Brookings Conference on Legislating Counterterrorism

I spent the past two days at an excellent conference organized by Ben Wittes – we discussed his book Law and the Long War (which I see you can get for the bargain price of $6.99 on Amazon) here at OJ when it came out – on ways in which Congress should legislate the future of US counterterrorism.  It was co-sponsored by Brookings and the Center for the Constitution at Montpelier, which is a study and conference center in Virginia at the site of the original home of James Madison, and a very lovely place to meet.  (And before that at a meeting on robotics and war at Harvard, so it’s been a busy week.)  

The conference was held to discuss papers in a forthcoming Brookings volume on this topic; many of the authors of the book’s chapters were on hand to present their papers, and the audience included – drawing on Ben’s remarkable rolodex from his days at the Washington Post, among other things – many important journalists from US newspapers.  The Washington Times’s Jon Ward summed up the meeting here and here.  The general Brookings page on the forthcoming book is here, Legislating the War on Terror: An Agenda for Reform, and the Brookings site has op-ed length versions of some of the papers.  As the Obama administration moves forward on different fronts in counterterrorism reform – such as the detention scholars’ discussion that Deborah mentioned earlier and many other things, some controversial and some not – I’m convinced that the papers in this volume deserve very serious consideration.  Excepting my own, of course, they are all pretty practical and oriented toward legislation – this is policy writing, not scholarship – and the authors are all centrists of either party, and possessed of considerable expertise.  Several, like David Kris, have gone back into government; others, like Matt Waxman or Jack Goldsmith, are former officials actively looking for ways to advance reform agendas.  Bobby Chesney, Stuart Taylor, David Martin, and others … anyway, listening to the presentations over the last two days, I was impressed with how practical and forward-looking they were.  I understand that the academic law community in international law is, to some extent, in a very different place about many of these issues – starting, I suppose, with mine, on targeted killing and robotics – but in the world of Washington policy, this seems to me an important contribution to creating a long term, durable, and above all legislatively enacted structure for dealing with terrorism.  You can judge for yourself when the book comes out later this year.

My own contribution is on a topic that is perhaps slightly tangential to the concept of a legislated framework for counterterrorism – which is to say, a framework of domestic law for things like detention, interrogation, FISA, etc.  My paper, which I’ll post up if Brookings will let me once complete, is forward looking with respect to the tactics of counterterrorism, specifically targeted killing, particularly by Predators and advancing robotic technologies.  (Yes, dear readers, you knew I would work around to robots eventually.)  My fundamental observation to the Obama administration is that, to judge by Campaign Obama and Administration Obama, it embraces targeted killing as a useful method for going after terrorists themselves.  But even as the administration wants to expand the reach of the strategy, the legal space for it threatens to shrink.  And it is not especially clear that the administration understands that acceptance of certain things that parts of its foreign policy advisors would like to do – accept extraterritorial application of the ICCPR, for example – would have potentially grave effects on the legal rationales it offers for its targeted killing strategies.  

I see it as a potential clash within the Obama administration’s foreign policy team between the transnationalists and what I have sometimes called the “new liberal realists.” Targeted killing is one of those areas in which it is possible that one wing of advice in the foreign policy apparatus will come up against another wing.