The Volokh Conspiracy

Just in time for President Obama’s big speech Thursday at the National Defense University on counterterrorism policy and strategy, Commentary Magazine has made available early my June cover article, “The Case for Drones.”  (Available free and not behind the subscriber wall.)  It’s a long essay arguing that drones are both effective and ethical, and addressing a number of the objections to each of those propositions.

The article has a particular audience in mind. It is aimed at conservatives and Republican members of Congress especially, to remind them that their sometimes knee-jerk attacks on the “imperial” Obama presidency risks one major piece of national security that the Obama administration has got well and truly right.  There’s no lack of imperial presidency, abuse of power material for conservatives to work with- pick your issue this week – but this particular issue is one where, if conservatives look down the road, they ought to see that any president, Republican or Democrat, will need to have available the national security tools of drone warfare and national security.  It would be a remarkably foolish thing if, by inattention or inappropriate and merely reflexive attacks on the Obama administration’s drone policy, Republicans in Congress wound up permitting drone warfare to be made politically, morally, or legally illegitimate – just as a future Republican president enters office and discovers that, yes, there are terrorist threats best addressed by drones.  Congressional Republicans, in the midst of the many abuse of power hearings, ought nonetheless to be scheduling hearings to invite current and former administration officials to reiterate their legal views on drone warfare, with the express purpose of standing with the President on this tool of national security and its permanent, legal, and legitimate place.

Commentary is a conservative magazine, obviously, and I’m writing there as a conservative for a conservative audience.  The framing above is political.  But there’s a much more neutral, less political way of framing the issue that ought equally to appeal to the broad national security center across both parties: the core elements of US counterterrorism policy, including detention policy and the whole range of what I’ve sometimes called “counterterrorism-on-offense” (including drones), needs to be put on a much firmer and more permanent basis.

Call this “institutional settlement” in counterterrorism strategy.  We need an institutional settlement around counterterrorism – we have a lot of policies that work pretty well, but they rely largely on executive branch discretion.  There are substantive reforms that need to be made in order to institutionalize counterterrorism policies, and they depend upon the two political branches coming together to give them legitimacy.  In my view there is broad agreement in the center as to these policies in substance; what they lack is a political foundation in actual legislation.  (But giving important credit, let’s note that Rep. Mac Thornberry (R-TX) has just offered legislation that would begin to address legislatively the accountability and oversight issues created by the growth of military special operations; on my first read, it looks like a very good start.)

The fault lies both with the administration and with Congress, but one way or another we today owe it to whoever is responsible for national security tomorrow to make sure that there is a stable, functional, institutionally legitimate framework going forward.  It won’t ever satisfy certain constituencies ever – a big chunk of the international community, Obama’s leftwing, or the Pauline wing of the Republican Party, which are simply at odds with the substance – but it is the pretty clear view of the broad center of both voters and this country’s leadership.  That said, precisely the fact that in the political center most everybody’s on board with the substance means that it’s hard to generate energy to give it the process, oversight, and accountability legs it needs to make its legitimacy permanent.  But institutional settlement, stability of the framework over time and administrations of different parties, matters hugely.

Certainly I hope the President’s speech tomorrow reaches out to address the needs of institutional settlement.  And I very much hope that Congress, and Congressional Republicans especially, take up the opportunity to find ways to engage legislatively – legislating as if there might be both Republicans and Democrats in the presidency.

(And thanks to John Podhoretz, editor of Commentary, for getting this June article up early in advance of the President’s speech, and for making it available free to non-subscribers.  Plus, for anyone interested, at this moment it looks as though I’ll be part of a roundtable commenting on the speech on To the Point on NPR tomorrow afternoon.)

