This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

Following-up on my earlier post on the difficulty of changing contracting practices by executive agencies, I thought I’d highlight a few quotes from a January 2011 NY Times article about Dewey Clarridge. Clarridge has had a long and storied career in and out of the CIA. He  (proudly) claims responsibility for having the idea to mine Nicaraguan harbors back in the ‘80’s (great quote appended at the end of this post).  He’s spent quality time with the Contras, was a CIA station chief, had plans to use special ops to oust Saddam Hussein in the 1990’s, and so on. Read his account in his autobiography.

Anyway, Clarridge popped back up into the public consciousness when the New York Times ran the story of an outsourced intelligence op in Afghanistan run by… you guessed it.

Read the whole article, it goes into much greater detail about Clarridge and intelligence outsourcing but here are a few choice quotes for our discussion. First, keep in mind that Pentagon contractors are not supposed to actually act as spies. That being said:

To get around a Pentagon ban on hiring contractors as spies, the report said, [the DOD official’s] team simply rebranded [Clarridge’s company’s] activities as “atmospheric information” rather than “intelligence.”

[The DOD official,] Mr. Furlong, now the subject of a criminal investigation by the Pentagon’s inspector general, was accused in the internal Pentagon report of carrying out “unauthorized” intelligence gathering, and misleading senior military officers about it. He has said that he became a scapegoat for top commanders in Afghanistan who had blessed his activities.

So why go to all the trouble of outsourcing actual intelligence operations in the first place?

The private spying operation, which The New York Times disclosed last year, was tapped by a military desperate for information about its enemies and frustrated with the quality of intelligence from the C.I.A…

As for what happened when the operation was discovered:

On May 15 [2010], according to a classified Pentagon report on the private spying operation, [Clarridge] sent an encrypted e-mail to military officers in Kabul announcing that his network was being shut down because the Pentagon had just terminated his contract. He wrote that he had to “prepare approximately 200 local personnel to cease work.”

In fact, he had no intention of closing his operation. The very next day, he set up a password-protected Web site, afpakfp.com, that would allow officers to continue viewing his dispatches.

I can’t quite decide if this is an example of effective monitoring or not. They found the illegal op and the shady contract but Clarridge does not seem much deterred by this.

In any case, a colorful example of the problems of outsourcing intel operations.

Oh, and as for mining the Nicaraguan harbor? Here’s Clarridge’s recollection:

So I was sitting at home one night, frankly having a glass of gin, and I said you know the mines has gotta be the solution. I knew we had ‘em, we’d made ‘em outta sewer pipe and we had the good fusing system on them and we were ready. And you know they wouldn’t really hurt anybody because they just weren’t that big a mine, alright? Yeah, with luck, bad luck we might hurt somebody, but pretty hard you know?

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

On behalf of all of us at Opinio Juris, I’d like to thank Laura (and our guest bloggers) for joining us this week to do a discussion about her timely new book, Outsourcing War & Peace. As someone who teaches National Security Law and Contracts, I was particularly struck by an observation she made early in the chapter on contracting: “although typically conceived as the quintessential private law form, contracts… might be a tool to instill broader public values—in short, to ‘publicize’ the process of privatization.”

This is, as Laura notes, an inversion of the classic story that we tell about contracts: that they allow for private ordering among parties, setting new rules that might be different than “public” rules that apply to all. (I am thinking, for example, of Lisa Bernstein’s scholarship on the diamond industry.)

But Laura is looking at contracts as a means to apply public law rules on private actors that undertake quasi-governmental activities in foreign affairs. It is a suggestion that opens up many possibilities for better regulation of prvate military contractors, foreign aid providers, intelligence shops, and so on. Laura describes the details of the types of requirements that can be made via better contracting including the incorporation of human rights and humanitarian law standards, and baseline training requirements. She also tackles the difficult issue of how to monitor contractual compliance. But I want to focus on a different impediment: how do we shift from the current habit of lax contracting standards in foreign affairs contracting to this new form that incorporates international and domestic public law standards… [Continue reading via the link]

Following on Ken’s most recent post on autonomous battlefield robots, I came across the short story Malak by Peter Watts (you can read it here). What jumped out at me was a short story that beginning with epigrams such as these:

“An ethically-infallible machine ought not to be the goal. Our goal should be to design a machine that performs better than humans do on the battlefield, particularly with respect to reducing unlawful behavior of war crimes.”

