A Follow-on Drone Hearing

The House Subcommittee on National Security and Foreign Affairs, chaired by Rep. John Tierney, held a second hearing (Wednesday, April 28, 2010), once again on the topic of drone warfare. The first, held back on March 23, was focused on the technology of UAVs; this follow-up hearing was specifically about targeted killing and drone warfare. All of the witnesses this time around were senior international law professors: Mary-Ellen O’Connell (Notre Dame), William Banks (Syracuse), David Glazier (Loyola Los Angeles), and KA.

(I’m traveling, so I’ll post the hearing information when I get home; the AP has a reasonably good summary (considering the difficulty of reporting on four law professors with quite different views politely agreeing and disagreeing with each other …!). The ACLU submitted a written statement (just downloaded but not yet read).)

We four professors represented a pretty good range of the available expert views, and in that regard particularly I think this was a useful hearing. In part, it sought to figure out what this debate meant following DOS Legal Adviser Harold Koh’s statement on drones at the ASIL meeting on March 25. Having been a sharp critic of the administration, or anyway its senior lawyers, including in the first drone hearing, for not stepping up to the plate on this topic, I applaud both the fact of the Legal Adviser’s public statement as well as the substance of his statement.

The pivotal issue – not surprisingly, for those following these debates – is the role of the CIA, whether it takes a role at all and, in particular, where it takes a role. The positions presented ranged from:

  • Professor O’Connell’s well-known view that the participation of the CIA is and always is an international crime;
  • Professor Glazier’s position that the targets who fit within the AUMF are targetable as part of an armed conflict and that the conflict goes where they go;
  • Professor Banks’ position that the participation of the CIA is lawful under both domestic and international law, but that the law in each instance needs to be updated and brought to fit contemporary circumstances; and
  • my own view, closest to Professor Banks’, that the CIA participation is lawful, but that there is a separation of the legal rationales and bases, depending upon whether it is a matter of armed conflict or the separate ground of self-defense.

Chairman Tierney did an excellent job of disentangling the highly entangled and conflicting positions among the witnesses. Not easy, because the disagreements are very sharp in some areas, less so in others.

(For my own part, I’m going to have to work on delivering a very clear message about my own views. Like many professors, including our President, I have a tendency to bury the lede in a bunch of hypothetical questions. I framed a series of questions about the role of the CIA – not because I think that its participation is unlawful, but because I thought it would be useful to frame the positions among which I was asserting one. When I read a number of the news stories afterwards, I discovered I had been cited for the propositions in the hypotheticals, not for my actual view that the CIA’s participation is, yes, lawful. My bad – there are reasons why I would never be a good litigator.)

The most striking take-away for me from the hearing was just how much the position of the professional international law community, as ably represented by Professor O’Connell, starts from fundamentally different premises than that of the US government, of any administration, at any time. In this particular instance, Professor Banks and I were, in various ways, channeling the administration – or, better said, the way in which the US government has long approached these questions as a matter of pragmatic law.

These two whole approaches to international law – that represented by Professor O’Connell, and that represented by me, and by Professor Banks and, in this regard, Professor Glazier – the approaches to international, and not just the substantive positions derived from them, are really like ships passing in the night. I tried to say this at the end of my comments: Professor O’Connell and I were arguing past each other, ships passing in the night. But the consequences in the real world are not ships passing; eventually they collide and one or the other prevails.  They can’t really meld into some mixed paradigm; the underlying assumptions are too different.

The problem?  If you talk about international crimes being committed by the CIA, each and every time it carries out a strike, those are words with consequences. It is hard to talk about merely “correcting” state practices to conform to international law in some general sense of the government of the United States, when the paradigm is that there are individuals who under principles of international criminal law, should not be undertaking a course correction by the administration. If that’s what you mean – and, please to observe, I don’t think this is the case at all – but if that’s what you mean, well, It should be indictment, arrest, and prosecution. For murder and extrajudicial execution and assassination. That’s what you mean if you invoke about international crimes; the whole paradigm is designed, by its nature, to reach to individuals and not simply “sides” in international law and politics.

