The Volokh Conspiracy

In his speech on drones and the War on Terror today President Obama made many valid points. But he also continued to elide some key issues. On the plus side, Obama correctly emphasized that the use of drones against terrorists is not inherently illegal nor immoral, that drones are often more discriminating and less likely to inflict civilian casualties than other military tactics, and that US citizens can be legitimate targets when they become enemy combatants.

Unfortunately, Obama also continued to dance around the more problematic aspects of his drone policy: who decides whether a particular individual being considered as a potential target is really a member of Al Qaeda and how much evidence is needed to back up such a determination. I emphasized these issues in my recent Senate Judiciary Subcommittee testimony on drones and here. Here are the most relevant parts of Obama’s speech on these questions:

In the Afghan war theater, we must — and will — continue to support our troops until the transition is complete at the end of 2014. And that means we will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces. But by the end of 2014, we will no longer have the same need for force protection, and the progress we’ve made against core al Qaeda will reduce the need for unmanned strikes.

Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect for state sovereignty.

America does not take strikes to punish individuals; we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.

All of the above strikes me as entirely defensible so far as it goes. But it leaves unanswered the crucial question of how we determine that a given individual really is a member of “al Qaeda and its associated forces.” It also ignores the issue of how we decide which groups qualify as associated forces of al Qaeda – another difficult definitional issue that I noted in my testimony. The 2001 Authorization for the Use of Military Force that constitutes the legal basis for the War on Terror only authorizes military action against “those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” North Africa and the Middle East are full of Islamist groups whose ideology is in at least some ways similar to that of al Qaeda and who support its goals to at least some degree. We are not and should not be at war with all of them. At the same time, the president is surely right that our military efforts cannot be limited to the narrowest possible definition of al Qaeda.

For reasons outlined by the president and co-blogger Ken Anderson, among others, I think it would be a serious mistake to abjure the use of drone strikes entirely. At the same time, we cannot allow boundless executive discretion in this area either. There must be tighter and clearer legal limits on presidential power in this field.

As President Obama himself puts it, there should be “strong oversight of all lethal action.” But it is not yet clear exactly what kinds of measures Obama has in mind or would accept. In a later part of the speech, Obama lists several possibilities, but does not actually endorse any of them:

Going forward, I’ve asked my administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested — the establishment of an independent oversight board in the executive branch — avoids those problems, but may introduce a layer of bureaucracy into national security decision-making, without inspiring additional public confidence in the process. But despite these challenges, I look forward to actively engaging Congress to explore these and other options for increased oversight.

It is certainly true that no oversight system is going to be perfect. But unconstrained executive discretion also poses severe problems. In the long run, moreover, such unconstrained power is likely to undermine the legitimacy of the use of drones altogether, just as the Bush administration’s advocacy of unlimited executive power undermined confidence in its detention and interrogation policies.

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.)

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).

My written testimony on the use of drones for targeted killing in the War on Terror submitted for yesterday’s hearing the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here. You can view the video of the oral testimony (both mine and the other witnesses) here. I will post links to the other witnesses’ written testimony when and if they become available.

UPDATE: The written testimony of all the witnesses is now available here (see list of their names off to the right).

UPDATE #2: A written statement submitted for the hearing by Senator Rand Paul is available here.

A video of my and other witnesses’ oral testimony on the use of drones for targeted killing in the War Terror, before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here (just click on “webcast”). It was interesting for me to see that there was a broad consensus among the academic and ex-military witnesses on two key points: that the use of drones for targeted killing of terrorists is not inherently illegal or immoral, and that we need stronger safeguards to ensure that we are limiting drone strikes to legitimate military targets. It seems to me that many of the senators who asked questions – both Democrats and Republicans – were also sympathetic on these points. Whether this will lead to appropriate reforms remains to be seen.

I will try to post my written testimony by tomorrow.

UPDATE: You can also watch the hearing at the C-SPAN site here, though there are a few technical problems in that video that I noticed.

UPDATE #2: I do want to clarify one unfortunately ambiguous aspect of an answer I gave to a question by Sen. Michael Lee around 2:07:00 of the video at the Subcommittee website. I mentioned there that the Israeli government government has a judicial review mechanism for considering the legality of targeted killing decisions. I should have made clear that the Israeli system, as outlined in the Israeli High Court of Justice’s 2006 decision on the legality of targeted killing, establishes after-the-fact judicial review rather than judicial review in advance, of the kind contemplated in proposals to create a FISA-like court to review targeting decisions aimed at US citizens in advance. Both Sen. Lee’s question and the part of my answer that mentions Israel were ambiguous on the issue of the timing of judicial review. So I wanted to clarify that point here. As I noted later in my testimony, we cannot and should not simply copy all aspects of Israeli policy in this area, since their strategic situation and political system differ from ours. But we nonetheless should try to learn from their experience.