–Lin et al, 2008: Autonomous Military Robotics: Risk, Ethics, and Design

“[Collateral] damage is not unlawful so long as it is not excessive in light of the overall military advantage anticipated from the attack.”

–US Department of Defense, 2009

So, yes, a short story that touches on the legal and ethical questions of using autonomous—not just unmanned—aerial combat drones. The epigrams, by the way, are to real reports. The Lin study was prepred for the U.S. Navy’s Office of Naval Research by the Ethics + Emerging Sciences Group at California Polytechnic. (It is available in .pdf here.) The definition of collateral damage can be found in various places, included the Department of Defense Dictionary of Military and Associated Terms (Available here in .pdf).

Watts is a scientist whose fiction has gained some notice for its intelligence and for grappling with unpleasant aspects of the interactions of scientific revelation, technology, and society…

[More via the "Continue Reading" link]

Benn Steil, director of international economics at the Council on Foreign Relations has an interesting peek at the history of the formation of the World Bank and IMF in a New York Times op-ed. From their inceptions, the World Bank has traditionally had an American President and the IMF a European Managing Director. But why? I had learned in college that it was a grand bargain needed to ensure European (particularly French) support. But Steil examines a more precise question: why did the Europeans get the IMF post, particularly when the IMF was the institution that the Americans viewed as being more central to their own interests? The answer, it seems, relates less to theories of international organization management and more on J. Edgar Hoover.

Harry Dexter White, the Treasury Department’s key representative at the Bretton Woods conference and a key architect of the IMF had a “vision of a postwar global financial architecture dominated by the American dollar.” Steil continues:

[O]n Jan. 23, 1946, Harry S. Truman nominated White to be the first American executive director of the I.M.F. (such directors representing the major member countries). Truman was also widely expected to nominate White for the fund’s top post of managing director.

But trouble soon arose in the form of J. Edgar Hoover, the F.B.I. director. White had been under surveillance for two months, suspected of being a Soviet spy. Hoover prepared a report for the president, based on information provided by 30 sources, including the confessed spy Elizabeth Bentley, asserting that White was “a valuable adjunct to an underground Soviet espionage organization,” was placing individuals of high regard to Soviet intelligence inside the government. If word of his activities became public, Hoover stressed, it could jeopardize the survival of the fund.

Oblivious, the Senate Committee on Banking and Currency approved White’s nomination on Feb. 5, the day after Hoover’s report was delivered.

Secretary of State James F. Byrnes, having read the report, wanted Truman to withdraw the nomination; Treasury Secretary Fred M. Vinson wanted White out of government entirely. Truman, who did not trust Hoover but who knew he had a major political problem on his hands, decided to quarantine White as the American I.M.F. executive director, a huge step down from managing director.

And what started as a defensive manoeuvre, hardened onto tradition and expectation.  The whole op-ed is interesting, with some great bits on John Maynard Keynes. I look forward to Steil’s forthcoming book, The Battle of Bretton Woods.

We thank Legal Adviser Harold Koh for guest posting the statement on Syria that he delivered earlier today at the American Society of International Law Annual Meeting.  As this posting is a release of a speech text and Legal Adviser Koh will not be online to respond to comments, we at OJ didn’t place a comment thread under the released text. However, we open the following comment thread to encourage discussion of the speech.

The ABA Journal has a cover story about the threat posed to island states by climate change. This is a topic we have discussed on Opinio Juris at various times. Duncan wrote at length about the Maldives; I had a shorter piece here, and there are various references in the midst of other blog posts.