At the Lawfare blog, a communication from an unidentified “senior national security official” in the Obama administration on the leak investigation against Fox News’ James Rosen.  It’s striking that a senior official would decide to communicate these views via a blog – though Lawfare (whose editor-in-chief is the former Washington Post journalist turned Brookings scholar Benjamin Wittes) has evolved into something closer to an edited magazine than a blog, with a readership that includes the key national security community in DC.  The unnamed official’s comments raise issues touched on by some of the analyses here; I leave it to others here at VC more expert than I in these areas to say what it means. An excerpt:

[T]he Administration has been roundly [criticized] for suggesting that a reporter who knowingly solicits classified information might be committing a crime. At the risk of violating the old adage about not picking a fight with someone who buys printer’s ink by the barrel, I want to take this on.

Via Paul Caron at TaxProfBlog and the Wall Street Journal Law Blog, a proposal by Joshua Silverstein, law professor at Little Rock-Arkansas William Bowen School of Law, to eliminate the “C” in law school grading.  Here is the SSRN abstract for “A Case for Grade Inflation in Legal Education,” forthcoming in University of San Francisco Law Review:

This article contends that every American law school ought to substantially eliminate C grades by setting its good academic standing grade point average at the B- level. Grading systems that require or encourage law professors to award a significant number of C marks are flawed for two reasons. First, low grades damage students’ placement prospects. Employers frequently consider a job candidate’s absolute GPA in making hiring decisions. If a school systematically assigns inferior grades, its students are at an unfair disadvantage when competing for employment with students from institutions that award mostly A’s and B’s. Second, marks in the C range injure students psychologically. Students perceive C’s as a sign of failure. Accordingly, when they receive such grades, their stress level is exacerbated in unhealthy ways. This psychological harm is both intrinsically problematic and compromises the educational process. Substantially eliminating C grades will bring about critical improvements in both the fairness of the job market and the mental well-being of our students. These benefits outweigh any problems that might be caused or aggravated by inflated grades. C marks virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention. It is time we adopted the practice followed by the rest of the academy.

It is worth the time to read the whole article, because it is a more nuanced argument than perhaps the abstract suggests.  In fact, speaking as someone best described as a reluctant convert to the virtues of a required mean because of the problems of grade compression, Professor Silverstein manages to persuade me as to the bottom of the scale and where it should cut off, given the realities of the perceptions of grades.  (I remain as convinced as ever of the need to rein in the pressure at the top – and it is the nuance of Silverstein’s argument that persuades me that these are not quite identical.) Part of the nuance of the argument is that Silverstein favors – “I am a staunch proponent” – the practice of grade normalization (required mean or some form of required curve).  It’s the lack of some required mean or curve that produces  pressure toward the top (in part from unstated forms of competition among professors that always ratchet the mean upwards, never downwards, or at least only rarely so). Having taken care of that top-end problem by a forced mean or curve, Silverstein can turn his attention to the bottom.

Silverstein argues for chopping off the C grade, first, on the grounds that many law schools essentially don’t use it, and this puts students from one school at a disadvantage to students from schools that don’t give Cs.  Although a matter of importance to some law schools, in context of his central thesis about C grades, it is the less relevant argument.  But he also argues – and this is the heart of the argument – that even within a school and its grading system, students suffer unjustified internal psychological harms as well as unjustified external market harms from being classed as C students, as though it were a grade like any other, but just a grade like any other that happens to be a bad grade.  These harms aren’t really justified in more than a tiny number of cases; a B- would send an adequate signal about performance without stigmatizing the student in the way that a C does.  Silverstein would ideally like to see the following:

[Note:  I've decided to pull this post about my experience with a conservative organization that had been contacted by the IRS about political activities because after further conversations with folks involved, I think the timing of letters from the IRS isn't enough to connect this particular group, which has long had its tax exempt status, with the IRS's admissions today.  My bad - I should have called the people involved directly and asked them before I put this up.  I'm going to pull it; I don't think it's got enough facts to support it. I'm going to leave up this explanation, however, in case people come looking for this post via cached copies somewhere. Apologies for raising the excitement on something I shouldn't have.]

