General

BU Law School’s “Ten Years In” Conference

Congratulations to Professor Robert Sloane and BU Law School for a fine conference yesterday, “Ten Years In: Appraising the International Law of the ‘Long War’ in Afghanistan and Pakistan.” The conference was co-sponsored by the ASIL Lieber Society and the Naval War College. Update: Peter Margulies contributed a terrific summary of the panel sessions, posted here at Lawfare. The first panel addressed the future of COIN, and it included Professor Andrew Bacevich — not a lawyer, of course, and instead speaking as a well-known strategist, and lending an important interdisciplinary voice.  He offered a blistering critique of COIN (and pretty much every other strategic option as well, including counterterrorism via drones, I should add).  I was part of the second panel, on targeted killing and drones.  Michael Schmitt of the Naval War College offered a vigorous defense of drones as being essentially like any other weapon system, and on this occasion, at least, it was interesting to see how much agreement there was between him and Human Rights First’s Gabor Rona.

China’s Security Council Diplomacy

David Bosco, my American University colleague and author of the always interesting The Multilateralist blog at Foreign Policy, has posted an interview between him and Joel Wuthnow (Princeton’s China and the World Program) on China’s diplomacy at the UN Security Council.  Among many interesting exchanges, this comment on China’s overall role in the world: The mainstream thinking in Beijing is that China should avoid...

A Fair-Minded Non-American Legal Analysis of the Bin Laden Killing

I want to draw readers attention (if they haven't already seen it) to this excellent discussion of the international legality of the Bin Laden killing by Alon Margalit over at EJIL Talk!.  It is particularly instructive for Americans to get a better sense of the non-US views on the Bin Laden killing. It notes that the nearly uniform State support for...

Should the U.S. Offer Condolences for Drone Attacks?

Interesting story out of Charlotte, N.C. about the family of Samir Khan, one of the U.S. citizens killed in the drone attack on Awlaki last week. (h/t Michael Rubin) An official from the U.S. State Department has called the Charlotte family of al-Qaida propagandist Samir Khan to offer the government's condolences on his death in a U.S. drone attack last week...

A Response to Kevin Heller (Part 2)

In a prior post, I responded to some of Kevin Heller’s criticism of the professors' amicus brief recently filed in the Nestle ATS case.  Specifically, that post addressed issues arising from the Rome Statute of the International Criminal Court.  Here I’ll take up Kevin’s criticism based on rulings of the International Criminal Tribunal for the former Yugoslavia (ICTY). To frame the...

A Response to Kevin Heller on Doe v. Nestle

Thanks to Kevin Heller for his thoughts on the professors’ amicus brief in Doe v. Nestle USA, Inc., and to Opinio Juris for affording me this opportunity to respond.  I should say at the outset that I’m making this response only in my personal capacity, not on behalf of any litigant or amicus.  While I appreciate the passion Kevin brings to...

John Yoo Gives Partial Endorsement for Awlaki Memo

John Yoo, not surprisingly, has some thoughts on the leaked secret memo on Awlaki.(sorry forgot to link his full post earlier). Let’s give partial credit where it is due.  Apparently the Obama administration argues that al-Awlaki was a legitimate target because he is a member of an enemy engaged in hostile conduct against the United States.  At least Obama has figured...

UCLA Law Forum on the ICC – Prevention Discussion Topic

UCLA Law School's Sanela Daniela Jenkins Human Rights Project has a special joint online forum with the ICC office of the prosecutor, which is currently running commentary on the question of prevention, and how the ICC can maximize its crime prevention impact.  It features contributions from a variety of experts from a variety of perspectives - Tomer Broude, Bill Burke-White,...

How Lawyers are Ruining US CyberWar Defenses

Stewart Baker, former assistant secretary of Homeland Security during the Bush Administration, has this very powerful and clear explanation of how legal rules are weakening U.S. defenses against a cyber attack. Note the slam on using international law rules to regulate cyber war. (h/t Vincent Vitowsky). Across the federal government, lawyers are tying themselves in knots of legalese. Military lawyers are trying...

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...