The Journal article is long and covers a great deal.  Either I or some of my co-bloggers will likely come back to this at length. For now, I just wanted to post a “heads-up” and highlight some points of interest regarding sovereignty and especially the human toll of sinking states:

“A small island is likely to become uninhabitable long before it disappears,” says Jenny Grote Stoutenburg, an international law scholar who is a Ph.D. candidate at the University of Hamburg in Germany. And it is at the moment when the last remaining residents flee the last inhabited island that the state would cease to exist… [snip]

It would be unprecedented for a nation to lose its statehood because its land actually disappeared, says Caleb W. Christopher, who is legal adviser to the U.N. mission of the Marshall Islands. “There’s never been a time when a government—even a small government—has vanished without somebody else coming over and taking over and succeeding it. Peru is always Peru even if another country takes it over, or if their government changes. It doesn’t just up and vanish off the face of the Earth.”

A key issue is how those nations can seek to preserve their statehood, claims to resources and national identity when they have no actual physical homeland.

Speaking at last year’s conference, Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate, Stoutenburg advised that island nations should try to keep at least some bit of land inhabitable and populated in order to anchor their claims to continued statehood… [snip]

Island nations were advised to freeze existing maritime boundaries by basing them on geographical coordinates that will not shift with retreating coastlines.

The article discusses other possible reactions to the problem of sinking sttaes, including concerted action by states-parties to the UN Convention on the Law of the Sea (UNCLOS) to draft new rules that take into account pre-existing sovereign claims prior to the loss of territory, to the idea of a non-territorial or ex situ state:

It would be made up of citizens scattered around the globe and headed by a government that would manage common resources, such as maritime resources and compensation funds; provide consular protection; maintain cultural ties and identity; and even keep alive the possibility of reunification in a new location.

However, as a law professor who writes about problems if statehood and sovereignty, it was the next two paragraphs that really caught my attention:

Heady ideas, perhaps, but some island nation citizens came away from the conference dispirited. During one question-and-answer session, a highly emotional resident of the Republic of the Maldives, a cluster of atolls and islands in the Indian Ocean where the average elevation is only about 5 feet, insisted that island nations “cannot be and should not be sacrificed on the altar of the good life of the rest of the world.”

Acknowledging such sentiments, Jariabka of Islands First says that, on an abstract level, the imminent statelessness of island nation residents is “a very interesting, sexy topic to be writing about as an academic.” But, he says, “my perception was that when you had the questions and comments, some of the government officials, the people from these islands, were visibly frustrated because they were hoping to learn how to save their islands rather than how to best manage their eventual extinction.”

And that is a good reminder for all that interesting legal conundra for some can be life-and-death issues for many.

I’ll have more to say on these and other sovereignty issues in another post. For now, I recommend reading the Journal article as well as Duncan’s previous post.

Here’s something you don’t see every day: Oxford University is seeking applicants for the Chichele Professorship of Public International Law. Oxford’s announcement begins as follows:

The Oxford Faculty of Law is a major centre for the study of international law. We aim to build Oxford’s role in the field, as international law becomes increasingly important and complex, and more closely involved with particular areas of domestic and transnational law.

The Chichele Professorship is at the centre of the University’s strength in international law. The Professorship, which is a position of senior leadership in the discipline, in Oxford and worldwide,will fall vacant upon the retirement of Professor Vaughan Lowe QC in September 2012.

Here’s the full list of previous holders of the chair (up to Vaughan Lowe, the current Chichele Professor):

Alberico Gentili, Regius Professor, 1587
Mountague Bernard, 1859- 1870
Thomas E. Holland, 1874-1910
Sir Henry Erle Richards, 1911-1922
James Leslie Brierly, 1922-1947
Sir Humphrey Waldock, 1947
D.P. O’Connell, 1972-1979
Ian Brownlie QC , 1980-1999

Gentili, Brierly, Waldock, Brownlie, Lowe… or, to sum up, many consider this the most storied chair in international law in the world.  Vaughan Lowe gave a succinct history of the professorship in his inaugural lecture. The application information is in this pdf. Good luck.

