Rather than dwelling further on any prediction of what kind of opinion the Court is likely to produce following oral arguments in Kiobel (FWIW, I thought arguments went better for plaintiffs than I’d anticipated), I wanted to highlight what I thought was a particularly interesting exchange on whether the State Department’s views on the ATS were entitled to some deference by the Court.

Background first. I’d read the U.S. Government’s latest brief as arguing for something like a case-by-case approach on the question of which extraterritorial ATS cases might be appropriate for federal adjudication. In the U.S. view, Filartiga (involving Paraguayan parties disputing the legality of conduct in Paraguay) presents a paradigmatic example of the kind of ATS suit that would be permissible, while Kiobel (involving non-U.S. multinational parties disputing the legality of conduct in Nigeria) presents a contrary example. The distinction between the cases, on this view, seems to turn on a combination of factors, including, but not limited to, the defendant’s presence in the United States (favoring jurisdiction in Filartiga), and the nature of the claim of aiding and abetting a foreign sovereign (disfavoring jurisdiction in Kiobel). But central to the justification for all such distinctions, according to the argument, is the interest of the U.S. government in avoiding conflicts in foreign relations, and the superiority of the executive over the courts in any given case in identifying what those foreign relations conflicts might be. (Again FWIW, I didn’t have the impression from yesterday’s arguments that any justice much liked this position.)

So here’s the exchange that struck me (between the U.S. Solicitor General and Justice Scalia). (more…)

For those watching for signs of how oral arguments went in the U.S. Supreme Court in Kiobel this morning, early consensus seems to be that while a majority of the justices were plainly concerned by a reading of the universal jurisdiction statute that would give the courts the power to hear cases with no substantial connection to the United States, “a majority [also] did not seem inclined to narrow the Alien Tort Statute nearly into non-existence.” So writes the venerable Lyle Denniston over at Scotusblog. There may be quite a line-drawing exercise to come. More on the arguments here in a bit…

While it’s difficult at best to evaluate the truth of Iran’s claims about its weapons development, this latest story struck me as both plausible and relevant to the ongoing debate about international law rules governing targeted drone strikes.

“Iranian military leaders gave details of a new long-range drone and test fired four anti-ship missiles Tuesday in a prelude to upcoming naval war games planned in an apparent response to U.S.-led warship drills in the Persian Gulf. The show of Iranian military readiness and its latest tool – a domestically made drone capable of reaching Israel and most of the Middle East…. On Tuesday, Hajizadeh described the new drone as a key strategic additional to Iran’s military capabilities with the ability to carry out reconnaissance missions or be armed with “bombs and missiles.” Hajizadeh, who heads the Guard’s aerospace division, said the Shahed-129, or Witness-129, has a range of 2,000 kilometers (1,250 miles). That covers much of the Middle East including Israel and nearly doubles the range of previous drones produced by Iranian technicians, who have often relied on reverse engineering military hardware with the country under Western embargoes.”

It’s not news that the United States has been actively using armed force in Yemen for some time. The Bush Administration reportedly launched a first drone strike against alleged Al Qaeda targets in the country (with the Yemeni government’s cooperation) back in 2002, and of course multiple reports have described the Obama Administration’s use of drones in the country as well (this one among the more recent). But at some level, these strikes have been pitched – and are still usually reported – as one-offs. Yemen is named as among the handful of countries, along with Somalia, that has seen the occasional use of targeted strikes against individuals engaged in active plots against America and its interests. Nothing like the Iraq War. Nothing like the Afghanistan War.

