For freedom to blaspheme and offend - thanks to whomever drew this cartoon

The Obama administration's contrasting on-defense, on-offense responses to terrorism

(Update: Since posting this, CSPAN has put up a link to DOS Legal Adviser Harold Koh’s ASIL-sponsored, informal public conversation with his predecessor, John Bellinger, on the question of the Obama administration’s approach to international law. My congratulations to everyone involved for putting on this novel and very illuminating event. I comment on it more extensively at Volokh. As I say at Volokh, I do not think one should over interpret what is said in an impromptu, unscripted event in which not every word is weighed up as a possible formal declaration of policy. However, Dean Koh does say several things about targeted killing; see my discussion at VC. My post below remains as incendiary as ever; I don’t think anything in that discussion alters my concerns about the US government’s general failure to articulate publicly the legal basis for its most effective “on offense” counterterrorism strategy, let alone address the many problems with its “on defense” policies. But I strongly recommend watching the Koh-Bellinger discussion, and again, my thanks to Harold Koh and John Bellinger for doing this kind of informal give and take for the public.)

This material is not going to make it into the final draft of a piece on Predator drone strikes, and it seemed to me perhaps too incendiary for either Opinio Juris or Volokh Conspiracy blogs, although maybe I will cross post there. The draft article from which this is extracted is about Predators, self-defense in international law and US domestic law, and reasons why the Obama administration is right to embrace targeted killing - but also needs to embrace the full legal rationales of self-defense that it requires. This extract is instead mostly about the contrasting failures of the administration’s “on-defense” counterterrorism responses. In particular, I think Republican conservatives are quite wrong to think that the Obama administration is either “soft” or “naive.” It is tough and sophisticated - and that has led it to frankly remarkable conclusions as to who can - to use the language of academic lawyers - most efficiently bear the costs of terrorism:

The United States is today in the peculiar position in which it has done better – innovated better, executed better – in counterterrorism “on-offense” than “on-defense.” Many things have gone flatfooted in US counterterrorism “on-defense.” Gone wrong, or never got going under the new administration, or simply stagnated in a bureaucratic morass – airport security, terror trials, interrogation, war versus law enforcement, and more. It is not, by the way, that the Obama administration is soft on terror. On the contrary, it is, if anything, even “harder,” more hard-headed and tough-minded than its predecessor.

Unfortunately, what its tough-minded, cost-benefit analysis seems to have told it is that indeed it needs to get tough – tough, however, on the American people. Tell the American public that the chances of dying in a terrorist attack (as liberal pundits are wont to point out because, one gathers, administration bean-counters, including John “Hey, 20% detainee recidivism is pretty darn good!” Brennan, have told them so) are less than the chances of getting hit by lightening or a drunk driver. Americans need to quit being such wimps and, if it comes to that, go down with the plane and take one for the team. Toughness on-defense counterterrorism for the Obama administration has meant getting tough, yes, but with the American people. Since Christmas Day, the administration has understood that is electoral suicide – but there is a big difference between policy undertaken from fear of electoral repercussion and policy undertaken because you actually believe it.

So score the Cheney team altogether as having maybe 10% of the administration’s most brilliant lawyers’ hyperactive neurons. But Cheney et al. had the advantage of the brutish, simplistic conviction that their problem, and their only problem, was to protect the American people from its enemies. Not to impose on it some exquisitely calibrated risk analysis. Cheney’s famous 1% doctrine is intellectually incoherent, as Sunstein has convincingly written. But as an operational doctrine, as a heuristic of execution rather than merely intellectual design, it recognizes that even if one does one’s damndest, something will still get through, which is why one does one’s damndest.

