he will be presenting testimony drawn in large part from a book he and I have underway now, Speaking the Law: The Obama Administration’s Addresses on National Security Law.  The book will be published by Hoover Institution Press, but will appear in chapter installments online starting in a few weeks.  The hearing testimony is Ben’s, but he is offering it as representative of both our views, and I should wait to say something substantive until he has spoken for both of us.  I’ll get his testimony [...]

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C-SPAN Book TV Interview on ‘Living With the UN: American Responsibilities and International Interests’

If you’re interested, I’ll be on C-SPAN Book TV tomorrow, Sunday, February 24, at 1:20 pm, talking about my book, Living With the UN: American Responsibilities and International Order.  It runs about half an hour, and though I have no idea whether I’m especially interesting on the program, I very much enjoyed doing it – I thought the interviewer was terrific (and I can’t seem to find his name on the website) and asked excellent questions.

The book itself has three agendas.  The first is to sketch out an account of international relations in which the US has a dual role in the world system – as both hegemonic actor and biggest player in the UN system.  The UN system of collective security is guaranteed by the US as the hegemon that provides important global public goods – a large part of the world can pay lip service to UN collective security, but at the end of the day depends upon the US.  The book’s second agenda is to give an account of the UN and its deep dysfunction.  The book’s third agenda is to give a critique of the Obama administration’s dealings with the UN – a quite sharply critical one.  The book urges the US to deal with the UN on the basis of its distinct parts and functions – always to engage with the Security Council; selective engagement with particular organs of the UN that work reasonably well; and disengagement with parts of the UN that are always going to end in trouble.

The book came out from Hoover Institution Press in mid-2012, but I think seems surprisingly more relevant in the second Obama administration.  I plan to start blogging on topics related to US-UN relations, of which there are many these days.  Here is [...]

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UN Invokes Absolute Legal Immunity in Haiti Cholera Victim Claims

As Kristen Boon reports over at Opinio Juris, the United Nations yesterday asserted complete legal immunity from any liability or claims arising from the Haiti cholera epidemic, which reportedly was the result of infected UN troops who were part of the United Nations Stabilization Mission in Haiti.  The United Nations benefits from a special treaty, the UN Convention on Privileges and Immunities, dating back to 1946 as part of the creation of the UN; it provides the UN with absolute immunity in national courts worldwide.  Lawyers for various Haitians infected with cholera submitted claims to the UN, working with a Boston-based NGO, the Institute for Justice and Democracy in Haiti (IJDH). Professor Boon explained the filing in an OJ post in October last year:

IJDH filed the complaint under a standard clause in the Status of Forces Agreement (SOFA), signed by the UN and Haiti, that provides for a third party claims procedure before a standing claims commission for disputes of a private-law character.  No such commission has been established in Haiti, nor, it appears, anywhere despite a 1996 decision by the Secretary General that the standard provision should be retained so that the UN does not act as its own judge.  To date, according to the lawyers, the UN acknowledged receipt of the claim, but it has not responded on the substance.   Moreover, there is very little information available on the procedure through which the UN considers such claims internally.  The IJDH lawyers, understandably, have expressed dismay by the lack of transparency with which the case is being assessed.  Indeed, the UN’s handling of this high profile claim stands in stark contrast to its stated position on the rule of law and procedural regularly in other contexts.

Yesterday, then, the UN responded to the claims with a [...]

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What (Legally) Happens to Our Social Media Accounts When We Die?

Not all legal scholarship is irrelevant twaddle; some of it addresses emerging legal questions that will indeed require answers in the real world.  This student Comment, “What Happens to Our Facebook Accounts When We Die?: Probate Versus Policy and the Fate of Social-Media Assets Postmortem,” by Kristina Sherry, appears in the December 2012 Pepperdine Law Review (40 Pepp. L. Rev. 185 (2012).  Given how much commerce now takes place through social media – Facebook, LinkedIn, Twitter, etc. – the legal questions are not just about dear old Mom or Dad and their photos of the grandkids (though those personal accounts also raise issues).  Here is the abstract (HT @GregoryMcNeal, via … Twitter):

More than 580,000 Facebook users in the U.S. will die this year, raising numerous legal questions as to the disposition of their Facebook pages and similar “digital assets” left in a state of legal limbo.  While access to and ownership of decedents’ email accounts has been philosophized for nearly a decade, this Comment focuses on the additional legal uncertainties posed by “digital death” in the more amorphous realm of “social media.” Part II explores the implications of digital death by conceptualizing digital assets and surveying the underlying legal principles of contractual policies, probate, property, and privacy concerns. Part III surveys current law surrounding digital death, emphasizing a 2010 Oklahoma statute granting executors and administrators power over decedents’ “social networking” accounts. Parts III and IV consider what the current state of the law means for individuals facing death (i.e. everyone) as social media interacts with both (1) probate law and (2) social-media services’ policies as reflected in their terms of service. Part V explores how the law and proposed solutions may address the salient policy goals of honoring decedents’ postmortem wishes while meanwhile respecting privacy; preserving digital assets; and

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A Gradual Shift in Human Attitudes Toward Emotional Interaction with Robots?