As a few others have started to point out, that characterization is getting harder to see. Today brings news that Congress is considering a $75 million package of aid to Yemen’s counterterrorism forces, including $4.7 million so Yemen can have its own set of aerial surveillance drones, $8.6 million worth of up-armored Humvees, $15 million worth of weapons, and $1.5 million for the construction of two new Yemeni “expeditionary bases” in Aden and al-Anad. While standing alone, military aid to an ally (to the extent there’s a functioning government to support) hardly a war makes, the latest aid package doesn’t stand alone. Not long after the U.S. Defense Secretary and Chairman of the Joint Chiefs stated publicly that there “is no consideration of” sending American troops to the country, the Pentagon clarified (unsurprisingly) that there were indeed some Special Forces troops on the ground in country to help support Yemeni and U.S. targeting operations. In the past few months, the United States returned additional military advisers to Yemen to support the new government, and the President issued an unusual executive order that the White House described as “authorizing sanctions to be imposed on individuals and entities who threaten the peace, security, and stability of Yemen by disrupting the political transition” now underway. As the White House press release put it: “This Executive Order will allow the United States to take action against those who seek to undermine Yemen’s transition and the Yemeni peoples’ clear desire for change.” Meantime, the pace of U.S. bombing strikes in country (reportedly coordinated with the Yemeni government) appears to be accelerating amidst an increasingly bloody, multi-faction civil war, parties to which include, among others, the new Yemeni government and one faction supported by some version of a group lately associated with (what remains of) Al Qaeda.

In May, the New York Times quoted President Obama as having insisted to internal advisors: “We are not going to war with Yemen.” It may be the case that we are not at war “with Yemen.” But it’s getting tough to argue we’re not at war in Yemen. We are in what sounds an awful lot like a traditional, territory-specific, non-international armed conflict in which the United States has intervened on one side. The characterization of a conflict as an NIAC of course has legal consequences. (Among other things, at a minimum, the applicability of Common Article 3 to U.S. and Yemeni activities there.) Maybe more important in the near term, the characterization has political consequences that democracy is probably best served by acknowledging. By articulating the strategic costs and benefits, and making the case that the one outweighs the other. By explaining how such engagement is consistent with DOD budget cuts. By at least contemplating an end game.

Put it this way. It’s one thing politically to justify the targeting of a handful of Al Qaeda members before they can blow up a U.S.-bound plane. It’s another thing to say we’re embarking upon the third post-9/11 war of the millennium. I’d like to hear the argument on the Hill this week that the latter pitch is wrong.

The cover story in this month’s Atlantic magazine is an article by former U.S. State Department head of policy planning, former dean of Princeton’s Woodrow Wilson School for Public & International Affairs, former Harvard Law professor Anne-Marie Slaughter. Anne-Marie’s writings on international institutions and international networks are, I’m sure, known to many OJ readers. For this reason alone, I count the piece as fair fodder for our international law and policy blog.

The article, however, is not about international law or policy. Not per se. It is, I suppose, about some of the key jobs in the U.S. international security and foreign policy establishment. It is about her experience, to some extent, of her State Department job. But mostly, it’s about women in these, and other substantive, high-level, professional positions. And whether, and to what extent, it’s possible for women in such positions to “have it all” – that is, a fulfilling career and rich, involved family life. Her conclusion: Outside of academia, not so much.

The significance of the piece is not especially its insights about the difficulty of having both professional career and family life. There are other pieces about the dearth of women in leadership roles in the national security establishment (and at the most senior levels in a host of other professions). There are other pieces about the absurd way in which public school schedules still function as if it hadn’t been more than a decade since our society became one in which the majority of married couples with children have both parents working outside the home. There are other pieces recommending more flexible work places. There are many other pieces about the costs vs. benefits of motherhood earlier vs. later in life. One could go on.

The significance of this piece is its author. There’s a personal cost to writing from one’s personal experience. There’s a risk in engaging the personal as political. Anne-Marie Slaughter didn’t need to write a piece like this. But I’m grateful that she did.

The temptation is strong to write about the Supreme Court’s decisions this morning to deny review to the latest set of Guantanamo detainee cases to come before it. The denials of certiorari effectively let stand the decisions of the D.C. Circuit Court of Appeals, which has yet to find a detainee entitled to relief. But I’ll save the role of the courts discussion for a later post.

