Author: Kenneth Anderson

Human Rights Watch has released a new report (co-authored by the Harvard Law School Human Rights Clinic) on autonomous weapons systems that might emerge over the next several decades, titled "Losing Humanity: The Case Against Killer Robots."  The report calls for a multilateral treaty that would preemptively ban "development, production, and use" of fully autonomous weapons by all states.  It...

Pushback against weaponized drones and targeted killing, at least as undertaken by the United States, is increasing now that President Obama has been reelected, and presumably anti-drone campaigners are looking for ways to bring pressure on his administration's policies before they are set in strategic, operational, and logistical cement - as likely they would be after eight years under a Democratic administration. This NGO advocacy campaign has intense support among UN special rapporteurs - for counterterrorism and human rights, for example, and extrajudicial execution - as well as some, and perhaps considerable support among the US's European allies.  I've been meeting informally with various European government officials and diplomats who are trying to get a sense of the intersection of US government legal, policy, and strategic view. These European officials strike me as both circumspect and unhappy with the policy and legal rationales offered by the administration in its various speeches. The situation is complicated by the fact that the UN and our European allies - indeed, everyone with a defense budget to speak of - are acquiring drones (or at least seeking access to them, in the case of the UN), both surveillance drones and, at least in some cases, weaponized drones.  According to AFP, the UN is seeking surveillance drones to monitor the DR Congo-Rwanda conflict - the UN hopes that the United States or France, or perhaps other countries, will make them available:
UN officials stress that there could be no speedy deployment of drones in DR Congo as MONUSCO would need equipment and training. But it would be a major first in UN peacekeeping operations. A previous plan to get drones into DR Congo was dropped because of the cost, But the price of the technology has come down with so many countries now using unmanned planes for battlefield reconnaissance and espionage. "The UN has approached a number of countries, including the United States and France, about providing drones which could clearly play a valuable role monitoring the frontier," a UN diplomat said, on condition of anonymity." Clearly there will be political considerations though," the diplomat added. The UN plan is only to have surveillance drones, but the spying capability of the unmanned aerial vehicles worries a lot of countries.
France might be willing to do so, but it also has to consider other possible missions - such as a possible deployment of drones to support ECOWAS military action to oust Islamist insurgents who have seized territory in Mali.  But of course, these are all surveillance missions - not weaponized drones. Perhaps drone use by the UN or France or other NATO allies will remain purely as surveillance - but perhaps not.  In the hands of UN forces in DR Congo, maybe the drones will be surveillance UAVs only.  But France has not ruled out weaponized drones in Mali, so far as I know, if some intervention takes place, and I would be surprised (really surprised) if it did rule them out.  And there are good reasons to believe that if there were serious fighting by ground forces in Mali, the states supplying the troops fighting on the ground would demand that NATO countries supplying air assets use them in weaponized form to protect their ground troops.  (Greg McNeal also comments at his Forbes column.) 

The Washington Post has featured three major front-page stories on what they call "The Permanent War" - meaning the war on terror or however one might like to label it, as the US moves from Obama 1 to either an Obama 2 or a Romney administration - and administrations after that.  The first, by reporter Greg Miller, is headlined "U.S. Set to Keep Kill Lists for Years: ‘Disposition Matrix’ Secretly Crafted: Blueprint Would Guide Hunt for Terrorists" (October 23, 2012); Robert Chesney comments on it over at Lawfare.  The second article is a feature profile by Karen de Young of White House counterterrorism advisor John Brennan, "A CIA Veteran Transforms US Counterterrorism Policy" (October 24); Bobby and Jack Goldsmith each comment on it at Lawfare. The last in the series appeared on October 25, by Craig Whitlock, "Secret Ops Grow at U.S. Base: At Forefront of Drone Wars: $1.4 billion upgrade at Djibouti post planned." These are excellent, well-reported stories, and well worth reading to get a sense of the longer run trajectory of what might be called US "counterterrorism-on-offense." The larger issue raised by these three stories taken together is "institutional settlement" in counterterrorism policy.  The stories together are titled "The Permanent War," and they address war-making aspects of counterterrorism - the drone wars and targeted killing, forward bases for drones in increasingly far-flung places, and, though with much less discussion, military and intelligence advisors to local governments dealing with various non-state actor groups that have both domestic and transnational aspects.  (The three WaPo stories mostly don't deal with other large aspects of counterterrorism, such as domestic counterterrorism issues, or with detention or trial.)

Over at Lawfare, I've flagged a fine new article in the Military Law Review, "The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial," by Captain Brittany Warren (Vol. 212. 2012, p. 133; link goes to jagcnet.army.mil.) The article goes into fascinating detail about the actual facts and circumstances of Reid v. Covert, as well as a discussion of historical practices dating back to 17th century Britain and the application of the Articles of War to "camp followers."  It then comes back to the present to discuss the circumstances of civilians in courts-martial in US law. Let me add a comment that goes far afield of Captain Warren's article, but one raised in my mind by the detailed discussion she offers of the "murdering wives case" in its own context and time.  (I don't want to suggest that my discussion reflects her views in that article, so I've decided to make it a separate post here at OJ.)   Reid v. Covert is a case sometimes raised in a different context - one for which it is not really dead-on, however, though sometimes referenced in relation to it.  Reid is the question of the extraterritorial application of the US Constitution, and whether a civilian US citizen lawfully present on a US military base in time of peace, with a SOFA in operation (ie, 1950s Germany), is entitled to a regular US civilian trial with all Constitutional protections in a capital murder case rather than trial in military court under the UCMJ - answer, yes. But, if that's Reid, what about a US citizen who has fled the US to places not controlled in law or fact by the US, and is engaged in violent operations against the US from abroad as part of a terrorist group - is that US citizen nonetheless entitled to trial in a regular civilian court, or at least some form of judicial due process, and at least an implication that this US citizen can't be lethally targeted in the way that a non-citizen lawful target could be?

Aryeh Neier, recently retired president of the Open Society Institute (and former head of Human Rights Watch and the ACLU), has an opinion piece in Project Ricochet this week calling for a no-fly zone over Syria. He calls for it to be imposed by a regional force and NATO.  The US would not lead the effort, though presumably it would...

I realize this should have gone to our announcements section, but it seems well worth flagging.  As OJ readers are probably aware, the Kiobel case is being re-argued today in the Supreme Court.  Tomorrow my law school, Washington College of Law, American University, in DC, is holding a post-argument discussion with some stellar folks - Paul Hoffman (lead counsel for plaintiffs), Katie Redford (Earthrights International), John Bellinger (former DOS Legal Adviser and Arnold & Porter partner), and Andrew Grossman (Heritage Foundation).  WCL's own Steve Vladeck will moderate.  The event will also be live-streamed. Tuesday, October 2, 12-1:20, lunch included, and CLE credit available.  Registration required.  The flyer with online registration information is below the fold.

With UN meetings underway, here are a couple of links discussing leading issues on the table.  Everyone agrees that Syria leads the list, but pretty much everyone also agrees that it leads the list of things unlikely to be resolved or pushed materially to a resolution.  Neal MacFarquhar, the NYT UN correspondent, puts it this way in today's Times, quoting...

After a blogging hiatus over the summer due to some family medical issues - all happily resolved - I am moving back to posting on a regular basis. I've missed posting and hanging out with the OJ community online.  I've been only fitfully been following posts here, or for that matter most of the global news, and I've decided not...