General

Tactically Precise, Strategically Incontinent?

I think the Washington Post gets the right position on the utility and effectiveness of drones in targeted killing — including their limits.  The editorial principally addresses two different things, both raised in John Brennan’s summary statement of the administration’s counterterrorism policy at Harvard Law School a week ago.  The first is the question of whether there is a “legal geography of war,” as I have put it; the administration’s short answer, as is mine and the Post’s, is “no.”  The second is the question of whether drones, just as a strategic matter for the US (meaning, looking solely to US interests, rather than a universal moral or welfare-maximizing policy for everyone, all sides and all civilians), have knock-on bad effects that should put a damper on them. A few days ago I criticized the eminent columnist David Ignatius and his view that the US is “addicted” to drones.  His view is that the “blowback” effects of drone use can easily, and apparently already do, outweigh their utility to the United States, used to the extent we do today and propose to expand into the future — and that is so, he says, even though he concedes that they are indeed more precise and sparing of collateral damage.  I criticized that quite sharply — mostly because he then stops short, without telling us what the alternative is, except to launch fewer or no attacks.  After all, he doesn’t seem to want to urge that we launch attacks with less precise weaponry.  I guess I’d sum up Ignatius’ view — I think this is fair and a characterization he'd agree with, not snark — that he regards drones as tactically precise, strategically incontinent. (Update:  Chris got an excellent discussion of this going on his FB page; one of the comments is posted in the comments below, and I'm going to cut and paste the rest into the comments in the next day, in case anyone wants to follow that discussion or join in.  Thanks to Mark Shulman and Dan Goldfisher for taking time to respond, and I'll move their comments from FB here in the next day.)

Mark Kersten, Guest-Blogging

I am delighted to announce that Mark Kersten will be guest-blogging at Opinio Juris for the next two weeks.  Mark is the founder of the superb blog Justice in Conflict, which I've recommended before.  Here is his bio: Mark Kersten is a PhD student in International Relations at the London School of Economics and author of the blog Justice in Conflict....

News About Drones

There has been a flurry of news reports on drones in the last few days; let me crib from Lawfare’s collection of links:  “The U.S. is building secret drone bases in Africa and the Arabian Peninsula. Read Tim Mak’s report in the Politico here, the Washington Post’s coverage by Craig Whitlock and Greg Miller here, and the Telegraph’s Mike Pflanz’ story here.”  We can add the WSJ story, too, and video accompanying the story (the WSJ links require subscription).

Oral Argument in U.S.S. Nicholas Piracy Case

[Kevin Walsh is Assistant Professor of Law at the University of Richmond School of Law] The United States Court of Appeals for the Fourth Circuit heard arguments this week in the second of two pirate prosecutions in federal court in Norfolk, Virginia. The first appeal, which the court heard in the spring, has been held up on a procedural issue and...

What Are the U.S. Objections to the Law of the Sea Treaty?

International lawyers from outside the U.S. often wonder why exactly the U.S. has yet to join the UN Convention on the Law of the Sea. This is a good question, since most U.S. international lawyers support joining the treaty, they are not usually able to give a fair description of the basis for opposing the convention.  I am a squish...

Importance of the Brennan Speech (II)

The first part of John Brennan's speech, as I explain below, is an explication of the Administration's understanding of the U.S. armed conflict with al-Qaida and its co-belligerents, the legal constraints governing our use of force, and the self-imposed parameters of the government's use of force outside of "hot battlefields."  That is to say, it is a description of the...

Importance of the Brennan Speech (I)

In his speech last evening, Deputy National Security Advisor John Brennan clarified and strengthened a number of important points that the Obama Administration had previously articulated or suggested, and helpfully tied them together to provide a more comprehensive account of the President's counterterrorism approach, particularly with respect to the U.S. commitment, emphasized by Brennan, on adherence to the rule of...

John Brennan Speech on Obama Administration Antiterrorism Policies and Practices

John Brennan just finished delivering this speech at the Harvard Law School.  I believe it is the most comprehensive single statement of the Obama Administration's policies and practices with respect to al Qaeda and other terrorist threats.  There's a lot of material here that will be of interest to OJ readers.  I will use boldface to identify what seem to...

Victor Davis Hanson Reviews Cheney Memoirs

I believe I’ve now read most of the leading reviews of Cheney’s memoirs, though I am only partway through In My Time.  (Lawfare’s Rafaella Wakeman provides a helpful roundup of the reviews.)  Of the reviews, though appearing after Rafaella's roundup (so not included there), Victor Davis Hanson’s is the most interesting and worth reading (it is posted over at the Hoover Institution’s...

CIA Does Not Have to Respond to ACLU FOIA

The ruling by Judge Rosemary Collyer was not unexpected; it provides that the CIA does not have to release records related to its drone-targeted killing program, as sought by the ACLU in a Freedom of Information Act (FOIA) suit.  The opinion is here, and Politico gives a brief summary of it here (h/t Lawfare).  Politico’s Josh Gerstein sums it up:

Ruling in a Freedom of Information Act case brought by the American Civil Liberties Union, Judge Rosemary Collyer said records about the use of drones could be withheld under the rubric of “intelligence sources and methods.” She rejected the ACLU’s arguments that lethal drones aren’t really involved in acquiring intelligence. “At first blush, there is force to Plaintiffs’ argument that a ‘targeted-killing program is not an intelligence program’ in the most strict and traditional sense,” Collyer wrote, before concluding: “The Court has no reason to second-guess the CIA as to which programs that may or may not be of interest implicate the gathering of intelligence.”

Gerstein goes on to note that this ruling does not address other agencies of the government, such as State, which do not have these specific exemptions related to intelligence; without having done an exhaustive survey of FOIA cases, however, I would be surprised if something that the CIA could withhold on intelligence exemptions could be got sideways from other federal agencies.  Perhaps I'm wrong.

Was Dean Janet Levit’s Nomination Blocked Due to Her Views on International Law?

Apparently, Sen. Tom Coburn of Oklahoma is blocking the nomination of Dean Janet Levit, of University of Tulsa Law School, to the U.S. Court of Appeals for the Tenth Circuit.  The Daily Oklahoman reports: Oklahoma City attorney Mike Turpen, a longtime Democratic Party fundraiser with ties to the White House, said Coburn told him in July that Levit was not going to receive his...

Jennifer Daskal Reviews Michael Scharf and Paul Williams’ Book on the Office of Legal Adviser

Our esteemed guest blogger Michael Scharf and my Washington College of Law colleague Paul Williams brought out a very interesting volume from Cambridge UP last year, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser. Over at Lawfare, Jennifer Daskal, friend to many of us from her days at Human Rights...