For now, I didn’t want to let go without comment the interesting set of commentaries that followed recent reports of President Obama’s intimate involvement in decisions about whom to target in U.S. global counterterrorism operations. David Luban’s thoughtful essay on the morality of targeted killing in the Boston Review last week is among the more balanced pieces I’ve come across on the topic, and unquestionably worth reading. Drawing on recent articles describing President Obama’s direct involvement in targeting decisions as informed in part by just war theory, Luban puts his finger on a truth about targeting that has largely been lost in the public debate: that targeted killing (by drones or otherwise) is sometimes moral (and legal) and sometimes not.

My one disappointment with David’s piece – and this is less a criticism of the piece than of his otherwise legitimate choice to focus on the moral substance of the law of war, rather than the applicability of that law per se – is that it felt like it was talking past one of the central sources of debate about contemporary targeting policy. Namely, that the legality (or not) of these operations turns in many (perhaps most) cases on one’s answer to the question whether an armed conflict exists within the meaning of international law. The Obama Administration, supported by authorizations by the U.S. Congress and interpretations by (at least) the federal courts of appeals, thinks there is a non-international armed conflict between the United States and Al Qaeda and “associated forces.” The rest of the world isn’t quite so sure, particularly when it comes to the still somewhat obscure definition of who counts as “associated forces.”…

Of all the items to capture blogospheric attention this Memorial Day weekend – one of the few times a year in the States when more than a handful of popular news outlets focus on what it means for our military and our country that we have been at war for more than a decade – MSNBC pundit Chris Hayes’ remarks on the nature of heroism seem to have risen to the top. Here’s Politico’s summary of the remarks, the backlash, and the subsequent apology; the actual 12-minute video clip of the conversation is here.

In essence, the controversy surrounds Hayes’ questioning of whether it was appropriate to use the word “heroes” to describe every member of the military who died in combat. The idea was inartfully expressed (and laden with caveats and hesitations), but it amounted to the notion that calling all members of the military heroes was a form of rhetoric that tended to obscure more complicated questions of the justness/unjustness of the particular war. Hayes’ idea was then embraced and expanded upon by the other pundits at his roundtable. Not so by the blogs.

Several things. First, Hayes deserves enormous credit for devoting his program to the wars and in particular their effects on veterans and their families. Immediately before the panel discussion, he interviewed US Marine Lt. Col. Steve Beck, one of the soldiers responsible for telling family members that their loved one had been killed. Immediately after the panel, he interviewed Mary Kirkland, whose son Army Specialist Derrick Kirkland was diagnosed with PTSD and committed suicide at age 23. Their stories are, of course, excruciating to hear – which may well be part of the reason why we don’t hear them often enough. Hayes was, it seems clear, trying to remedy the more typical lack of focus on these issues – made possible in part by what a tiny fraction of Americans it is who actually serve, and by the many ways (some of which I noted last week) in which the American public has become less able and less inclined to check the conduct of war.

Second, Hayes is hardly alone in wondering about whether the term “hero” is always the right one to use. Here, for example, is Iraq vet Phil Carter writing in the L.A. Times in 2006:

America’s deepening civil-military divide crystallized for me two weeks after I had returned from Iraq, while sitting at a Starbucks in the San Fernando Valley. I looked around the cafe and saw a dozen people ordering coffee, talking, reading and studying, while the baristas were busily serving drinks. All of a sudden, it hit me. Even though we are a nation at war, the war does not really seem to exist here in America. Frequently over the last two months, my friends have referred to me and other veterans of Iraq and Afghanistan as “heroes.” This has disturbed me a great deal, forming another sort of alienation that is likely to become particularly acute this Veterans Day. American society venerates all soldiers as heroes, yet we in the military reserve that label for those who truly go above and beyond the call of duty. To us, the ordinary soldiers who merely served in harm’s way, the label feels like a garish shirt — it neither describes us well nor fits us comfortably…. I judge myself by the code of a warrior. That ethos demands selfless service, not aggrandizement. It praises the team, not the individual. And it saves its highest accolades for those who distinguish themselves through extraordinary acts of valor. As veterans, we know the real heroes among us; many of them did not come home. Awarding this distinction to everyone cheapens the accomplishments of those who earned it — and makes the rest of us feel guilty that we have somehow stolen recognition from the worthy.