Law students thinking ahead about not just passing the bar exam, but also the fitness and character requirements might take a lesson from a former student of mine.  He contacted me with some alarm a few days ago to tell me that the Virginia bar committee that has to approve fitness and character of applicants had expressed concern in his case on account of a large number of traffic citations.  Not unpaid tickets or parking tickets, or anything as serious as a DUI – simple speeding, in nearly all cases caught by automatic cameras in DC.  How many?  Nine in the past 18 months – he says many for the same stretch of DC road caught in the middle of the night by automatic radar/camera.

I don’t think this will cause him problems in the end, but it’s not something one wants to have a discussion about with the bar fitness and character committee either.  I’m submitting a special character reference about his general sense of responsibility and law-abiding nature.  Anyway, word of caution to law students looking down the road to getting sworn in.  (At least until self-driving cars take over DC roads and remove temptation; some commentators see a future in which insurance companies give lower rates to self-driving car users, precisely to remove these kinds of issues, once the insurers conclude that on balance the robot car is safer.)

Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military.  University of Texas law professor Robert Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary.  Whether this is an important step or not depends on one’s starting point, of course; I agree with Chesney that it is a big deal and a welcome step to regularizing . (Though if one’s view is that all these operations are unlawful, or that  they require judicial oversight, or something else, whether from the Left of the Democratic Party or what we might call the Pauline wing of the Republican Party, then you won’t be much moved.)

Seen within the framework of US law and oversight of overseas use of force operations, this is an important step.  A couple of observations.  First, this (soon-to-be) proposed legislation is with respect to operations conducted by the US military under US Code Title 10; it does not cover CIA activities, which are already subject to oversight and reporting under US Code Title 50.  Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; essentially it increases the role of the Armed Services committees in oversight of US military operations in what it defines as “Sensitive Military Operations” – which in practice means clandestine Joint Special Operations Command (JSOC) activities.  It does not alter the existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations.  Why this focus on military operations conducted by JSOC?

Counterintuitive as many might find it, the CIA is subject to far greater oversight, and at a far higher level of government, in its conduct of Title 50 covert activities than the US military is in its conduct of armed operations under Title 10.  There are good reasons why the military is not subject to direct oversight in essentially tactical decision-making in its traditional military activities once a decision has been made to commit to the use of force.  These decisions have long been understood to be within the discretion and responsibility of commanders who have the expertise to carry them out.  Oversight through the Armed Services committees is robust, including its closed sessions, but is not considered the same as that which Title 50 requires for covert activities because the kinds of activities traditionally conceived – conventional conflict versus covert activities – were different.  However, the expansion of the US military into clandestine activities – which might or might not meet the legal definition of “covert” under Title 50 and so trigger those oversight functions – has raised new questions as to whether the Armed Services committees’ oversight, traditionally conceived for conventional conflicts, keeps Congress sufficiently informed and permits sufficiently timely oversight in the case of activities carried out by JSOC.

[Added: Chesney has amended his original post to emphasize that in practice JSOC operations receive an op-by-op review by the Armed Services committees; he points to this Craig Whitlock article in the Washington Post.  I am quite prepared to believe this, but agree with Bobby that the formalization of this process in law remains just as important as ever. The problem of "institutional settlement" in US counterterrorism policy, discussed at the bottom of this post, is in large part taking jury-rigged and ad hoc processes, in order to both make them permanent features of the national security toolkit and to regularize and institutionalize them.]

Whether there is sufficient oversight depends partly on whether you think that oversight by the Intelligence committees is sufficient, or whether, in the case of US military operations through JSOC, the Armed Services committees ought to be more involved irrespective of what happens in the Intelligence committees.  My strong impression is that members of the Armed Services committees, on both sides of the aisle, believe that there needs to be a stronger role for those committees; this bill is partly a response to that concern.  This is reinforced by a further feature of the existing legislative structure for oversight.  Title 50 defines covert activities, but then exempts from the definition “traditional” military activities as well as activities done in routine support of others’ (e.g., CIA) activities.