That’s a long ways from the current administration’s seeming view that whether one’s does one damndest or not, things will always get through - and learning to live with that is what passes as ‘social engineering’ in counterterrorism. As an exercise in risk analysis, it has the effect of passing the costs onto the American public, while telling the national security team that, whatever shit happens, they can feel good about themselves. This is the most sophisticated group of intellectuals in the history of government anywhere in the world when it comes to assessing risk. It is therefore doubly peculiar that the conclusion it seems to have drawn about protecting against terrorist risk is deeply fatalistic, as though one were betting ‘against the Gods’ - peculiar because, as the late Peter Bernstein noted in his masterwork on the intellectual history of risk, the point of risk analysis is to enable one to do just that. So which team would you rather have as your public security officials? The irrational security activists or the rational fatalists? The American public is not atavistic to prefer the former to the latter, even if the latter offers presumably a superior exercise in abstract risk analytics. I’m a fat tail, and so are you.

But if the Obama administration’s on-defense counterterrorism strategy is an intellectually superior, operational disaster, its on-offense strategy has been a completely different story. Predator drone strategy is something that has gone really, really well. “On-offense” counterterrorism has done better, ironically, under an administration that (let’s be honest) hoped it could just play counterterrorism on-defense, play for time, wind down wars, wind down “on-offense,” wish away the threat as a bad dream from the Bush years, while hoping the whole terrorism-counterterrorism meme would just fade away so it could focus on health care. Yet for all that, the Obama administration is playing effective hard-ass, hard-ball in counterterrorism on-offense. Through Predators, it is taking the fight to the enemy.

No matter what turn national security strategy in Afghanistan and Pakistan takes, or wherever else jihadist terrorist might regroup or form, drone strikes will be increasingly relied upon as a weapon. If the administration seriously doubles down on counterinsurgency in Afghanistan, UAV strikes against leadership hiding out in Pakistan becomes ever more important. That’s quite apart from attacking Pakistani Taliban intent on destabilizing Pakistan as well. On the other hand, if the administration moves to the “light footprint” that Vice-President Biden urged, or even exit from the ground war, UAVs become ever more crucial as the over-the-horizon mechanism for projecting discrete but implacable force. The same, but more so, in dealing with terrorist groups in other ungoverned places in the world.

Drones permit the US to go directly after terrorists, rather than having to fight through whole countries to reach them with boots on the ground – attacks directly against the terrorists and their leadership. Maybe that’s not enough to win. Maybe “light-footprint” counterterrorism via drones turns out to be the latest mistake in the perennial effort to find a way to win a war through strategic airpower. Yet even if the strategy is instead serious counterinsurgency on the ground (denial of the territory where the terrorists find safe-haven, rather than simply attacks against the terrorists) drones will still be increasingly important. Counterinsurgency strategy will still seek to attack terrorists directly even while clearing and holding territory. The upshot? No matter what direction the US moves strategically, drones will be an increasingly part of the “on-offense” part of that. This will become only more so over time, if the US gradually permits itself to develop and operationalize ever smaller, less detectable, more discriminate, more “sensor-laden,” and more individually lethal, remote-piloted UAVs.

So hooray for candidate Obama, and hooray for his administration. The Obama administration is right about this.

There is a lot of focus at this moment on the use of Predators in the Afghanistan offensive. Journalists seem to be discovering what they have not managed to discover in the Goldstone Report on Gaza, that, mirabile dictu, the insurgents use human shields, operate from mosques, and many other things that are encouraged by rules of war that put the legal and humanitarian burden onto one side. At this moment, the journalistic meme, focused on Our Brave Soldiers in the Field Under President Obama’s Good Faith Command, likes the idea of Predators and targeted killing. That is a swing back from where it was just a few weeks ago, as the journalistic herd scrambled to imitate Jane Mayer, and come up with pieces on the “rogue” CIA out assassinating everyone, including Americans, using Remote-Controlled Death From the Skies. The CIA is currently cool for having participated with Pakistan’s ISI to seize the Taliban number 2.