Which brings me to a final point for now. The Hayes discussion seemed ill-handled in a variety of ways. Among them, Lt. Col. Beck participated in the show (not the group discussion) by satellite. The only folks at the actual table talking about heroism were a group of journalists, none of whom were introduced as having any record of military service (or, oddly, much visible knowledge of military affairs). Is it possible to have a real conversation about civil-military affairs without a member of the military participating? Of course it’s possible. But I think such discussions are inevitably poorer – and predictably more alienating – for their exclusions. Still, however I might’ve designed the discussion differently, the worst outcome of all here would be not having such discussions at all. As Hayes and others have noted, the country has been living in remarkable silence about the wars this past decade. But inattention and best wishes have done us no favors. What they have done is left us with a nation in which 80% of us “support the troops.” And 90% of us are unable to locate Afghanistan on a map.

I’ll look forward to digesting today’s lengthy, front-page article along with my colleagues. In the meantime, one snippet:

It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.

This secret “nominations” process is an invention of the Obama administration, a grim debating society that vets the PowerPoint slides bearing the names, aliases and life stories of suspected members of Al Qaeda’s branch in Yemen or its allies in Somalia’s Shabab militia.

The video conferences are run by the Pentagon, which oversees strikes in those countries, and participants do not hesitate to call out a challenge, pressing for the evidence behind accusations of ties to Al Qaeda.

“What’s a Qaeda facilitator?” asked one participant, illustrating the spirit of the exchanges. “If I open a gate and you drive through it, am I a facilitator?” Given the contentious discussions, it can take five or six sessions for a name to be approved, and names go off the list if a suspect no longer appears to pose an imminent threat, the official said. A parallel, more cloistered selection process at the C.I.A. focuses largely on Pakistan, where that agency conducts strikes.

The nominations go to the White House, where by his own insistence and guided by Mr. Brennan, Mr. Obama must approve any name. He signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan — about a third of the total.

This is the second 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.

One of the many things I like about Professor Dickinson’s book is the broad approach it takes to thinking about accountability. When I ask my law students to engage in problem-solving hypotheticals – i.e. Here’s a problem in the world, you are X individual/organization/state worried about the problem, what should we do about it? – their initial instincts are to look to the courts. Who can we sue? For U.S. trained law students, whose first year of schooling is traditionally devoted entirely to learning the judicial processes of the common law, this is hardly surprising. But Professor Dickinson’s book helps us think more creatively, and demonstrates that accountability, in the sense of deterring undesirable conduct and demonstrating consequences for it when it happens, can be achieved through many tools. Indeed, for a setting as complex as the conduct of private security contractors – who straddle civil and military affairs, public and private interests, foreign and domestic settings – it would be surprising if any one accountability tool was sufficient.

Still, part of the challenge to finding solutions to the accountability gap she identifies in this special setting is, it seems to me, that contractor accountability is part of a larger problem of waning public accountability for national security and military affairs more generally. The problem is not unique to contractors. Take the possibility Professor Dickinson raises (and I suspect will address further) of subjecting civilian contractors to the Uniform Code of Military Justice. The UCMJ is the set of federal statutes establishing penal and disciplinary rules for dealing with misconduct by members of the U.S. military. As Professor Dickinson understands, the application of the military justice system to civilians raises a host of constitutional concerns, in particular the framers’ strong concern that military rule not be permitted to bleed over into civilian life. Beyond that, though, the UCMJ system through which soldiers might be held accountable for exactly the same kinds of conduct that most concern us about contractors is also fraught with problems. As Human Rights First reported back in 2006, efforts to prosecute soldiers responsible for the worst kind of detainee treatment, resulting in the death of detainees in custody, often foundered on just the kind of investigative and evidentiary issues that appear in the contractor setting as well.
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Remarkably big news week last week in U.S. law and security matters – alas one that happened to coincide with the final week of our law school semester. So with apologies for belatedness, I wanted to catch up on a few things I missed, starting with the military commission trial of some of the accused conspirators in the attacks of September 11. I have yet to read an account of the opening day that thought it went at all well. Andrew Cohen’s description at The Atlantic I thought was well done.