Just to be crystal clear this time, I don’t think these CIA actions are international or domestic crimes. But the view of the administration, which I think generally legally correct, and that of its critics such as Professor O’Connell, really can’t be reconciled. And if you think it is a matter of international crimes (as, I stress, I don’t), then it doesn’t go away even if the Obama administration decided tomorrow to change course. It has undertaken hundreds of these strikes now, over a series of years; give it a couple of years more until it’s no longer President Obama, and then call it “crimes against humanity.”  After all, why not, once the political costs of attacking Democrats, with the genuine intent of finding criminal liability, is gone?

If the stakes are raised, as is currently underway by the soft-law community, to the level of serious allegations of criminality, then the Obama administration now finds itself at the beginning of the process that the Bush administration found itself in regarding detention, interrogation, and rendition. The ACLU is like a dog with a bone; following the relentless logic of collective action coordination failures, it will remain relentlessly focused, gnawing away, and those it seeks to play will be diverted and disorganized in their responses. Death by a thousand paper cuts, I think I wrote in the Weekly Standard. I am as ever stunned by the ability of government officials to think that the advocacy soft law community does not have the ability to set the agenda.

(Side note:  My general sense of the politics associated with this, then? Nasty. Not as nasty as I thought before Dean Koh’s speech, so perhaps I am simply inclined to see nastiness, but still … The table is being set now by the NGOs to turn the agenda into a genuinely international criminal one against individual CIA officials – once a Republican administration is in office. I find it hard to resist the sense that if you are, say, the ACLU or the human rights groups, this is win-win politically. The joys of public choice theory and defection game theory.

The game played by human rights organizations of what I have sometimes called “serial absolutism” is a special case in game theory of serially “moving the goalposts,” which in turn is a special case of serial insincere promising (these are the absolute, unshifting standards, we really, really promise this time!!), serial insincere promising about the procedural and constitutive rules of the game, followed by serial defection (whoops! it’s really crimes against humanity, now that the Republicans are in).  ’Moving the goalposts’ does not get enough attention in the iterated game theory literature, I think.  Unstable coalitions in domestic politics – leftwing Democrats aligned with various foreign and international constituencies, “gaming Spain,” as I’ve sometimes called it – prevent a unified American government from recognizing the pattern of repeat defection and trust-breaking and therefore refusing to take the promise seriously.

Thus, the advocacy groups start with the Obama administration, establishing their bona fides so no one can say that they weren’t even-handed, even though they know that it will only become real, a campaign that ripens into a real chase against individual lawyers, officers, and agents (probably starting with any easy-to-cut-out-from-the-herd military contractors), undertaken and underwritten by a concerted NGO campaign, ratcheting up to a crescendo a couple of years into the next Republican presidency. The only way to slow this down is by creating a policy and considered legal views in the Obama administration that can set a stable precedent for those administrations, Republican and Democrat, that follow.)

Director Panetta has been doing a remarkable job of push back in the press, and certainly with Congress, on the efficacy and focus of these strikes. (Of course, I regard Legal Adviser Koh’s statement as an outstanding beginning for the American government to state its long-term position on the law.) I suspect Panetta has convinced some important, and not otherwise friendly, reporters that the collateral damage is far closer to what the CIA says than what the NGOs say. But I’m not sure even he understands how much the ground is shifting even from the argument over collateral damage to a much more basic one – why does the CIA even engage in the use of force at all? Shouldn’t all uses of force be either military (in an armed conflict) or law enforcement?

Why does the CIA have any function of covert action? That question was plainly on the table in the House subcommittee hearing, and I thought there was a twinge of hesitation on the part of some lawmakers. I remarked – seemingly off topic but in fact at the center of things – the United States, like other leading states, has long believed that its national security and self-defense required a covert civilian service. We thought about ending it in the Church hearings but didn’t. We have had many opportunities to end it, but we’ve never taken them.

In my view, we are right to keep that ability. But there are plenty of people who think it a bad idea on both policy and legal grounds. (For that matter, in my experience, the Defense Department has many serious military people, both operational and legal, who think the use of force by the CIA is always a mistake and indeed illegal. I’ll discuss that view in another post.  Professor Glazier seemed to reflect this view in part, although I don’t want to speak for him on so fundamental a question.)

We are at one of those periodic moments, in other words, when the fundamental question of CIA covert use of force is on the table of public debate again. I hope that Director Panetta pays close attention to the tenor of the hearing last week and understands that among the multiple layers of issues – drones, drones beyond AfPak, the role of the CIA in an armed conflict, the role of the CIA in self-defense – the question of whether the CIA should ever use force is on the table.