But journalistic sentiment will swing back again, particularly as the NGO community seeks to peel the CIA from the uniformed military in its use of drones and targeted killing. Even Vice-President Biden, preening over ‘taking the fight to Al Qaeda’ and beaming like a proud father over his flock of Predator gooselings, won’t stop the shift against the CIA using targeted killing. Meanwhile, one wonders if and when the administration’s senior transnationalist lawyers will come down from purely procedural, process-driven, abstract intellectual defenses of “multilateralism” and “engagement” and self-congratulation about the bodies it has joined - the UN HRC - and actually offer a legal defense of the administration’s actions in the field. A legal defense of actual actions, actual practices, with the breadth of legal defense that their full actual deployment requires. I wasn’t able to attend Harold Koh’s conversation with John Bellinger yesterday, but I understand John asked him about Predators. I am exceedingly curious, to say the least, as to the response. Without having seen the full videos of either Koh’s appearance or DOS international law counselor Sarah Cleveland’s UVA appearance, I can’t say for sure, but the initial reports seemed to suggest that the stance was one of saying that even a year in, it was still early innings, and not getting much more specific. That might be unfair and incorrect, and I’ll have to wait until the videos are available and will revise this as appropriate. But on initial take, well, much vision and much discussion about how long it takes to clean Augean stables - and my guess is that it will always be early innings, and it will always be vision but as little substance as possible.

So far, anyway, I would describe the defenses of actual practices that are seen by the administration as crucial to its national security strategy - targeted killings, using Predators or CIA teams or special forces or anything else, not just in zones of clear armed conflict, but elsewhere where safe havens are found - as missing. Not just anemic - but really not offered. When the legal defense is finally offered, I anticipate that it will be one based around an inadequate and narrow concept of combatancy and armed conflict, not self-defense of the kind that would go to the actual scope of what the US does, has always seen itself (and others) as entitled to do under international law, and will continue to do.

I draw a fairly simple conclusion from that. Leading lawyers in the administration appear to be acting as though this were going to be a one term administration. Their failure to offer a robust defense of targeted killing, to the full extent that it would almost certainly be contemplated by an administration planning on being around for another seven years, rather than three, suggests that they are hedging their bets and, in effect, offering a kind of private intrade-style prediction market for the inside players that they, and the President, will be back to being law professors sooner rather than later. In which case there is little point to offering the full range of legal defenses to the administration’s practices, if you anticipate being back in the NGO wing and going after a new, presumably Republican administration.

(Glenn, thanks very much for the Instalanche!)

Blogging at Volokh Conspiracy and Opinio Juris

In case anyone is looking for me, I'm blogging these days over Volokh Conspiracy and Opinio Juris.  I might occasionally stick up something here, but not very often.

Freely speculating on the future of the ATS in a multipolar world

Harvard Law School is hosting in a couple of weeks what is certain to be a very interesting small conference on the Alien Tort Statute. I was lucky enough to be one of the invitees, addressing the issue of corporate liability under the ATS. I address the issue of corporate liability under the ATS, but am actually interested in it from a broader perspective, the "jurisprudential" perspective on the distinct and sharply divided "communities of interpretive authority" over such issues in the ATS as the status of corporate liability. I have written elsewhere recently (in the European Journal of International Law; I think a link directly to the paper in this post here) of the "fragmentation of communities of interpretation and authority" in international law. The ATS seems to me to offer a striking example of that. (Cross posted at OJ and VC.)

Corporate liability can be thought of as a "hinge" issue in ATS jurisprudence - a "hinge" that under (an amalgamated reading of) current holdings serves to link "international law" to "domestic law," as required by the two parts of the ATS. I don't think it is at all a correct reading of either international law or domestic law, but it seems to me an (arguably) accurate reading (there are always variations and cross-currents) of current cases and their holdings on corporate liability, including, for example, the latest Talisman ruling from the Second Circuit.

