October 2011

What Kind of Drones Arms Race Is Coming?

New York Times national security correspondent Scott Shane has an opinion piece in today’s Sunday Times predicting an “arms race” in military drones. The methodology essentially looks at the US as the leader, followed by Israel — countries that have built, deployed and used drones in both surveillance and as weapons platforms. It then looks at the list of other countries that are following fast in US footsteps to both build and deploy, as well as purchase or sell the technology — noting, correctly, that the list is a long one, starting with China. The predicament is put this way:

Eventually, the United States will face a military adversary or terrorist group armed with drones, military analysts say. But what the short-run hazard experts foresee is not an attack on the United States, which faces no enemies with significant combat drone capabilities, but the political and legal challenges posed when another country follows the American example. The Bush administration, and even more aggressively the Obama administration, embraced an extraordinary principle: that the United States can send this robotic weapon over borders to kill perceived enemies, even American citizens, who are viewed as a threat. “Is this the world we want to live in?” asks Micah Zenko, a fellow at the Council on Foreign Relations. “Because we’re creating it.”

By asserting that “we’re” creating it, this is a claim that there is an arms race among states over military drones, and that it is a consequence of the US creating the technology and deploying it — and then, beyond the technology, changing the normative legal and moral rules in the international community about using it across borders. In effect, the combination of those two, technological and normative, forces other countries in strategic competition with the US to follow suit. It sounds like it must be true. But is it? There are a number of reasons to doubt that moves by other countries are an arms race in the sense that the US “created” it or could have stopped it, or that something different would have happened had the US not pursued the technology or not used it in the ways it has against non-state terrorist actors. Here are a couple of quick reasons why I don’t find this thesis very persuasive, and what I think the real “arms race” surrounding drones will be.

“You win. You lose. Let’s have lunch.”

So concludes Philip Bobbitt, in an email comment to Ben Wittes, responding to his post on the question raised at Lawfare, here at OJ, and at Volokh, as well as in an opinion piece this morning by the New York Times public editor, Arthur Brisbane.  Philip is criticizing the policy, as I put it earlier, of conducting "foreign policy-by-leak."  I...

Memo to DOD: State Practice in NATO Conduct of Libya Operations?

Secretary of Defense Leon Panetta delivered a speech Friday at a NATO air base in Italy in which he praised NATO operations in Libya, reports the Wall Street Journal; Panetta delivered his remarks standing in front of a US surveillance drone.  I myself am relatively agnostic on the Libyan conflict as such.  However, something I should very much like to see...

Secret DOJ Memo on Awlaki Targeting, and NYT Public Editor on Policy-by-Leaks

I’m traveling and can’t stop to comment, but check out Charlie Savage’s New York Times story describing the secret DOJ memo, reportedly principally authored by David Barron and Marty Lederman, that provided the justification for putting Anwar Al-Awlaki on the targeting list in the first place.  Crucial reading on the targeted killing and drone debate. One thought, however. As Jack Goldsmith and...

The Case Against Corporate Aiding and Abetting Liability Under International and Federal Common Law

Professors Samuel Estreicher, John McGinnis, Michael Ramsey, Mark Weisburd, Ernest Young and myself, in partnership with the National Association of Manufacturers, filed a brief amicus curiae today in Doe v. Nestle, a Ninth Circuit Alien Tort Statute case. In the wake of the Second Circuit's decision in Kiobel, but also the DC and Seventh Circuit decisions, the question of whether and...

More on Releasing the Awlaki OLC Opinion

Jack Goldsmith and Benjamin Wittes have been arguing for several days now at the Lawfare blog that the Obama administration should release either the Justice Department opinion approving the Al-Awlaki attack, suitably redacted, or some statement that puts out in some detail its legal reasoning.  The Washington Post has evidently read those posts closely, as it comes out today with a strong editorial endorsing the same thing.  I broadly agree with these arguments. I am equally concerned, however, with something that both Goldsmith and Wittes raised in their posts, viz., the increasing absurdity of a system of “covert” action in which, as the ACLU’s Benjamin Wizner put it in an amusing exchange with the White House counterterrorism adviser John Brennan at Harvard Law School a few weeks ago, they must be not be acknowledged though we can read about them in the newspaper.  The problem is that this eventually goes from amusingly absurd to de-legitimating.  It is amusing so long as the operations are successful — the Awlaki killing, the Bin Laden raid — and the (still illegal) leaks to the press are all about taking credit. It turns into something a lot less fun when something goes bad, as something inevitably will in operations of this kind, and these same extra-legal channels of wink-wink-nod-nod are used as parties try to deflect blame, put it on someone else, utilize press leaks to shift responsibility: this is not accountability, finally, it’s a natural but deeply flawed way of avoiding true accountability.  It involves informal mechanisms for taking credit when something good happens, and offloading it on someone else when something bad happens.  It’s a bad, but unfortunately tempting, idea when the news is good and when the news is bad.