This suggests – at least as a structural possibility – that important JSOC operations might be carried out on an internal legal view that they do not constitute “covert” activities because they are “traditional” military activities, and therefore do not trigger Title 50 oversight.  As military activities, oversight would take place through the Armed Services committees, but only in the relatively limited way that now exists.  One result of Rep. Thornberry’s proposed reforms would be essentially to close that structural gap. It does so by requiring oversight through the Armed Services committees for any “Sensitive Military Operation” carried out by the military, without regard to any other obligations under Title 50 covert activities.  Among its specifics, it requires reporting on the process and criteria for targeting decisions – the so-called “kill list” committees and “disposition matrix.”

This seems to me a very good idea.  I need to think through other parts of the proposed legislation to be sure I understand the implications, but as a general proposition, I’ve long believed that “institutional settlement” of the permanent structure of US “counterterrorism-on-offense,” as I’ve sometimes termed it, requires important reforms and updating of the legislative structure of oversight in order to take account of the realities of targeted killing, drone warfare, and other forms of highly targeted use of force, as well as the expansion of JSOC and its capabilities.  This proposed legislation is a first, and welcome, step toward getting Congress directly involved in that reform process.  Congress needs to be directly involved in updating the machinery of covert and clandestine operations – more precisely, in delineating the range of activities that involve discrete, intelligence-driven uses of force that carry hostilities directly to terrorism targets – and the oversight processes.  The administration ought to work with Congress to do that.  It is an area that – unlike many others, such as Guantanamo, what happened and why at Benghazi, etc. – ought to permit for a lot of bipartisan agreement.  Here is Chesney’s bottom line:

What’s not to like?  I have long had concerns with respect to whether there was adequate operation-by-operation transparency vis-à-vis Congress when it came to JSOC direct action outside of Afghanistan.  This legislation speaks directly and clearly to that concern, while also moving the ball forward at least a bit in terms of forcing the executive branch to explain to the armed services committees the legal and policy elements that govern its decisions regarding the designation of individuals or groups as objects of direct action.  The Obama administration should get behind this, not resist it—especially if it is inclined to shift some or all of the CIA’s kinetic portfolio over to JSOC.

This is not, as regular readers will know, an unstated attempt on my part to kill off these programs by process reforms.  It is instead endorsement of attempts to “discipline” them – as Harold Koh put it in his Oxford Union speech a few days ago – and put them on a footing of institutional permanence, so that these tools join the permanent repertoire of national security available to presidents into the future.  That requires a process of oversight by the political branches more attuned to the realities of how covert and clandestine uses of force are likely to unfold than existing statutes do today.  As it happens, Benjamin Wittes and I are co-authoring a new book that addresses the terms of institutional settlement in counterterrorism, based in an analysis and reconstruction of speeches by senior Obama officials and agency general counsels on national security (we’re putting it out chapter by chapter online, and Hoover Press will put out a hardback once completed).

Paul Caron at TaxProf Blog provides a table of law professor salary data reported by a handful of schools to the annual survey request from the Society of American Law Teachers (SALT); in addition to those reported salary figures (assistant professor, tenured professor, summer stipend), there are links to individual salaries at a number of public universities.

John Villasenor – a professor of engineering at UCLA and a Brookings Institution senior fellow – has a new article at Slate on the domestic use of drones.  (The article part of a conference held yesterday at the New America Foundation in conjunction with Arizona State University on domestic drone policy, with many fine participants; well worth checking out.)  The article’s fundamental point is that many features that will likely figure in FAA regulations intended to ensure safety in domestic airspace as drones are allowed to enter it will also be supportive of privacy concerns.  By no means does this make the problems of privacy go away, but it’s important to be aware of the ways in which safety regulation will affect and, in important ways, reinforce privacy.

Self-driving cars are receiving a lot of attention these days – partly as the technologies that make them possible advance and partly because, well, we the public are more aware of them and are realizing there is quite a lot to discuss regarding their regulation and use.  As the technologies that appear to be making self-driving cars possible advance from the science fiction to the hypothetical to the possible to the likely, technological paths become sufficiently determinate that it makes sense to be talking about the social, legal, and regulatory structures for their use.