So a friend poses the question – given the defendants’ intransigence, their determination to be disruptive, defense counsel’s many objections, the extraordinary public attention, the widely known fact that defendant Khalid Sheik Mohammed was tortured, and so forth – would things really have gone any differently had this trial been in a regular criminal court in, say, New York City. It’s a good and fair question. And I think the answer is – yes, things likely would have gone differently. And it has nothing to do with the differences in commission vs. criminal court rules.

Criminal defendants act out and/or refuse to participate in their defense with some regularity. In Article III courts, as in the Southern District of New York, where the Administration once planned to pursue the prosecution, judges have, and regularly use, a range of lawful tools to keep order in the courtroom. Federal judges are able to do this because they are aware such tools are available; their experience tells them they can work; their sense of the judicial role includes an understanding that their job is in part to help ensure the smooth administration of the process; and their confidence in the judicial system – and their knowledge of the public’s at least general confidence in the system – makes it possible for the judges themselves to feel confident in their own power to exercise a reasonable, constrained degree of professional discretion. I cannot picture a 13-hour arraignment in SDNY.

The presiding judge in the military commission trial, Col. James Pohl, has, according to press accounts, presided over previous military trials. I can completely believe in Judge Pohl’s good faith, and even assume every decision he makes is within the letter of the law. And I still come away thinking this trial is a bad idea. The policy argument against military commissions – that they’d never be perceived as just/legitimate given their deeply troubled past – is not just an argument about what the rest of the world thinks. It’s an argument about how the knowledge/fear of that perception is likely to skew everything that happens inside the courtroom. Col. Pohl is as conscious of this as the rest of the courtroom players. They all share an inescapable handicap. They all have something to prove.

My earlier post on executive power generated some good, thoughtful comments. I wanted to highlight Charlie Savage’s in particular (he’s the author of the New York Times article I’d mentioned, please see his comment in the section below), and take a moment to offer a few thoughts in response.

Charlie’s concerns are basically twofold. The first is that I’m unfairly characterizing his article by suggesting that it seems to analogize Obama’s assertions of executive power to the claims of executive power made by the Bush Administration in the context of national security. He of course is right that his article at one point does note the important distinction between Bush’s claims and Obama’s. Despite this, Marty Lederman and the Times’ own Andrew Rosenthal and I all independently seemed to read the piece in much the same way – i.e. as suggesting that there was something comparable in Bush’s embrace of executive power and Obama’s, and that this might have something to do with national security. Why did I read it that way? I think it had to do with context and emphasis.

Here’s what I mean. Having read The Times (and other publications) on the topic of executive power in recent years, it seems to me difficult to compare the administrations’ respective approaches to executive power writ large while ignoring the context in which the comparison exists – i.e. a mammoth decade-long debate about executive power in national security. Neither the article’s headline nor the opening 8-9 paragraphs of the article do anything to suggest that by “executive power” the article intends to exclude or somehow except questions of national security from the general thesis that Obama had changed his views on executive power. On the contrary, the passage from the article that I quoted in my original post seemed to me to reinforce the idea. “As a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress…. But increasingly in recent months, the administration has been seeking ways to act without Congress.” My recollection of the campaign – admittedly far from perfect so I’ll welcome corrections on this account – is that Obama’s central criticism of Bush’s use of executive power was to do with Bush’s use of executive power in matters of national security. In particular, on the torture and surveillance issues Charlie’s article mentions. If I’m right about this (the nature of Obama’s campaign criticisms of Bush), and Charlie’s right that he didn’t mean to touch on executive power in matters of national security, then I’m not sure what relevance there is to mentioning Obama’s campaign criticisms of Bush in the article.

Which brings me to Charlie’s second concern – that I might have inadvertently linked to the wrong Lawfare post in referencing Jack Goldsmith’s take on the article. Actually, I linked to the Goldsmith post I intended – namely, Jack’s first post about the Savage article, which read in its entirety:

Charlie Savage has a story today about how the Obama administration, stymied in Congress and seeking ways to accomplish policy goals, has “increasingly in recent months . . . been seeking ways to act without Congress.” This was a predictable turn of events and one that, as Savage’s story notes, follows a standard historical pattern.