In addition to that, however, I conclude the paper (this is still in first draft, believe me, and far from even going up on SSRN as a working draft) with a speculation about whether the case law developing around corporate liability in the ATS will remain stable in a world in which the US chooses decline and allows the emergence of a genuinely multipolar world, a world in which China is a much, much bigger player, as in creditor and debtor:

I do not think, however, that the final chapter has been written on corporate liability under the ATS. In the real world, I do not think that the pushback has begun to be felt in the US or in US courts. At that point, I suspect that some will wonder whether (from the standpoint of the 'progressive integrity' of international law, the perspective I am freely (and perhaps overly-imaginatively) attributing to a Professor Greenwood or Crawford on the basis of their Talisman declarations, not from a vastly more skeptical position such as my own) the jurisprudence of the ATS has not actually undermined a systematic development of international law norms with respect to civil liability, tort liability, corporate liability, and specific bodies of norms such as labor or the environment. The future historian of international law might well conclude that the era of ATS jurisprudence, far from advancing broadly shared norms, actually undermined the possibility of firmly enacting them, in what turned out to be a final gasp of US legal hegemony, before the Era of US Indebtedness, ‘Choosing Decline’, and Multipolarity set in.

What happens, for example, when ATS suits start to be brought against Chinese corporations, for actions having no connection to the US save for the ATS itself? For very, very serious, uncontestable even abuses of labor, land, environment and other things in, say, Africa. The strictly legal questions would have been long settled under the jurisprudence of the ATS in lawsuits against MNCs based out of the US itself, Europe, Canada, or elsewhere in the industrialized democratic world (and whether those countries liked it or not). What happens then? The US government has taken a remarkably hands off attitude toward such litigation, under presidents of both parties – offering statements of interest on occasion, but not typically seeking, on some principled basis, simply to nip such litigation in the bud, rigorously and in every case in which there is no greater traditional jurisdictional base of the United States apart from the ATS itself, as contrary to the foreign policy interests or prerogatives of the political branches.

Were China to weigh in, down the road, in a world of a debtor US, would the rules being made today remain stable? I have my doubts. I raise China as the most obvious real-politik example of a party that might have both the means and the inclination to make its displeasure known by rattling, even just a bit, the debtor’s chains in the global market of Treasury debt. What the might the US government, for example, say in a statement of interest to a court, in response to a court following well-established ATS precedents of corporate and secondary liability, but this time in a case against a Chinese corporation, in the world as newly defined by Secretary of State Clinton in one of her early statements – declining in particular to get too worked up about human rights as central to the US relationship with China?

The rules currently being evolved by US courts, departing from norms as understood by much of the rest of the world, seem to me rules of corporate liability made for a world in which the “universal” and the “international” can be imagined to be enacted through the ATS – mostly, however, because there is still an American hegemony. One can call that hegemony “universal” and “international,” I suppose – provided, however, that one cloisters oneself as strictly as possible within those particular communities of authoritative legal interpretation in which ‘universal’ and ‘hegemonic’ categories do not brush up against each other and catch each other out. Ironies and antinomies of the ATS - yet again.

The NYT CIA Assassination Story

I see that I'm quoted by Mark Mazetti and Scott Shane in their New York Times article today, CIA Had Plan to Assassinate Qaeda Leaders (July 13, 2009). I'm trying hard to maintain radio silence and not blog to let my shoulder heal up, but let me say something very brief about this. Also, I only post occasionally here - mostly I post these days at Volokh Conspiracy and Opinio Juris and CTLab.

First, I'm delighted, of course, that the CIA post 9-11 was formulating plans to try and kill Al Qaeda leaders wherever they might be; if they weren't, I would certainly have a big question about what exactly the CIA value-added to national security is. Why would you have a CIA if they weren't trying to figure out covert ops to kill Al Qaeda leaders after 9-11? As for the distinction between inserting small teams or using Predators, recall that the US only began using Predators as a weapons platform in a semi-improvised way after 9-11. The obvious tactic was small team insertion, and only when it became clear that Predators could work, did the US move to that strategy.

