Former President Bill Clinton is back to practicing one of his core competencies: exploiting the 1995 mass murders in Oklahoma City for political advantage in order to suppress criticism of himself and his political allies. Accordingly, some persons might be interested in reviewing the multiple severe injuries that President Clinton inflicted on the Constitution in his “anti-terrorism” bill and his public relations campaign for the bill, a topic which I explored in a 101 page article in a 1996 special memorial issue of the Oklahoma City Law Review. [...]
It’s almost like Christmas.
I just got the cover design for Skating on Stilts, my policy memoir about DHS, terrorism, and technology. I found the artist, Mart Klein, on line and explained the basic picture I had in mind. Much credit to Hoover Press, though, for the font and cover design.
Book covers, like everything else in publishing, have been deeply affected by Amazon. You have to pick a design that is recognizable in a tiny thumbnail sketch as well as on the shelves at bookstores. This works for that purpose. Plus, I just really like comics-style illustration, and there’s a hint of Jim Steranko in this cover.
Publication is set for June of this year.
TSA is facing new challenges from powerful explosives hidden in areas that usually can’t be searched until after dinner and a nice wine. No one is wild about the millimeter wave and backscatter machines that show how we’d look on the beach if we were dumb enough to wear Speedos. The “puffer” machines that tried to find traces of explosive vapor were a better idea in theory but they didn’t work well in realistic airport trials. What to do?
Turns out, there is an alternative. My favorite airport search technology while I was at DHS is at last being commercialized.
They have a great sense of smell, they can be trained a lot cheaper than dogs, they recognize more smells, and when they retire after a few days on the job, they make honey for you.
Plus, as far as I know, no tribunal has ever ruled that it’s a violation of international law to tell suspected terrorists, “Listen, buddy, either you talk to me or you’ll spend some time alone with my partners. Yep, looky there, they’re already extending their proboscises at the thought. You better make your mind up right quick.” [...]
After getting a number of email requests for this testimony, I’ve posted it up for convenience at SSRN, although it is also available through the hearing page as well. I submitted along with it my earlier Weekly Standard article, Predators Over Pakistan. As I have said here earlier, however, this hearing on March 23 came just ahead of Legal Adviser Harold Koh’s March 25, 2010 ASIL speech. Dean Koh’s speech addressed many of the criticisms made of administration policy on drones, and I should add, in ways that I thought substantively correct as a matter of legal policy. I thought the Legal Adviser’s statement strong, clear, and substantively excellent. Overall, I was pleased with the form and direction of its legal framework (if you look at the second half of the Predators Over Pakistan article, the more legally oriented part, you will see that my analysis tracks certain parts of the Koh speech analysis fairly closely). I was also impressed with its directness – it was not filled with careful dodges and lawyerly hedges that would make it impossible to find a clear takeaway, quite the contrary.
There are many open questions, of course, and ways in which interpretations and legal judgments could go – but the statement on drones itself was impressively direct in what it chose to address. So I strongly recommend reading this testimony, if you plan to, with the Legal Adviser’s text to hand. (Below the fold is the SSRN abstract for my testimony.)
Other articles worth reading on the Koh speech? Shane Harris’s quick take at the Atlantic is a useful one, likewise Ari Shapiro’s take at NPR (including his sense of the audience reaction at the ASIL meeting, which I was not able to attend), and I will post links [...]
Update: I have had a chance to watch the video twice – I strongly recommend watching it, as it adds considerable language to the statements below in the press release. And welcome Instapundit readers and any others. Given how much I have pressed publicly for a statement by the administration’s lawyers, I want to say this much even while I’m still doing a careful lawyerly parsing of the text.
First, let me praise Harold Koh for stepping up to the plate. This is a plain, clear statement of the US view of the law and its application. It is measured, and yet exceedingly direct. My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States. As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare – most recently in a Weekly Standard article on exactly that theme, again this week in a sharply worded statement to a House subcommittee hearing, and an Ari Shapiro interview on NPR this morning recorded a a month ago – this was an enormously positive step.
Second, on the substance. On first read, I think this is a great statement. It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces. But it also asserts self-defense several times as an alternative. I had been greatly concerned that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view – that sovereignty and territorial integrity are [...]