Jack writes of course for the Lawfare blog – a blog entirely devoted to questions of law and national security. Suggesting he seemed to think the article had some bearing on executive power in that realm as well. Indeed, he saw the article as supporting one of the central theses of his recent book (and regular public talks) – namely, that it is a standard historical pattern for presidents to seek to expand their power in matters of national security. It was this claim I was responding to – arguing that it was descriptively problematic – in the latter paragraphs of my earlier post.

So what would I have done differently? (I hesitate here, this is after all why I’m a law professor and not a journalist.) But I might have led the article with a sentence that made clear the very limited category of “executive power” the article actually engages. And as a reader, I might have been interested in a better historical understanding (by which I mean a quote from a campaign speech or platform or the like) of how Obama’s use of, say, executive actions involving administrative agencies, actually reflects a change in his views of power, rather than just a difference in tactical approaches pretty much every president has embraced once they’ve lost a majority of the Congress. I’m not sure the piece would have been quite as newsworthy so framed. But I guess I think it would have been clearer.

Charlie Savage’s odd article in yesterday’s New York Times prompted another exchange in the ongoing conversation about whether the Obama Administration’s assertions of executive power can be meaningfully distinguished from those of George W. Bush. Savage’s article is headlined in such a way, and otherwise seems to suggest that Obama’s recent reliance on executive orders to accomplish various policy changes (in, for example environmental regulation) is analogous to the Bush Administration’s claims that it could exercise executive power to change various policies and laws in the counterterrorism realm. (Savage writes, for example: “As a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress…. But increasingly in recent months, the administration has been seeking ways to act without Congress.”)

Marty Lederman does his usual lovely job at Balkinization of explaining why the equation of these practices as similar in their views of executive power is wrong. Critically, for example, the most troubling assertions of executive power in the Bush Administration – for example, the power to torture despite federal laws prohibiting it – were truly claims of unilateral authority. That is, the claim that the President could order torture even when Congress has said it’s illegal. The Savage article, in contrast, is almost entirely focused on Obama’s use of executive orders to carry into effect powers that Congress has delegated to the President to use. That is, essentially the opposite behavior.

Jack Goldsmith nonetheless views the Savage piece as fodder for his book’s claim that executive power invariably expands over time, and that while Obama maybe held back in his first few years in office, even Obama is now seeing the light, as it were. As I’ve written in some detail elsewhere, there are a set of ways in which the Obama Administration has recognized constraints on its power that the previous administration did not. Some examples. The Obama Administration’s early executive order on interrogation, still in effect, recognizes the binding applicability of Common Article 3; the Administration has argued that international law should inform the interpretation of its detention power (a view to which the D.C. Circuit has, remarkably, not deferred); the Administration won an amendment to the Military Commissions Act (MCA of 2009) entitling detainee-defendants to raise Geneva Convention-related defenses in the course of their trials (a set of claims the MCA of 2006 had barred); the State Department has announced an intent to seek to ratify Geneva Additional Protocol I. Perhaps most significant, though, the Congress has sought to impose remarkable constraints on the President – I’m not aware of any historical precedent – including the prohibition on transferring Gitmo detainees to the United States for prosecution. And the President has, in fact, complied with them.

None of this is to suggest I’m a fan of everything the administration has done in this realm, or even that it’s clear exactly what the President thinks is the scope of his power under Article II. (Here, for example, I raised questions about the scope of Article II power the Obama Administration is asserting in its targeted killing programs.) Rather, it’s to suggest that Jack’s descriptive claim that executive power simply and inevitably expands over time I think ignores the various ways in which that has not been true. If I were trying to describe what’s happened in the past four years, I’d say, more modestly, that sometimes, some executive powers expand, and sometimes, some others do not. Where does this get us? Well, at least to the point of asking a better question. Like why does power sometimes expand, and why, more interestingly, does it sometimes not?