Second, as to the international law issues involved in targeting Al Qaeda leaders, I will simply refer you over to a new paper, soon to appear as a book chapter in a volume edited by Benjamin Wittes on reforming counterterrorism policy, on targeted killing. That paper has a particular point, however. It says that of course the US targeted killings of Al Qaeda terrorists is a legal act of self defense under international law. (You can get a free pdf download, here, at SSRN, "Targeted Killing in US Counterterrorism and Law.")

The longer term question to which the paper mostly addresses itself is whether, in the face of withering international legal criticism, from UN special rapporteurs, human rights groups, academics, etc. - what we might call the international "soft law" crowd - the US, and specifically the Obama administration, will insist on the traditional doctrines of self defense, including against terrorists who find safe haven in states that are unwilling or unable to deal with them. The problem specifically for the Obama administration is that on the one hand it has - correctly in my view, for strategic, legal, and humanitarian reasons - embraced targeted killings via Predator strikes.

On the other hand, a lot of the administration's international legal apparatus is highly sympathetic to the "soft law" position, and in other circumstances would like to embrace positions that, however noble in the abstract, would effectively rule out targeted killing as the US pursues them. And particularly rule them out in future situations in which Al Qaeda is not involved, in which there is no AUMF, no Security Council resolutions, etc., to point to. It is important for the administration to keep in mind that the US will eventually face different terrorist enemies - there is, so to speak, life - and death - after Al Qaeda.

The paper is concerned with defending the US legal space for targeted killing undertaken as self defense, but not within the context of an armed conflict as defined under international humanitarian law. If that seems like a mouthful, I'll just refer you to the paper.

Finally, the US domestic law question of assassination. The title of the article uses the word assassination. This is unfortunate, not because it is not accurate in the sense we ordinarily use the term, but because US law and regulation contains a ban on "assassination." Assassination in that specific legal sense is prohibited - but also not defined in US law or regulation. However, successive administrations dating from the 1980s have taken the position - e.g., the speech in 1989 to which the article refers - that a targeted killing is not (prohibited) "assassination" if it meets the requirements for self-defense under international law, including self defense against terrorists. As then-Dept of State legal advisor Abraham Sofaer put it, the assassination ban does not apply to otherwise "lawful killings undertaken in self defense against terrorists." I don't know if this is open access online; it was issued in the Military Law Review in 1989, and Judge Sofaer and others have told me that it was vetted with DOD and the White House as being US policy and interpretations of law. I am not aware of anything that has overturned it as US interpretation of the US assassination ban.

Okay, I'm trying very hard not to blog at the moment and give my should some time to heal, so I am going to post this up and ... Exeunt Left. Or possibly exit right.

My new EJIL article on the Rise of International Criminal Law

I have a new essay just published yesterday in the European Journal of International Law, titled (if link doesn't work and you still want the piece, email me and I'll send it that way):

The Rise of International Criminal Law: Intended and Unintended Consequences.
(EJIL, Vol. 20, No. 2, pp. 331-358, June 2009.)

EJIL is a subscriber wall Oxford UP journal, but I’m allowed to put up a link to the full text here on my personal website. If you’d like to read it, this link is supposed to work to the full text.

Abstract:

The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even ‘crowded’ other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.

I want to thank EJIL editor and old friend Joe Weiler for commissioning this essay - and then running it when it turned out to be a somewhat strange piece for EJIL. It draws on my personal experience regarding the early days of the then-proposed ICTY, among other things. It is a fast, impressionistic overview of ways in which the emerging system of tribunals might be thought to “crowd out” other parts of public international law. It ranges really, really widely, as the table of contents shows:

• Regimes of mutual benefit and regimes of altruism
• Alternative to intervention?
• Earning the moral right to administer universal justice
• Reprisal and reciprocity in the laws of armed conflict
• The rise of the machines
• Individual liability and the loss of the laws of war as rules for the social organization of war between groups
• Does anyone ‘own’ the rules of war anymore?
• An end-run around the P-5?
• Neglecting the UN?