I’m writing from Cambridge, where I just finished a great short conference on targeted killing and drone warfare put on by the Harvard Law School National Security Law Society and Journal. The presentations should go up as video one of these days I hope!) and I highly recommend them if you are studying this topic. Particularly for us lawyer types, the presentations by engineering professor Missy Cummings and Kennedy School professor Tad Oelstrom – both former military aviators, among many other things – was highly informative about the real world of UAVs in military use. My thanks to all the students who put the conference together – we had a lovely dinner afterwards, and I enjoyed the conversation with them a great deal. My thanks to the law school as well for funding it – times are tough, even at places like Harvard – and I appreciate the dean and the school’s willingness to continue hosting events that allow for important legal and policy discussions to go forward. (Delayed a couple of days posting this – travel and then internet problems at home.)
I tried to use my time at the conference to think through some of the questions I’ve been raising both in my first published piece on this subject, Targeted Killing in US Counterinsurgency Strategy and Law, and in the long opinion essay in last week’s Weekly Standard, Predators over Pakistan. I’m going to do a series of posts extending some of those discussions.
Probably the most important conclusion for me from discussions following my Predators over Pakistan essay is that I have not been sufficiently clear, with myself or in writing, that the appeal I am making to self-defense law does not preclude the application of the normal laws of war in those [...]
Taliban propagandist Adam Gadahn (a/k/a Adam Pearlman and “Azzam the American”) has been captured in Pakistan. In 2006, he was indicted for treason in the federal district court for the Central District of California. Both during and after World War II, federal courts were successfully used for treason trials for American citizens who had served as enemy propagandists or committed other acts of treason. If you would like some analysis of the precedents, as specifically applied to the Gadahn case, see Kristen Eichensehr, Treason’s Return, 116 Yale Law Journal Pocket Part (no. 229, 2007) (arguing that Gadahn should be prosecuted for “levying war” but not for “giving aid and comfort to the enemy,” because of free speech concerns); Douglas A. Kash, The United States v. Adam Gadahn: A Case for Treason, 37 Capital University Law Review 1 (2008) (good summary of the WWII cases). As Kash concludes: “By bringing Adam Gadahn to a U.S. court of law to face criminal charges, while strictly preserving and affording him all rights reserved for all defendants, this nation can yet again show the world that despite the attacks on that fateful day, the pillars of justice upon which this Republic stands have not crumbled.”
Update: It now appears that the man captured was Taliban commander Abu Yahya, not Adam/Azzam Gadahn/Pearlman. So consider this post a head start for the discussion when Gadahn is brought to justice. Unless a drone takes care of the job first. [...]
Well, “polemic” is probably closer to it. Regular readers have been hearing about this piece for a while, and I have posted various arguments from it (concerning targeted killing and Predator drones and the CIA and armed conflict and self-defense, and my general concern that the Obama administration has embraced a policy that its lawyers have not so far stood up publicly to defend as lawful against its gradually emerging critics in the international “soft law” community) here at Volokh and over at Opinio Juris. I will post a couple of comments on the piece later, including of couple of things I wish I had clarified or said differently (and open it up for comments then). Meanwhile, if you are interested, it is the cover in this week’s Weekly Standard (March 8, 2010). It is also very, very long, at some 8,000 words – for which I am deeply grateful to the WS’s editors but you perhaps will not be – and so you might find it easier to read a pdf of the print edition at SSRN. [...]
Harold Koh, Legal Adviser to the State Department, held an informal public discussion a couple of days ago with his predecessor from the Bush administration, John Bellinger. This was an American Society of International Law event, held at John’s law firm, Arnold & Porter, and moderated by my old friend and ASIL’s Treasurer, Nancy Perkins. CSPAN covered it, and the video is now available: The Obama Administration and International Law, February 17, 2010. (If I can find a youtube version from ASIL, I’ll see if I can embed it.)
I was teaching and so could not attend in person, but I have now watched the video and it is a terrific event. My public thanks to Harold Koh, John Bellinger, and Nancy Perkins for doing it. It’s a good thing for an administration’s senior lawyers, who have a difficult task of both setting out legal policies and often highly abstract and complicated legal arguments – and at the same time communicating them to the public, in part the professionals and lawyers and diplomats, but also to a broader public. While John was adviser, he experimented with entirely new avenues of discussion and communication, including a guest blogging appearance at Opinio Juris international law blog that was very well received. Harold Koh has also been doing some experimentation with different avenues of communication, and this kind of unscripted, informal discussion is an outstanding example of that.