Hat tip to Don Anton for pointing this out. (and if you don’t read Don’s Weekly Digest of International Law, you should!)

My previous post mentioned battlefield robot analogs of dogs, cheetahs, pack animals, even humans. Now behold the synchronized nanobot swarm! 

Here’s what national security analyst John Robb had to say about the tactical benefits of a battlefield drone swarm:

•It cuts the enemy target off from supply and communications.
•It adversely impacts the morale of the target.
•It makes a coordinated defense extremely difficult (resource allocation is intensely difficult).
•It radically increases the potential of surprise

Things start to get really interesting when the confluence of two technologies cause even more radical changes. Take, for example, how fabrication technology and micro-drone tech may one day allow new drones to essentially be printed out by fabbing machines.  Not there yet, but perhaps someday.

The underlying issue is that technology is changing so fast, it may be thwarting legal regulation from adequately responding to the implications of technological change. I italicized “may” because I am not certain that this is the case.

Law (and perhaps especially the common law) is propelled by metaphors.  Its timely adaptation to a new technology partially relies on whether an apt metaphor can first orient the regulatory perspective, providing a basic frame for the problem, so that a combination of legislation and judicial interpretation can then fill-in more precise details. 

For example, there were the arguments in the 1990′s (and still today…) over whether the internet is more like a broadcast medium, a mail service, or phone service. In part, the regulation of activiities on the internet has been based on applying various metaphors to different fact patterns, trying to apply old rules and, with some new legislation and interpretation, make them do new tricks. Perhaps this is all that is needed and technology has not left law in the dust.

If that is the case, while battlefield robots may present some new risks, do they actually overturn IHL as we know it? (Similarly do some of the other topics mentioned in the links, such as the implications of DNA hacking, raze pre-existing rules?) Are these actually areas where many whole new areas of substantive rules are needed, or are these examples of areas where regulatory enforcement just got alot harder?

At least regarding IHL, is technological change affecting primarily the substance of law or the enforceability of law, or both equally?  I look forward to any comments from others in the Opinio Juris community…

Three quick updates from the “robots and warfare” side of things (largely culled from recent Danger Room posts that caught my eye and I wanted to point out to Opinio Juris readers).

I have previously posted about Big Dog, the four-legged beast of burden being developed for use by the U.S. military.  DARPA (the Defense Advanced Research Projects Agency) is now developing (along with Boston Dynamics) AlphaDog, the larger more advanced version of the robot. See this new video of AlphaDog walking around, carrying stuff. Getting closer to actual use in the field…

While the BigDog and AlphaDog videos are interesting for the weird, surreal sensation of watching something that sounds like a lawnmower but walks like a young horse, as a matter of international humanitarian law, they are probably not a big story in and of themselves in the same way that supply trucks are not a “big story” in regards to IHL. However, they do point to advances that may lead to new weapons systems at some point. Quadruped robotic hunters, perhaps running in packs, perhaps autonomous, have been hypothesized. I had previously referred to such robots using William Gibson’s term “slamhounds.” According to Danger Room, DARPA is now working to develop quadruped hunter robots, but is going for a different animal metaphor, calling the project “Cheetah.” Boston Dynamics, the developer of BigDog/ AphaDog, is running the Cheetah project.  Adam Rawnsley of Danger Room writes:

As the name implies, Cheetah is designed to be a four-legged robot with a flexible spine and articulated head (and potentially a tail) that runs faster than the fastest human. In addition to raw speed, Cheetah’s makers promise that it will have the agility to make tight turns so that it can “zigzag to chase and evade” and be able to stop on a dime.

This does have IHL implications.  Its not clear whether the cheetah-bot will be remotely-controlled, in which case the legal issues will be akin to those of UAV’s, or will detect, hunt, and possibly attack autonomously.  That latter issue brings up the knottier question of how you code IHL parameters into software and what types of liability ensues when something goes wrong.