Everything from battlefield robots to the P-5 ... no lack of topics here in a short space. Although I think it will drive some readers crazy, and for a good reason - it takes the punchbowl of each topic away just as the party gets going - I do like it, and I think once in a while it is useful to have a high altitude survey that seeks to reveal something about changes to the landscape below. That’s the intent, anyway.

Freedom in Iran

Here’s hoping liberty prevails in Teheran. (I've changed the color in minor gesture of solidarity.) I understand that from the White House's point of view, it's all ... complicated. Indeed it is. But how hard is it to say, the United States stands for, and stands with, liberty?

UN Collective Security and the US Security Guarantee ... my new CJIL paper at SSRN

The Chicago Journal of International Law has a new symposium issue coming out on the “multipolar” world and its implications for international law and institutions. I’m pleased to say I have an article in the issue, titled “United Nations Collective Security and the United States Security Guarantee: The Security Council as Talking Shop of the Nations,” 10 Chicago Int’l Law Journal 1 (June 2009) pp. 55-90. I’ve posted it up to SSRN at the link. Here is the abstract, in case anyone is interested:

This essay considers the respective roles of the United Nations and the United States in a world of rising multipolarity and rising new (or old) Great Powers. It asks why UN collective security as a concept persists, despite the well-known failures, both practical and theoretical, and why it remains anchored to the UN Security Council. The persistence is owed, according to the essay, to the fact of a parallel US security guarantee that offers much of the world (in descending degrees starting with NATO and close US allies such as Japan, but even extending to non-allies and even enemies who benefit from a loose US hegemony in the global commons such as freedom of the seas (leaving aside pirates)) important security benefits not otherwise easily obtained.

Much of the world can afford to pay lip service to UN collective security as an ideal, and to nourish it as a Platonic form, precisely because they do not have to depend upon it in fact. Not all the world falls within even the broadest conception of the US security umbrella, however, and these places include such locales as Darfur and other conflict zones in Africa. In those places, according to the paper, the US should engage with UN collective security to offer what the US will not, or cannot, offer directly.

The paper also argues that the Security Council should be understood, in a world of rising multipolarity especially, not as the "management committee of our fledgling collective security system," as Kofi Annan put it, or even as a concert of the Great Powers, but as simply the security talking shop of the Great Powers. Sometimes the Security Council can act as a collective security device, and sometimes as a concert of the Great Powers (e.g., the first Gulf War), but the condition of multipolarity argues that Great Powers are competitive and that the Security Council will find its limits, but also its role, mostly as the place for debate and argument, diplomacy successful or not - but not management of global security.

The essay also argues that those who want to see an end to loose US hegemony in favor of the supposed freedoms and sovereign equality of a multipolar world should think carefully about what they wish for. The dreams of global governance by international institutions turn out to have their greatest possibilities precisely in a world that, to a large extent, relies upon a parallel hegemon rather than collective institutions for its underlying order. In a multipolar, more competitive world, the winner is unlikely to be liberal internationalist global governance or UN Platonism or collective security, but instead the narrow, often directly commercial, interests of rising new powers such as China. The paper closes with policy advice to the United States on what it means and how it should - and should not - engage with the UN on security and the Security Council.

(The paper runs some 15,000 words and is part of a special symposium issue on a multipolar world.)

I should add that the paper also contains a substantial discussion of NATO and its relationship to the US security guarantee - with an emphasis on Raymond Aron, one of my intellectual heroes. The substance of the article figures into two chapters on security in my book on UN-US relations.

Jean-Marie's birthday

I fixed a turkey breast done in the slow cooker, very tender and juicy, and a bunch of vegetables grilled. The almond creme cake from the expensive baker was a disaster, though, with the crust ladened with enough salt to make us all gag. Anyway, Jean-Marie took this with her macbook built in camera.