(One note I would add is that a very great virtue of this kind of unscripted event is that it is informal, and not every word, phrase, and utterance has been vetted and run through the law-machine for alternative interpretations, and so on. So although I strongly urge everyone to watch the video closely, I believe equally strongly that one has to adopt [...]
With his usual nudge-and-wink, Matt Drudge invites us to be dismayed that “BIG SIS” — his moniker for Janet Napolitano — is “Monitoring Web Sites for Terror and Disaster Info.” Drudge links to a story saying that DHS will be monitoring social media like Twitter, as well as websites like Drudge, to keep abreast of events during the Winter Olympics. The source of the story is a twelve-page “Privacy Impact Assessment” issued by DHS.
This isn’t the first Privacy Impact Assessment (PIA) on DHS’s use of social media. A few weeks earlier, DHS wrote a similar assessment of using social media during Haitian rescue operations.
I am indeed dismayed, but not for Drudge’s reasons. True, it’s disappointing that neither the Volokh Conspiracy nor www.skatingonstilts.com is deemed worthy of government monitoring. But what’s really dismaying is that DHS and its Privacy Office felt obliged to labor over two separate and painfully obvious privacy assessments just to do things that you and I would do by simply firing up our browsers.
The Olympics PIA says in the first paragraph that DHS “is only monitoring publicly available online forums, blogs, public websites, and message boards.” Which should pretty much end the discussion. The government ought to be able to read the papers or watch TV or look at blogs just like anyone else. Or so you’d think. But no, the PIA drones on and on, offering thirty variations of “Hey, this stuff is public” as it assesses the “privacy impact” of, uh, surfing the web. And so we get painfully obvious applications of irrelevant privacy principle like this:
“7.1 What are the procedures that allow individuals to gain access to their information?
Social media are public websites. All users have access to their information through their user accounts. Individuals should consult the
Anyone doing serious work on detention, Guantanamo, war on terror, any of these areas, will want to read an extraordinary new study just out from the Brookings Institution by Benjamin Wittes, Robert Chesney, and Rabea Benhalim, The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking. (I’ve given the SSRN free download link; here is a short NPR piece on it with legal affairs correspondent Ari Shapiro.)
No matter what your particular legal viewpoint about detention and Guantanamo, this report will be required reading because of the breadth and depth of its analysis – running to all the extant cases. Ben Wittes is a leading scholar at Brookings in this area and UTexas’s Bobby Chesney is both a leading scholar, and also someone who took on Most Thankless But Important Job in conducting a major review for the Obams administration on detention policy. Rabea Benhalim is a Brookings Institution Legal Fellow in Governance Studies.
I went to Ben and Bobby, and asked if they would give me a guest post on the background to this report and their purposes in researching and writing it, and I would like to thank them for the short response below:
Guest post from Benjamin Wittes, Robert Chesney, and Rabea Benhalim:
President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges through their exercise of habeas jurisdiction are writing the substantive and procedural rules governing military detention of terrorist suspects. Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of military detention that is emerging from it.
Boumediene was interesting and important as much for
Many of us said during the days of the Bush administration that restrictions on civil liberties motivated by the conflict with Al Qaeda would be maintained during any subsequent administration, whether Democratic or Republican, as long as the terrorist threat remained. This prediction has been amply confirmed. The most recent example is the implementation of an explicit profiling program for airline passengers. The ACLU aside, there has not been much criticism of this initiative. (Maybe because some of the most prominent critics of the Bush administration’s counterterror policies are now members of the Obama administration.)
The persistence of policies across ideologically divided administrations is good evidence that those policies are now mainstream rather than partisan and ideological. Of course, many people will continue to disagree with them, just as many people continue to object to a standing army and a central bank; but these people are now officially on the fringes. There will also continue to be arguments about interrogation practices and the like, but a wide range of Bush administration policies—indefinite detention without charges, trials by military commission, the use of military force against suspected terrorists in foreign countries, secrecy privileges that undermine litigation against government officials responsible for terrorism policies, profiling on the basis of nationality, and much else—are now politically entrenched.
This development seriously weakens some common arguments heard over the last years. The major theory was that Americans support unnecessary or unjustified limitations on their liberties because of “panic,” exploited by elected officials for political gain. If this theory is correct, then it applies to the Obama administration, which is acting just like the Bush administration—not quite as aggressively on the margin, but almost so. But the theory was never a very good one. If “fear” or “panic” is to be given any meaning, then it [...]