Indeed, we are probably a little late in holding these discussions, because knowledge of the social and regulatory conditions can, and does, have an influence on the technological designs, and so generally, the earlier the better.  A new and quite interesting debate at the Economist asks the question, whether and how soon these cars will be ready for market (it’s not a debate over whether they are desirable, but instead whether they will be feasible in the foreseeable future). It’s striking that the pro-side (holding that they will be, and sooner rather than later) essentially rests on technological feasibility, while the con side rests partly on skepticism about the technologies but very considerably on whether the social, economic, legal and regulatory hurdles will have been overcome.

Self-driving cars are special for a couple of reasons.  One is that they will (and already do) consist of a bundle of technologies – in one sense conceived in the usual robotics formulation of sensors, computation, and physical movement.  But in the case of cars, it’s better understood as automation of the distinct systems of a car: acceleration, braking, steering, etc.  These are being automated in separate systems, and combined together in the computer control of the total vehicle.

A second feature about autonomous cars arises from the this “bundling” feature.  Automation, leading eventually to genuinely autonomous driving, is coming about gradually, as these systems are gradually introduced to new versions of vehicles.  It’s both gradual for automation of the vehicle as a whole, but it’s also the introduction of this bit of the bundle of technologies or that bit, rather than every piece at once.  At the top end of the luxury car range, mostly, you can buy a car that is gradually incorporating more and more of these systems and capabilities.  It happens gradually and is introduced in the marketing not as self-driving, which would be both untrue at this stage and also a huge flag for litigation, but instead as giving the human driver greater safety and convenience.  The automation is somewhat like an advanced form of cruise control – still entirely in the hands of the human driver – except that it gradually gets more and more advanced as in the case, for example, of being able to hold an approximate speed while still maintaining a safe distance to the car ahead and slowing appropriately.  In the case of steering – the ability to parallel park, for example, which is a headache in tight urban spaces for many people (me included), but amenable to machines because, at bottom, this is a matter of calculation and geometry, not interaction with other moving vehicles, provided that the car has sufficiently good sensors and steering control to do what the computer is able to calculate.

These kinds of features can be introduced to lines of vehicles – presumably to start out at the most expensive cars and gradually be introduced down the food chain – without the idea that any particular level of automation requires that the car be autonomous.  It’s gradual – incremental increases in the automation of separate systems until, finally, taken together, the car is able to drive itself. This final step of autonomy presumably requires complex integration of all these systems, as well as much additional programming for how certain decisions will be made by the vehicle, but the systems fundamental to the car moving as a physical vehicle will already have been automated by that point.

A third feature is that the idea is that they will be introduced as individual self-driving units into a more general ecosystem of cars that might also be autonomous, but more likely, at least at first, will be driven by human beings.  This sharply distinguishes the combined social and technological model from centralized transportation systems that contemplate a central computerized control of all the vehicles.  Many people – me included – would have imagined that self-driving cars could only work as part of a centralized grid controlling all vehicles at once, but the trajectory of the technologies involved is to try and find a way to allow autonomously driving vehicles to be able to operate among human-driven cars.  This requires certain capabilities of the technologies involved, of course, and it is not wholly certain that they will get there any time soon, to the point that one could go beyond Google’s test cars – which, note, operate on roads already mapped in enormous detail by Google engineers – to a general self-driving car capable of driving among human drivers.  Still, it is remarkable how far Google cars have come and how fast.

Given the speed with which the technologies are taking off, then, the social, economic, legal, and regulatory questions require answers.  Automobiles are very special, after all – driving is a complex social activity, a highly structured social activity featuring many formal rules and standards as well as many informal ones.  For most of us, it is the most trusting activity we engage in – trusting to other drivers to behave as expected in a multitude of formal and informal ways – and this in a social space that is remarkable both for its “natural” features (the law of inertia comes to mind) and its entirely artificial and socially constructed features (red means stop). The answers are not yet there – not really.  In one sense, all the necessary fields of law are in place, such as products liability, insurance law and markets, driving laws, etc.  But even if there is no new “law of robots” to be introduced, the answers are not yet in place, specific to these emerging technologies.