Sherry Turkle is an MIT professor who studies human- robot psychological and social interactions.  She has been documenting and studying the attitudes of humans toward having emotional relationships and affective interactions with robots over time, and notes a gradual shift toward seeing such interactions favorably.  She recently presented at the annual American Association for the Advancement of Science meetings; it was covered by LiveScience (Clara Moskowitz, Human Robot Relations: Why We Should Worry, LifeScience 18 February 2013, HT Insta).  LiveScience is a popularizer of science, of course, and Turkle’s academic research is sober and restrained, and much more sophisticated than a general interest site can easily convey, but the article captures well some important points.  First, attitudes are in fact shifting in the United States:

Turkle studies people’s thoughts and feelings about robots, and has found a culture shift over time. Where subjects in her studies used to say, in the 1980s and ’90s, that love and friendship are connections that can occur only between humans, people now often say robots could fill these roles …

Turkle interviewed a teenage boy in 1983, asking him whom he would turn to, to talk about dating problems. The boy said he would talk to his dad, but wouldn’t consider talking to a robot, because machines could never truly understand human relationships.  In 2008, Turkle interviewed another boy of the same age, from the same neighborhood as the first. This time, the boy said he would prefer to talk to a robot, which could be programmed with a large database of knowledge about relationship patterns, rather than talk to his dad, who might give bad advice.

Turkle is particularly well-known within the specialist community, however, for her concern that increasingly positive feelings toward machines as companions and replacements for human interaction is [...]

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When Everyone Wins … With a Zero

Inside Higher Ed has an amusing story of the unanticipated consequences of a professor’s grading system.   (“Dangerous Curves,” Zack Budryk, 12 February 2013.)  Johns Hopkins computer science professor Peter Frohlich used the following rule for his grading curve:

[E]ach class’s highest grade on the final counts as an A, with all other scores adjusted accordingly. So if a midterm is worth 40 points, and the highest actual score is 36 points, “that person gets 100 percent and everybody else gets a percentage relative to it,” said Fröhlich.

His Young Game Theorists, however, thought about the payoff table and realized the unintended consequences of the grading policy.  So they organized a collective boycott of the final exam.  Because they all did so,

a zero was the highest score in each of the three classes, which, by the rules of Fröhlich’s curve, meant every student received an A. “The students refused to come into the room and take the exam, so we sat there for a while: me on the inside, they on the outside,” Fröhlich said. “After about 20-30 minutes I would give up…. Then we all left.” The students waited outside the rooms to make sure that others honored the boycott, and were poised to go in if someone had. No one did, though.

Why didn’t anyone decide to go in?  As one of the students explained:

“Handing out 0’s to your classmates will not improve your performance in this course … So if you can walk in with 100 percent confidence of answering every question correctly, then your payoff would be the same for either decision. Just consider the impact on your other exam performances if you studied for [the final] at the level required to guarantee yourself 100. Otherwise, it’s best to work with your colleagues

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Arming a Hobbyist Drone with a Paintball Gun

In a Hoover Institution essay a few weeks ago, the Brookings Institution’s Benjamin Wittes asked, “How long do we really think it will take before a gun enthusiast arms a remotely-piloted robotic aircraft with his favorite handgun (very doable by a competent layperson with a few thousand dollars to burn)?” He points at Lawfare today to a new YouTube video of a hobbyist who has mounted a paintball gun on a hobbyist drone.  The paintball gun is impressively accurate, all things considered.  I leave to Dave Kopel and other gun law experts here the legal ins and outs of whether an actual handgun mounted on a drone; my uninformed assumption is that it is illegal, indeed criminal, now; the YouTube video says repeatedly that a real weapon would illegal. I’m  not a legal expert in this area (on Gun Appreciation Day, following Dave Kopel’s suggestion to consider supporting Second Amendment groups, I re-joined the NRA after several years of lapse from sheer inattention, but I don’t follow this area save international law issues such as the proposed arms treaty).  However, I learned of this video from former Deputy Attorney General Jim Comey, at a conference that looked at what it called the gradual proliferation of “many-to-many threats,” including cyber, bio-weaponization, and certain aspects of robotics and autonomous robotic systems.  “If this is what a novice with a small budget can accomplish,” the voiceover narrator says with understated ambiguity, “then clearly, this technology has a lot of potential.” Actually,from the standpoint of the individual gun-owner whose interest is self-defense, my guess is that this technology is pretty limited in its application, unless there were a considerable amount of automation introduced into the technology. It might be useful to home defense, I suppose, to send a drone rather than sending yourself, but [...]

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The Drone White Paper, Imminence, and “Active Self-Defense”

Co-Conspirator Jonathan mentioned posts at Lawfare blog discussing the Drone White Paper that has been much in the news along with notice that the Awlaki OLC memo will be shared with Congress, and all  with the Brennan hearings for CIA director.  I have added a post at Lawfare that Volokh readers might find interesting; it points out that one of the much commented issues of the White Paper, the question of “imminence” as a condition of attacking in self-defense, actually has a long history in US law and policy.  At least since the early 1980s, the US has embraced a standard of “active self-defense,” as I note at Lawfare.  Here, for example, is a statement of it in 1989 by then-Department of State Legal Adviser Abraham Sofaer, in an interagency cleared speech, and which references statements by then-Secretary of State George Shultz:

Some States, such as Lebanon, are simply unable to exercise authority over terrorists, even if they were inclined to do so. The United States must be free to utilize force with sufficient flexibility to defend itself and its allies effectively against threats resulting from such breaches of international responsibility. As Secretary of State George P. Shultz predicted in 1984: “We can expect more terrorism directed at our strategic interests around the world in the years ahead. To combat it, we must be willing to use military force.” ….

In 1984 Secretary Shultz described this policy as an “active defense.” “From a practical standpoint,” he said, “a purely passive defense does not provide enough of a deterrent to terrorism and the states that sponsor it.” Later that year he described why an active defense was needed to deter:

“We must reach a consensus in this country that our responses should go beyond passive defense to consider means of active

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