In association with the International Commission of Jurists

Author: Kenneth Anderson

25 Sep

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.)
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22 Sep

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).
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14 Sep

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...

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13 Sep

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.
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11 Sep

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...

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07 Sep

My bad for not mentioning this some time ago, but tomorrow, Thursday, 12 noon, we at Washington College of Law, American University, will have Michael Leiter, former director of the National Counterterrorism Center, as keynote speaker.  He will be followed by a panel that will include myself and my colleague Steve Vladeck — but more important than either Steve or...

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03 Sep

I wanted to flag for reader attention two articles in the Washington Post on the CIA and JSOC (Joint Special Operations Command), and their evolving roles as central counterterrorism fighters.  The first is by Greg Miller and Julie Tate, “Since Sept. 11, CIA’s focus has taken lethal turn,” September 2, 2011.  The second is by Dana Priest and William Arkin, “Top Secret America: A look at the military’s Joint Special Operations Command,” September 2, 2011, and adapted from Priest and Arkin’s new book, Top Secret America, which I look forward to reading. Over at Lawfare, Bobby Chesney talks about the first article, and some of the legal aspects raised or implied in the gradual integration of CIA operations with JSOC operations — what, referring to US law, is the interplay of “Title 10″ operations (military) with “Title 50″ operations (CIA).  As to the second article, on JSOC, speaking in my exceedingly august capacity as Lawfare’s book review editor, I plan to find someone knowledgeable in the relevant law and policy to review the full book, and I’ll let people know when that happens. My own interest in these topics — aside from drones and targeted killing — is somewhat related to Bobby’s detailed legal analysis of the separate domestic legal authorities under these different statutory provisions.  But it runs to a more broadly conceptual question, viz., whether there is, by implication, an emerging “law,” or at least “norms,” of the use of force in something that we can loosely call “covert action” but which is, in many circumstances, not truly covert, but instead at most “deniable.”  The distinction matters because countries traditionally have hid behind the covert nature of covert action as a way of not having to discuss whether there are any rules or standards, not necessarily and unlikely to be “international” in a formal legal sense, but still norms for the conduct of such operations — either because they were genuinely unknown to the public, or else because even if hinted at, they were sufficiently under wraps that deniability could be plausible.  At least plausible enough not to have to talk about its conduct. The emergence of targeted killing and drone warfare by the United States, and partly by Israel, has altered that.  These operations are at most thinly-deniable, not covert nor plausibly deniable.  They are denied (more exactly, “neither confirm nor deny”) with respect to Pakistan for purely political reasons, not because they could plausibly be denied.  In that case, however, the legitimacy of the operations, particularly with regards to how they are conducted, becomes an issue, as a political and legal issue.  I am all in favor of targeted killing and drone strikes against “covert” targets — places where conventional hostilities are not at that moment underway — and depending upon circumstances either as part of an armed conflict or else as “naked” self-defense.  Legitimacy requires — at least for Americans — some sense that there are rules and norms; not necessarily black and white, and certainly not a set of rules that might satisfy Human Rights Watch or the ACLU — but norms of some kind for the conduct of these operations.  I'd add as well that one way of approaching this in domestic law would be to amend Title 50 to distinguish "covert" from "deniable" in terms of oversight and other accountability, apart from standards for conduct. I'm also interested to see whether Bobby concludes that we need some kind of formal statutory reform to take account of integrated military and CIA operations. For these kinds of reasons, however, I am coming to think that the most important contribution that Harold Koh, as Legal Adviser to the State Department, and hence the legal voice of the United States on this matter, will turn out to have made to international jurisprudence, is his repeated assertion that the conduct of targeted killing  - whether with drones or human teams, whether by the CIA or by JSOC, and whether as part of an armed conflict or as “naked” self-defense — must still conform, as with any use of force, to norms in its conduct of necessity, distinction, and proportionality.  That, for the first time I am aware, constitutes an official assertion by a senior legal official of a leading state that even covert, unacknowledged force used by a state has conditions attached to its conduct.  Covert, or outside of an armed conflict, does not mean standardless in its conduct.  Because this kind of “covert” activity is widely known and merely deniable, and because it being widely known creates demands for legitimacy, and since legal legitimacy requires the acknowledgment of legal norms, even necessarily very general ones, the result is the gradual extension of conduct norms into covert activities.  
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02 Sep

John Bellinger writes at Lawfare on the 11th Circuit's dismissal of Alien Tort Statute claims against former senior Bolivian government officials.  (Jack Goldsmith served as defense co-counsel.)  This case (opinion) involves former government officials, and so does not raise perhaps the most hotly-contested issue in ATS litigation today, corporate liability, on which there is now a signficant circuit split.  However, I agree with John that the tone of the 11th Circuit opinion reflects something that Roger has mentioned here at OJ, a note of caution entering appellate decisions in ATS cases.
First, the Court shows considerable sensitivity (if not irritation) about being asked to judge security actions taken by foreign leaders, especially in this case where the leaders were “faced with thousands of people taking to the streets in opposition.”  Repeatedly invoking the Supreme Court’s call for caution in Sosa, the Court emphasizes that the ATS is “no license for judicial innovation” and that “judicial restraint is demanded.” Moreover, the Court observes that “We know and worry about the foreign policy implications of civil actions in federal courts against the leaders (even the former ones) of nations. And we accept that we must exercise particular caution when considering a claim that a former head of state acted unlawfully in governing his country’s own citizens.” Second, the Court also emphasizes that Iqbal requires not only specific factual allegations of misconduct but allegations of misconduct by the particular defendants.  “We do not accept that, even if some soldiers or policemen committed wrongful acts, present international law embraces strict liability akin to respondeat superior for national leaders at the top of the long chain of command in a case like this one.”
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29 Aug

(Shameless self-promotion alert!)  I have been meaning to mention a new essay of mine in a fine symposium issue of the Brooklyn Journal of International Law that came out a few weeks ago, 'Accountability' as 'Legitimacy': Global Governance, Global Civil Society, and the United Nations. I've linked to the SSRN page, but I see that all the articles from the symposium issue are up on Westlaw.  I've put the abstract below the fold, but I suppose I should say that not all my time is spent droning about drones ... accountability, legitimacy, and governance in international institutions and civil society are also big interests.  However, I want to emphasize the papers in the whole symposium issue (here is the link to the BJIL) - it was a wide-ranging and intellectually vigorous conference and the published papers are terrific.
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