This was discussed in several very interesting sessions at the (fabulous – thank you, Ryan Calo and Michael Froomkin among others!) We Robots 2013 conference a few weeks ago at Stanford Law School (there is video as well as the draft papers presented at the link).  Bryant Walker Smith, an automative engineer and lawyer (and fellow at Stanford Law School’s Center for Internet and Society), and Josh Blackman, a law professor at South Texas College of Law, walked through some of the issues related to vehicle and driving codes.  Smith released last November, through CSIS, a terrific report on the driving laws of the 50 states plus international driving law (who knew there’s a Geneva Convention on driving law, aimed at standardizing some basic things like red and green?) that shows both that there is probably room for self-driving vehicles under the laws of many states, but that there are equally many ambiguities and questions – any of which might lead to legal headaches if litigated in accidents.  The liability issue is under discussion in many quarters, of course, such as the special 2012 law review symposium of the Santa Clara University School of Law (which, given its location, has carved out an important role in these emerging technologies) on legal issues related to driverless cars.

One important feature of the discussion over liability and insurance bears mentioning.  As writers such as Megan McArdle have correctly noted, the practical outcome in the existing tort system will likely be “functional” strict liability for the machine’s manufacturer or programmer or both in case of accidents.  This was noted as well at the We Robot 2013 conference. The resulting liability awards might be sufficient to deter the technology – even if overall the effect of many people using self-driving cars resulted in much safer roads.  This worries Google; one engineer remarked at the We Robots that Detroit car companies might have introduced various parts of these self-driving technologies, but thought about the liability issues and thought again.  A recent article in the Economist points to several possible solutions – each of which, however, essentially shifts liability off of the manufacturer or programmer of the vehicle and raises serious questions about who bears the costs and benefits of driverless cars, and what would be efficient or fair:

A study in 2009 of the legal risks of increasingly autonomous cars by the RAND Corporation, a research body, suggested two possible solutions: changing the liability laws to require courts to take the benefits of driverless technology into account when punishing carmakers for any failings; and limiting motorists’ ability to sue in state courts when driverless technology mandated by federal laws fails to prevent an accident.

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 in a remarkable series of Lawfare guest-posts by Pepperdine law school professor Gregory McNeal, this one on ways in which the process of targeted killing and drone warfare can be strengthened and made more accountable.  The key thing in Greg’s account is that – unlike many “reforms” that are just stalking horses for the real agenda, to end the practice altogether – his suggestions for possible reforms do not propose to throw the baby out with the bath water.  Again, I plan to discuss these at greater length once I’m back from London, and hope to involve Ilya and others in the discussion. But that post links to his earlier guest-posts, as well as to the academic article from which this is drawn.  Greg McNeal has spent an considerable amount of time interviewing on and off the record people involve directly in targeted killing and drone strikes, and understands better than anyone I know (including journalists) outside of government how this works in practice – the combined space of law, regulation, and actual practice at the nitty gritty level.

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.

(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 system might have, and in whatever component, the autonomous function is intentional and not inadvertent, and has been subjected to design, operational, and legal review to ensure that it both complies with the laws of war in the operational environment for which it is intended – and will actually work in that operational environment as advertised.  (The DOD Directive is not very long, and makes the most sense, if you are looking for an introduction into DOD’s conceptual approach, read against the background of a briefing paper issued earlier, in July 2012, by DOD’s Defense Science Board, The Role of Autonomy in DOD Systems.)

In essence, HRW seeks to ban autonomous weapon systems, rooting a ban on autonomous lethal targeting by machine per se in its interpretation of existing IHL, while calling for new affirmative treaty law specifically to codify it. By contrast, DOD adopts a regulatory approach grounded in existing processes and law of weapons and weapons reviews.  Michael Schmitt and Jeffrey Thurnher offer the basic legal position underlying DOD’s approach in a new article forthcoming in Harvard National Security Journal, “‘Out of the Loop’: Autonomous Weapon Systems and the Law of Armed Conflict.” They say that autonomous weapon systems are not per se illegal under the law of weapons, and that their legality or restriction on their lawful use in any particular operational environment depends upon the usual principles of targeting law. There will be machine systems that will never be lawful for use in some operational environments or even in any operational environment – but maybe some that will.