For those who may be interested, on Tuesday at 4 PM, I will be testifying at a hearing on “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing,” held by the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights. My testimony will focus primarily on the issues addressed in this post. You should be able to watch the hearing on C-SPAN and possibly at the Subcommittee’s website linked above.

I was only very recently invited to participate in this hearing, and I am not sure who all the other witnesses will be. But I do know that Prof. Rosa Brooks of Georgetown will be one of them, and that Senator Rand Paul is going to make a statement before the Subcommittee at the start of the hearing.

UPDATE: The complete witness list is now available here. It is as follows:

General James Cartwright
United States Marine Corp (Ret.)
Washington, DC

Farea Al-Muslimi
Sana’a, Yemen

Peter Bergen
Director
National Security Studies Program
New America Foundation
Washington, DC

Rosa Brooks
Professor of Law
Georgetown University Law Center
Washington, DC

Colonel Martha McSally
United States Air Force (Ret.)
Tucson, AZ

Ilya Somin
Professor of Law
George Mason University School of Law
Arlington, VA

(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’ »

This Wednesday, April 10, at 12 PM, I will be taking part in an event on the legal and policy issues surrounding the use of drones in the War on Terror, at George Mason University School of Law. I will be on a panel with my GMU colleagues Jeremy Rabkin and Nathan Sales. The event is sponsored by the GMU Muslim Students Association and by Students for Liberty. It will be held in Room 120.

Co-blogger Ken Anderson praises Joan of Arc’s lengthy 1429 declaration of war against the English. I prefer the more concise approach adopted by Sviatoslav I, the 10th century Prince of Kiev: “Иду на вы.” I would loosely translate this as “I’m coming to get you.” Admirably to the point. International law mavens could learn a valuable lesson from Sviatoslav’s clarity and brevity.

Wikipedia claims that “Иду на вы” (the traditional Russian rendering of Sviatoslav’s statement) is not an entirely accurate modern Russian translation of the original Old East Slavic. But even the slightly wordier translation they advocate is a model of word economy compared to most modern international law documents.

Last month, former acting Solicitor General Neal Katyal made the case for creating an executive branch court to oversee the use of drones for targeted killings.  In Katyal’s view, subjecting drone strikes to an Article III “drone court” would be a “mistake.”  Thus he endorsed an alternative oversight mechanism to be housed within the executive branch.

My friend and former colleague, Amos Guiora, takes a different view.  Perhaps due to his experience with the Israeli military, and judicial oversight of some Israeli military actions, he thinks  Article III drone courts would be just fine.  He makes the case in his paper, “Targeted Killing: When Proportionality Gets All Out of Proportion.”  In Amos’ view, the use of drones for targeted killing mut be constrained by clear criteria and subject to true judicial oversight — oversight that would make sure drone strikes are only used in a proportionate manner and would also minimize operational error.

Legal scholar Peter Irons, a leading academic expert on the Japanese internment cases, has written a powerful article calling on the Supreme Court to explicitly repudiate those decisions [HT: Constitutional Law Prof blog]. Those notorious cases, most notably Korematsu v. United States, upheld the forcible detention of over 100,000 Japanese-Americans in internment camps during World War II, as well as various other racially discriminatory policies against them.

I. The Case for Repudiation.

As Irons notes, the overwhelming majority of legal scholars and jurists now recognize that the Japanese internment cases were outrageous injustices. They are among the most reviled decisions in Supreme Court history. In 1988, Congress and President Ronald Reagan formally denounced the internment, apologized to the surviving victims, and enacted a law compensating them for their losses (albeit, inadequately, given that each was paid only $20,000 in compensation for some three years of imprisonment, and the loss of large amounts of income and property). The Supreme Court itself has made negative references to these cases in more recent decisions, but has never formally overruled any of them. While lawyers today would be ill-advised to rely on these cases in their arguments, they are technically still on the books, and could potentially be used as precedents in the future – especially if changes in public or elite opinion make racially discriminatory war policies more popular than they are now.

In the article, Irons complies extensive evidence that federal government officials – including the Solicitor General of the United States – deceived the Supreme Court about the extent of the supposed security threat posed by the Japanese-Americans. He also cites evidence (long recognized by other scholars) that racism was in fact the most important motive for the internment policy. For example, General John DeWitt, the official who actually issued the internment order upheld in Korematsu, wrote that the Japanese had to be expelled from the West Coast because they were an “enemy race” whose “racial characteristics” made them untrustworthy. This statement, and others like it, directly contradicts the Korematsu majority’s statement that ” Korematsu was not excluded from the [West Coast] because of hostility to him or his race.”