Political restructuring of creditor rights - it's not just the interest rates

The point has been repeatedly and correctly made many times that the Obama administration’s political - ‘extralegal’? - pressures to force secured and senior creditors to take lesser positions than that to which they are otherwise legally entitled for the benefit of politically-favored labor unions has the effect, other things equal and most likely even other things not, of raising the interest rates that secured or senior creditors will charge similar unionized enterprises in the future.

What has been less discussed, at least so far as I‘ve seen, is the effect the administration’s moves will have on how bond covenants might be drafted into the future, in order to address the uncertainties created by these moves. For example, might we see a bond covenant in the future (analogous to existing and ubiquitous poison put provisions in favor of creditors) that would allow senior or secured creditors to put the bonds back to a corporate borrower, forcing repayment of principal plus interest, if unionization occurred at all or part of the corporation’s operations?

I can imagine litigation over the question of whether this would be a violation of unionization rights, but at first blush, it is a provision directed at the corporation, at a risk that the corporation might suffer, and the corporation’s own actions are not relevant to that risk. Why should the parties not be able to bargain in advance over who suffers the loss in the case of government interference in credit ordering? Or in the unionization that might lead to that kind of political risk? I suppose we might have a whole special section of covenants covering these risks, perhaps under the title, “Rule of Law Failure Risks” or “Favored Political Constituency Risks.”

There are lots of possibilities for covenants and other moves seeking to lessen the uncertainties. But they would have the effect of reducing the ultimate interest rate only insofar as they were taken seriously. That is, if the market did not believe that the covenants would be enforceable, because it did not trust the administration or the courts to enforce them, either those in particular or a more generalized belief that the rule of law had been impaired (imagine you are a foreign government thinking of investing in US corporate debt - is it conceivable, watching events, that you would not at a minimum think that legal rules in investor protection law had been at least somewhat impaired by these events?) then interest charged as a risk premium would not be reduced.

Tweenbots

I, for one, welcome our Tweenbot overlords! 

Sample questions from the AP Macro Exam

Via the great Greg Mankiw blog, this NYT interactive quiz - 19 sample questions from the AP macroecon exam. I got one wrong out of the 19 - but while embarrassing, I did think the question ambiguous as between short and long-run. It’s a fun quiz to take, as long as it’s not some three hour exam for real.

Bradley and Goldsmith in the WP on ATS cases, and my further question

(Cross posted with minor edits from Opinio Juris).

I am fundamentally in agreement with the Bradley-Goldsmith view as to why the Alien Tort Statute is a bad idea. I would simply repeal it as lacking connection to its original purpose and providing many perverse incentives, not to mention avenues of litigation open to aliens that are not open to US citizens.

However, I want to post up a related question. It is not so much about the ATS itself or its implications for US law or its politics. It is, rather, about the substance of the legal positions produced in ATS cases and the US-centric methods by which they are produced, and whether non-US international lawyers and legal scholars think that they are right as a matter of international law, the substance of international law.

As I point out in a short essay coming out soon in the European Journal of International Law that Joe Weiler was kind enough to solicit (adv.) (but it is certainly not an observation original with me):

Consider, for example, the very particular sub-community of interpretation of international law by US courts in Alien Tort Statute interpretation. Those courts (constantly citing to each other) have gradually built up a self-referential, hybrid jurisprudence of certain aspects of international criminal law – war crimes, crimes against humanity, and genocide, for example – together with other materials drawn from US civil and tort law, such as corporate liability, aiding and abetting, and similar doctrines. The individual terms of the Alien Tort Statute – “in violation of the law of nations or a treaty of the United States,” especially – create idiosyncratic pressures on interpretation. What is the ‘law of nations’ – for purposes of US jurisprudence, under US constitutional standards and current Supreme Court interpretation under the Sosa decision? Whatever exactly the ‘law of nations’ means as an international law term, it means something different in the hands of American courts that, under Sosa, are required to look not strictly to “traditional” international sources, such as those stated in the ICJ statute, nor strictly to such concepts as jus cogens – but instead, per Sosa, to a somewhat altered form of original meaning jurisprudence and what the drafters of the statute meant, or anyway what was meant in their times, along with some “fundamental” matters of the law of nations.