II

I think Schmitt and Thurnher have it right as a legal matter – and quite clearly so – but there are important dissenting voices.  A different view is offered by University of Miami’s Markus Wagner in, for example,“Autonomy in the Battlespace: Independently Operating Weapon Systems and the Law of Armed Conflict” (chapter in International Humanitarian Law and the Changing Technology of War, 2012).   New School for Social Research professor Peter Asaro has offered a reading of Protocol I and other laws of armed conflict treaties aiming to show that human beings are assumed to be present as moral agents engaged in targeting in these texts (forthcoming special section of the International Review of the Red Cross). Asaro is careful to hold out only that this interpretation is implicit, rather than explicit – a thoughtful and creative reading, though not finally one that persuades the hard-hearted lex lata lawyer in me.  (Asaro is not a lawyer, but a “philosopher of technology,” thus establishing himself as having the Coolest of Jobs, and also co-founder of an organization that has been calling for a ban for several years; Peter and I have cordially disagreed at several academic discussions, most recently at the outstanding WeRobot 2013 conference at Stanford Law School earlier this week.)

A debate over autonomous weapon systems is thus underway in academic law and policy – and in the Real World.  It promises to heat up considerably. Much of the debate (as Peter’s and my exchange at the WeRobot 2013 conference suggests) goes to what one believes is the bedrock moral principle (and which, if true, ought to be embraced as law) for targeting and weapons.  Is it per se immoral for a human being ever to be targeted autonomously by a machine that (as “full autonomy” is defined by DOD) has no human being “in” or “on” the loop, either in target selection or engagement with the target?  Is a human being essential to those two actions – target selection and target engagement – and is the absence of a human being fatal to its morality, irrespective of how good or how bad the machine does at targeting only what it ought to and minimizing collateral harms? Peter takes the position that the human being is essential; my position is that the bottom-level moral principle at issue here is not whether it is a human or not a human, but whether whatever does the targeting is able to comply with the requirements of the laws of war.  The “package” is simple an incident of nature, contingent, and not morally controlling.

Peter’s position, not mine, is the one taken by a number of very smart ethicists and philosophers, including, for example, Wendell Wallach, who describes a machine taking such a lethal decision “mala in se.“ University of Sheffield computer science professor Noel Sharkey (the well-known public commentator on these issues, with whom I’ve had the pleasure of friendly disagreement before and no doubt will again) also takes this position, though he also takes others that are factual in nature.  But on this moral argument, the requirement of a human being is the end of the moral chain, so to speak.  I don’t agree with it, but I understand the arguments driving it.  HRW’s report, by contrast, launches into quite a different kind of argument, and a much more problematic one.  Though it appears to accept the buck-stopping moral position, it also and mostly argues strenuously for two factual claims.

The first is that, no matter how much time goes by, as a matter of fact, machine intelligence will never be adequate to the moral decision-making that lethal targeting requires.  To which, of course, the proper response is, fifty years?  A hundred years? Two hundred years?  Maybe HRW is right.  But how does it know and what gives being a human rights monitor any special ability to see the future of technology – and tell us what to ban and not ban today, in order to ensure that a future that it purports to see does not come about?  Not all of us are quite as certain about where technology might go and what it might yield – and we are quite unwilling, on HRW’s say-so, to give up the possible future social gains (including reducing harm on the battlefield) that such technologies might produce along the way because HRW foresees a future somewhere between a Philip K. Dick novel and Terminator.  (Or as a friend put it, knowing Ken co-blogs with Ilya, “So who sailed from the Grey Havens and gave HRW a palantir? -ed.)