Many of us who write, read, and comment on this blog work frequently with cost-benefit analysis, perhaps typically through discipline specific tools, whether in economics or finance or business or engineering or other disciplines. In my case, in my day job I’m mostly an international business-finance professor who uses the typical, and really not very sophisticated, tools of net present value, discounted cash flow, and so on, in my day to day work. I apply these ideas sometimes in my work in public law, but mostly these are, in my case, workaday tools in relatively narrow business contexts.
I understand CBA, that is, at the highly discipline-specific level of standard private firm decision-making. And I think, after a fair amount of philosophical study, I understand it at the most abstract level as consequentialism, and its many philosophical arguments. But oddly, I don’t think – despite reading a couple of textbooks and much besides on public (rather than private firm) finance theory – I really understand the “mid-tier” of cost-benefit analysis applied to public policy problems, in the way that, for example, Cass Sunstein writes about pretty much everything as a cost-benefit problem. Yet this is where CBA seems to be most offered as a policy template – and yet which puzzles me in many ways.
The puzzles include, for example, how one compares different values that seem to me fundamentally incommensurable. I am currently grappling with the question in precisely this “mid-tier” public policy context of proportionality in the law and ethics of war. Among other things, it does not seem to be very much of a problem when I am working in private firm CBA, such as NPV. Why not? Mostly because private firm decision-making tends, as a matter of process, to force firms to compare projects [...]
A difficult real world lesson for academics like me is that execution matters. It very often matters much more than institutional design. A suboptimal institutional design often matters less than how it is executed, and the attention with which it is executed. Hard for academics like me to keep in mind, because we are conceptually oriented and almost by nature care more about the design of a system than the messy, daily details of how, or whether, it is carried out. We tend to think, correctly, that incentives matter and that execution will tend to flow where the incentives flow. True, but not the whole story; there is another story (much discussed in business literature these days) that execution is not merely an afterthought – another too-easily made economists’ assumption – but a process that has its own dynamics.
The Christmas attack brings these problems of both institutional design, but also execution failure, to the fore as the disastrous performance of government agencies once again takes center stage. Watching the institutional blame game now starting to unfold (see also the excellent article by the NYT Scott Shane) caused me to recall three short books written by Judge Richard Posner a few years ago, as part of a Hoover Institution series from Rowman and Littlefield, on domestic counterterrorism. He was writing particularly from the vantage point of analyzing institutional design, but then going on to discuss the many reasons why government agencies are typically so appallingly bad at execution. His basic observation was that bureaucratic coordination in domestic counterterrorism was nearly unachievable, for reasons related to the internal governance of bureaucracies, agent-principal failures, and other reasons. Reasons that were partly bad incentives – but also simply the inability to get bureacratic focus on execution.
These books are worth revisiting as [...]
I’m traveling, so have not been able to comment as I’d like regarding the Christmas terror attack. However, I wanted to add one thought about cost benefit analysis and counter-terrorism. A couple of years ago I wrote a paper on ways in which the American political class is riven by deep foundational disagreements about the proper way to approach transnational terrorism. It is partly implicated in the “war” versus “law enforcement” argument, but actually it goes deeper than that – is it possible to have an offensive strategy against terrorism, or is the only long term possibility defensive perimeters represented by such things as airport screenings and the like? That, and an even more pessimistic possibility that simply says, following the John Mueller-James Fallows analysis, get used to it and anyway the chances of you getting killed by terrorism are smaller than a lightning strike.
The American public does not buy the “get used to it” approach and so, at least as a matter of public speeches and public stances, no American administration will do so, either. Instead, the argument divides over offensive versus defensive approaches, and over strategies that adopt a strategic view encompassing both a strategic vision that includes going on offense against terrorists as well as defensive strategies, contrasted with strategies that are, by their nature, tactical and defensive. The American political class is quite divided over this strategic question – viz., can there be a “strategy,” or is the only strategy really a defensive retreat to defensive tactics?
This deep seated “foundational” disagreement over the nature of terrorism and the response to terrorism has a further twist, however. Given the deep foundational disagreement over the proper kind of response, at the deepest conceptual level, the tendency is to retreat – as a procedural matter for how [...]