II. What Kind of Repudiation do We Want?

Overall, the case for repudiating these decisions is very strong. But there are two additional issues that must be considered.

First, as Irons recognizes, any statement of repudiation by the Court would not be binding precedent because the original interment cases are today moot and there is no present litigation raising the same issues. Even if all nine justices issued a statement denouncing Korematsu, that would not officially overrule it or necessarily prevent government lawyers from citing it in future cases. I don’t think this is a decisive objection to Irons’ proposal. A formal repudiation by the Court would have great symbolic value, even if it isn’t technically legally binding. It would at the very least discourage lower courts and government lawyers from favorably citing these decisions in the future. Still, the difference between a mere public statement and actual overruling of precedent is worth keeping in mind.

Second, we need to ask what exactly it is that the Court would repudiate if it adopted Irons’ idea. The Japanese internment cases stand for at least three distinct, though interrelated, propositions:

1. National security in wartime is an important enough government interest to justify the use of racial classifications in at least some conceivable circumstances. Ironically, Korematsu was the first case in which the Supreme Court stated that racial classifications must be subjected to what we today call “strict scrutiny.” Today, strict scrutiny can only be overcome if the use of racial classifications is “narrowly tailored” to the advancement of a “compelling state interest.” It’s difficult to deny that national defense in wartime is a “compelling state interest,” especially if the Court refuses to overrule precedents such as Grutter v. Bollinger, which hold that the educational benefits of “diversity” in higher education qualify as a compelling interest. Surely wartime national security is at least as important as educational diversity.

2. Second, these cases hold that the judiciary should give Congress and the president broad deference in evaluating their wartime decisions. As the Court put it in Hirabayashi v. United States:

Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it.... Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of warmaking, it is not for any court to sit in review of the wisdom of their action or substitute it judgment for theirs.

3. Finally, the Court decided that the evidence that Japanese internment was a legitimate military measure was strong enough to pass the appropriate level of judicial scrutiny, especially in light of the supposed need for judicial deference to the executive and Congress.

It makes a big difference whether repudiation of the internment decision means rejection of all three of the above propositions, or just one or two of them. The simplest way to repudiate Korematsu and its companion cases would be to just reject Point 3 above. That’s the issue that the evidence in Irons’ article is most relevant to. But notice that if we leave 1 and 2 intact, it would be constitutionally permissible for the federal government to engage in future wartime racial internments so long as they had better evidence supporting their decision (or perhaps even so long as they didn’t lie about and exaggerate the evidence they have).

For a repudiation of the internment cases to have real bite, it would have to reject Proposition 2 as well as 3. Such a rejection has already partially occurred in the Guantanamo cases, where the justices showed relatively little deference to the president and Congress. In my view, the Court can and should rule that there is no special deference to wartime legislative and executive decisions that infringe on fundamental constitutional rights. The Japanese internment and many other historical examples show that the executive and Congress often cannot be trusted to limit wartime infringements on individual constitutional rights to those that are genuinely required by military necessity. But obviously that idea remains highly controversial both within and outside the Court, and I doubt you could get all nine justices to sign on to it. Certainly not those conservative justices who dissented in the Guantanamo cases in part because they thought the majority did not give sufficient deference to the judgment of the president and Congress.

Setting aside the details of legal doctrine, there is a deep underlying disagreement here between those critics of Korematsu who believe that a measure like the Japanese internment can never be constitutional and those who think that it could potentially be upheld in a case where the government presented much stronger evidence that there was a genuine military necessity that could not be dealt with in any other way.

Despite these caveats, I think a Supreme Court repudiation of the internment cases would have considerable symbolic value. And there is good reason for it to cover Proposition 2 as well as Proposition 3.

Attorney General Eric Holder has sent the following response to Republican Senator Rand Paul’s question about when the president has the authority to use drones to target US citizens on American soil:

Dear Senator Paul:

It has come to my attention that you have now asked an additional question: “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

As I discussed in more detail here, the big issue with drone targeting is not that the Administration claims that it can target American citizens under some circumstances, but what exactly the limits on that power actually are.

Holder’s letter today is somewhat reassuring on that point, at least when it comes to to domestic targeting. But, with respect to international targeting, it still leaves open the key question of who determines whether a potential target is an Al Qaeda leader, and how much proof they have to have. On the domestic side, there might occasionally be ambiguity about what it means to be “engaged in combat,” though hopefully that won’t be a problem in most cases.