The second is that, no matter what technological developments take place, machines could never offer the affective and emotional qualities that targeting decisions in war do and properly should require on the battlefield – sympathy, empathy, compassion. Again, this is a factual claim about the future of machine intelligence – a prediction extending into the future, forever – that leaves one to ask, how does HRW claim to know any such thing?  And it’s a particularly peculiar claim coming from a human rights monitor whose bread and butter in armed conflict reporting not infrequently involves things soldiers did on the battlefield because of fear, desire for vengeance, simple bad judgment from cold and hunger, and the limits of human cognition in the fog of war – a conspicuous, yet all-too-human, absence of empathy and compassion.  One wonders why HRW didn’t just as easily focus on those less praise-worthy human emotions and at least entertain the possibility that a machine that has no emotions either way, but which might be programmed to behave in ways that respect the humanity of non-combatants and, further, might be programmed to simply sacrifice itself in order to spare non-combatants, might after all said and done be a very good thing.

III

In conversations with HRW, I’ve been told, and encouraged to note publicly, that it does not want its report and call for a ban to be understood in extreme ways.  I’m happy to do that, with one caveat.  So, for example, it does not mean everything one might read its call for a ban on “development” of fully autonomous weapons to say.  It also appears to want to find a way not to be interpreted as declaring the future history of technology, though that appears more difficult, given the language of the report.  My (genuine) advice to HRW on this point (though not my view, of course) is to say that it’s not predicting where technology will and won’t go, as a matter of necessity.  Instead, it’s saying that, in its judgment, it is overwhelmingly likely that all these bad scenarios would emerge over the long run – and that these scenarios are sufficiently bad to justify banning all these many things today. Continue reading ‘The Debate About to Heat Up Over HRW’s Call to Ban “Killer Robots,” AKA Autonomous Weapon Systems’ »

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.

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.

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 will pursue the Islamists into the mountains and deserts of the vast north, it is highly likely that French special forces will have to continue to operate on their own and alongside the Africans, with the help of American surveillance drones.

One of the most shocking lessons for him from Mali, Mr. Le Drian said, was the lack of French surveillance drones, which he called “incomprehensible.” France has only two drones in theater, he said. “A country with aeronautical skills, that makes good airplanes and that did not anticipate what surveillance and intelligence will look like tomorrow — or even combat!” he said. France “did not anticipate and refused to make this choice — but this doesn’t date from today but from 5 or 10 years ago. I have asked that someone explain the story to me so I understand why we didn’t do it, since, really, we should have.”

Perhaps the problem was national pride and a refusal to buy American? “I’m trying to remedy this impasse and this pride,” he said. “It’s a real question for us.”

Le Derian says that this dates back five or ten years.  No doubt that is true, but I wonder whether part of the problem in the last few years, especially, has been the increasingly vocal anti-drone campaigners and their impact upon national parliaments in Europe.  The anti-drone campaign has done a lot to create a stigma in Europe around drones, whether for surveillance or strikes.  It paints them as anything from a coward’s weapon – the “you refuse to fight your enemy man-to-man, mano-a-mano” meme, ignoring the fact though most of modern weaponry promotes remoteness, whether firing a cruise missile from the bowels of a ship, or firing an artillery shell from many kilometers away – to Skynet, a universal brooding presence watching everything.

II

The reality is a lot more prosaic, of course.  Drones require an airstrip, refueling and repair facilities, a sizable human team, just to keep them in the air, and all of that in-theater – piloting it from Nevada changes none of that. But the prosaic reality doesn’t count much, so far as I can tell, against predictions of the dystopian technological future drawn from a 1991 movie starring Arnold.  Sci fi pop culture is an easier narrative for public consumption than the much less interesting facts of how automation is gradually entering into the machines of war, as part of the process by which it is entering many technologies, military or civilian.  The problem is that all of us enjoy the pop culture references – me and you and everyone else – but we have passed the point at which we can rely for envisioning the future on Philip K. Dick novels.  There are actual technologies underway, with actual directions for future technologies, paths that open some possibilities and close others.  Those interested in serious discussions about where technology will and should go need to separate the “fun” moments of Terminator this and Skynet that from the real discussions of what real technologies are underway.    Continue reading ‘US Surveillance Drones Aid French Airstrikes in Mali’ »