But here’s the piece de resistance, DARPA has

allotted $7 million for a project titled “Avatar.” The project’s ultimate goal, not surprisingly, sounds a lot like the plot of the same-named (but much more expensive) flick.

According [to] the agency, “the Avatar program will develop interfaces and algorithms to enable a soldier to effectively partner with a semi-autonomous bi-pedal machine and allow it to act as the soldier’s surrogate.”

These robots should be smart and agile enough to do the dirty work of war, Darpa notes. That includes the “room clearing, sentry control [and] combat casualty recovery.” And all at the bidding of their human partner.

[Emphasis added.]

You can place a Terminator or Avatar joke here (two James Cameron movies, huh), but I think this is a better film metaphor (and it’s by “District 9 ” director Neill Blomkamp).

So, while these mecha-avatars will not be autonomous, they will be remotely-controlled armed bipedal drones. As a legal matter, one could say that this is similar to our current use of UAV’s.  But I don’t think so. These things would be interacting with humans in close-up situations (“room clearing”) but the operators, perhaps half a world away, would be physically and possibly emotionally removed from the situation.  Cues might be missed. How do instincts translate via a video-link?  The possibility for increased loss of life is very real. This is one development I will want to track.

Wired’s Danger Room has a new piece about law enforcement reform and efforts to stabilize Afghanistan. In particular, it focuses on the work of U.S. and Romanian Special Operations Forces in training Afghan law enforcement.

Behind the scenes across the embattled country, a special breed of U.S. soldier is working closely with a new style of Afghan police to enforce law and order in Afghanistan’s lawless countryside. They’re trying to defeat the insurgency by treating it like a criminal problem rather than a military one. And they’re planned to be at it even after the International Security Assistance Force’s conventional troops leave Afghanistan by the end of 2014.

In that sense, the trial was a possible preview of the Afghanistan War, post-2014. If the Laghman case is any indication, the conflict will be increasingly characterized by risky police raids, delicate legal action and small numbers of highly trained U.S. troops quietly applying pressure at key moments to ensure the rule of law triumphs over chaos.

It’s not so much that Afghanistan has transitioned into a post-conflict state. The issue seems to be whether the form of the conflict can somehow be shaped by the Afghan government (and our) responses to it. The article is less about the stuff that people often focus on when thinking about SpecOps, night raids, parachute jumps, and so on, and more about managerial, curricular, and training reform:

Tom — tall, lean, bald-headed, born in London, but raised in upstate New York — assumed responsibility for his then-20-strong Provincial Response Company in August. His first move: totally revamp the company, everything from its leadership and uniforms to the training syllabus the Afghan Ministry of Interior had provided them.

In reforming the Laghman special police all on their own, Tom and his fellow commandos might have broken a few rules. That’s not unusual. Special Forces are selected for their intelligence and initiative. Their bosses expect to abide by the spirit of the regulations rather than the letter. “I am given the autonomy to attack the problem as I see fit,” Tom says.

A 26-year-old Romanian officer attached to Tom’s team — let’s call him “Abel” — had spent several years teaching at the Romanian military academy before deploying to Afghanistan. One look at the Interior Ministry’s leadership curriculum, and Abel, a slight man with dark hair and a boyish face, knew he had to start from scratch with new lessons. The Interior Ministry stuff “didn’t look professional,” Abel says. The cops’ typical approach to solving problems: wing it, and hope for the best.

If the PRC were going to be able to execute warrants, gather evidence and help guide prosecutions, they needed to be capable of long-range planning. Abel started by charting out basic decision-making processes and writing lesson plans teaching each step.

Looking beyond the curriculum, Abel says he saw other leadership problems…

Check out the full post; it addresses issues ranging from training, to uniforms and status, to curriculum, to what happens when these new patrols actually “hit the streets,” and after. It is well worth the read.