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’ »

A group of armed men attack a U.S. warship on the high seas. Piracy under international law? Yesterday, the U.S. District Court in Richmond convicted a group of Somalis for an attack on the U.S.S. Ashland (such incidents are not uncommon). Boy these guys were dumb – what were they thinking?

Of course, if Judge Kozinski’s piracy opinion were wrong, the prosecutors would actually have to prove what they were thinking as an element of the case. That is, attacking a warship is the kind of thing one would ordinarily due for political purposes, so unless one actually takes a purely subjective approach to “private ends” (which I think obviously and entirely unworkable), this prosecution would be difficult under the “private isn’t political” rule.

The defendants argued they were distressed mariners just trying to get the Ashland’s attention. They should have said they were Somali militants protesting the unfairness of global wealth distributions. (The Stolen Seas movie that features me also features Noam Chomsky putting the Somali pirates in some such a light.)

These guys were the ones whose case was originally thrown out by a district judge who read international law very narrowly as not covering attempts, before the Fourth Circuit reversed (citing me...).

Also yesterday, Nigerian pirates released some hostages. The Ashland case is really a throwback; Somali piracy is largley (at least until the sequester kicks in). However, a new and much more violent piracy problem has emerged in the Gulf of Guinea, involving attacks on oil industry there. Thus far the attackers have invariably been described as pirates by the the UN, IMO, and the world at large as far as I known.

Yet the Nigerian pirate attacks are an operation of MEND (Movement for the Emancipation of the Niger Delta), who has carried on attacks for years on and off the high-seas. Its generally thought of as a political group. A big part of MEND’s “politics” is the redistrubtion of oil wealth in favor of local interests. They are treated as pirates (though I don’t know of any foreign prosecutions yet). Thankfully not much turns on their precise state of mind, or the imponderable line between politics and theft.

Piracy is a universal jurisdiction crime. We do not like to have jurisdictional considerations turn on vague, subjective factors – especially sensitive things like universal jurisdiction. Some might say the “political” exemption is for only “purely” political motives, but given the ubiquity of mixed motives, I have no idea how one excludes the possibility of non-political motives, or even how one defined “political” in a world where money and its distribution is a major political issue.

Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have torpedoed two liberal causes – the U.S. ratification of the Law of the Sea treaty, and a broad construction of the Alien Tort Statute.

A ruling that politically motivated attacks are exempt from piracy would certainly add weight to conservative skepticism of the Law of the Sea Treaty. The root of this skepticism is a concern that the meaning of international legal instruments is actually quite uncertain, and unforeseen vagaries will later be used against the U.S., which will have no monopoly on interpreting the law that applies to it. The retort is that such fears are paranoid; the treaty is clear, by now well-worn, and pretty harmless.

Well if the piracy provisions – which have not been the ones causing conservative anxiety – are actually highly disputed in their meaning on basic definitional points, there may be more to worry about than previously thought. Lets say the meaning of “private ends” is in fact undefined, with both interpretations open. The U.S.’s ability to treat maritime terrorists as international pirates will thus probably depend on what a bunch of professors and European foreign ministry lawyers say “private ends” means.

Again, if this is true of piracy – which has been in the Treaty for sixty years, and in international law for hundreds, imagine what other unplumbed surprises lay in the UNCLOS’s depths. Why by a pig in a poke? One cam imagine the fun at Senate hearings on UNCLOS after terrorists are ruled immune from piracy, or after the meaning of piracy is ruled to be indeterminate.

Second, piracy is the poster-crime for well-defined, universally agreed on crimes. U.S. v. Smith treated it as the paradigmatic crime that international law defines well enough to allow for domestic punishment, and Sosa similarly treated it as a clear, universally agreed on crime of the kind that makes ATS liability unproblematic. But if the one of the central elements of the crime is essentially undefined, that blows the central assumption of Smith and Sosa out of the water. Indeed, it gives credence to the district court in U.S. v. Hasan, a prosecution of Somali pirates where the District Court in 2010 concluded that piracy is no longer well-defined enough to be punishable without a legislative definition. I criticized that decision extensively (and the Fourth Circuit reversed), assuring the world that piracy is indeed well-settled. Maybe I was wrong!

Finally, just to show I have no whale in this fight, let me suggest a way for Sea Shepherd to wriggle off the hook on remand. If I were them, I would say that while piracy is the paradigmatic ATS crime, “political” piracy is not universally accepted enough to be a basis of ATS liability. This is different from arguing that it is not covered by LOST Art. 101; rather, it argues that the ATS imposes a higher standard than just violating international law. It requires actual judicial precedents demonstrating the universal accord about the crime.