Tomorrow, as part of its Leading Figures in International Dispute Resolution Series, the ASIL’s International Courts and Tribunals Interest Group (ICTIG) will host a talk by Meg Kinnear, Secretary General of the International Centre for Settlement of Investment Disputes (ICSID) to discuss the ICSID system for settling investor-state disputes.

The event details are as follows:

ASIL Headquarters, Tillar House
2223 Massachusetts Avenue, NW
Washington DC 20008
January 17, 2012
6:00 PM – 7:30 PM (Reception immediately following)

 You can register for the event via this page. Registration is free for ASIL Members and $20.00 for non-members.

The choice of book reviewer might be surprising but the result, unfortunately, is not.  Yoo reviews two books: David Scheffer’s memoir All the Missing Souls  and William Shawcross’ Justice and the Enemy. Scheffer’s book details his time working on war crimes issues, ultimately as the Ambassador at Large on War Crimes, in President Clinton’s State Department. (Disclosure: we hope to have Scheffer guest blog with us sometimes in the next couple of months about his book.) Shawcross’s book, as Yoo describes it, ”asks whether diplomats and specialists in international affairs, among whose number Mr. Scheffer must be counted, have any realistic alternative to the Bush administration’s strategy of using the military to detain, try or kill terrorists.”

OK, that’s a pretty provocative opening.  Yoo is an interesting choice to review a book on war crimes tribunals since his professional career has been about skepticism towards such tribunals. Hhe’s also an interesting choice to review a book about the Bush era policies that he played a part in defining. So, I thought’ I’d review his review, so to speak.

Aftert the shot-across-the-bow opening, Yoo has some eloquent passages (invoking Lincoln) and interesting observations about how interstate wars are decreasing but intrastate conflicts are becoming all the bloodier. As he starts in on Scheffer’s book, though, the critique is what you’d expect: an argument against the efficacy of international criminal tribunals.  Fair enough (although keep in mind  the book is billed as “a personal history” ). But then the review transforms and seems to be less and less about the books and more and more about the Bush administration (which Yoo was a part of).  And especially about how it was misunderstood. Yoo uses Shawcross’ arguments to criticize Scheffer and, implicitly, rehabilitate his own image. After indicting Scheffer for not doing enough to stop genocide in Rwanda, he goes on to write:

Mr. Scheffer tries to spice up this combination of diplomatic detail and depressing passivity with a stray attack on the Bush administration’s approach to world affairs after 9/11—the war on terror, as it was once known. With precious little analysis, he claims that the Bush administration destroyed America’s leading human-rights position, though naturally he fails to mention the Obama administration’s decision to continue, and even expand, many of the U.S. policies adopted in the wake of the attacks.

We get the sense that this review is most interested in going once more around the track on the Bush Administration’s record. By contrast to Scheffer,

Mr. Shawcross describes how left-wing groups, with the cooperation of gullible journalists, spread outright lies about conditions at Guantanamo Bay, about American detention and interrogation policy, and about the trials of terrorist leaders…

America’s response to 9/11 caused outrage among intellectuals precisely because it proved so successful: preventing further attacks on the United States, eliminating Osama bin Laden and the al Qaedaleadership, and beginning the overthrow of vicious authoritarian regimes in the Middle East. The Bush administration rejected the ineffectual internationalnetwork of activists, rights groups and courts in favor of a robust unilateral response that drew upon the traditional sources of state power, including diplomacy, economic sanctions and military force.

Funny thing is, I don’t know who supposedly argued that the U.S. must never act unilaterally or that force and sanctions are not key tools in statecraft. (I haven’t heard anyone make those claims.) That was not what the major Bush-era arguments were about. They were about torture and legal black holes and unilateralism for its own sake. They were also about recognizing the possibility that engaging (rather than running from) international institutions can actually broaden America’s options.  Addressing these actual issues might have made for an interesting essay.

Picking John Yoo to review a book about war crimes tribunals is a provocative choice. I wonder why the editors at the WSJ did it.  But the result was not so much thought-provoking as almost exactly what one would have expected. And that, as far as editorial decision-making goes, is an opportunity lost.