I do not mean to get hung up on differences among contested doctrines of US ‘originalism’ in interpretation - on the contrary, the fact that we might get hung up on such things tells you something about how distinctive this community of “international law” interpretation is. In other words, the jurisprudence of the US courts applying the ATS is not merely internationally agreed substantive international law plus some US civil litigation concepts to make the claim out in US tort terms such as enterprise liability. It is, instead, an interpretation of “international law” filtered through an ancient US statute, with US canons of constitutional interpretation applied to the meaning of the statute, Sosa atop of that (Sosa, while (predictably) not producing predictable outcomes, nonetheless introduces a distinctly US set of interpretive issues) and only by extension to the “international” law underlying it.

The whole process of interpretation, while fairly ordinary in US constitutional adjudication, must look slightly strange to international lawyers. The substantive results, especially as driven by the urgent, overriding, absolute need of plaintiffs to show a law of nations violation merely to get into US court, must start to look strange to those international lawyers as well. What does it mean when the function of the law of nations is to establish a threshold by which to get into court, rather than being the core issue of the litigation - litigation in tort, not a category of international law as such at all? Doesn’t this inevitably affect the way in which the law of nations is interpreted? I suspect – it is hard to get anyone to say much, frankly – that many non-American international law experts are, on the one hand, reassured to see American courts involve themselves with substantive international law, gradually drawing it into American jurisprudence and adjudication. On the other hand, I suspect many of them are also privately unhappy with the actual content of that law, thinking that it is evolving within its closed community in ways that are not consistent with the “authoritative” interpretation of international law in the international community and that are, in a word, weird. But who wants to be the non-American “international lawyer” to tell a US District Court that?

This is from the unedited draft; it will all be polished up in the final. But my basic question stands. I have had conversations with several prominent European legal scholars over the years who have expressed exactly such private reservations about the interpretive filter through which international law flows in ATS cases as well as private reservations about the substantive results. They also have never wanted to make such criticism publicly, because overall they favor American courts getting involved, presumably - the discussions didn’t go that far - because they hoped, as American transnationalists often hope, to use the American courts for (as John Bolton or I might put it) an end-run around the will of the American political branches.

But I would be exceedingly curious to know if there were discussion by non-American legal scholars of the process and substance of American ATS cases - whether favorably or unfavorably disposed. I have searched over the years, but don’t find so much - especially criticism of the kind that I have heard in private discussion. The closest things to criticism I can think of are the expert declarations offered a few years ago by Christopher Greenwood and James Crawford in Talisman in which there were at least some discreet, indirect criticisms offered of US court interpretations of international law. But I might be over-remembering.

So my question is, does anyone know of expert commentary by non-US international lawyers or scholars in this area? Either for or against the way in which US ATS litigation interprets as a matter of method as well as substantive conclusions of international law? I would be grateful if you could point me toward such commentary.

(I should add that I have occasionally done expert declaration work on ATS cases.)

NYT 'Room for Debate' blog on the torture memos and Obama rejecting CIA prosecutions

Over at the New York Times’s Room for Debate Blog, a discussion of the newly released Bush-era memos on torture and CIA interrogation, and the decision by the Obama administration not to seek prosecutions of CIA officers who relied on those memos and agency legal advice. Participants include David Cole, Michael Ratner, David Rivkin, Kori Schake, and me.

(And Glenn, thanks for the Instalanche for the NYT blog!)

Happy Easter

And death shall have no dominion.
Dead men naked they shall be one
With the man in the wind and the west moon;
When their bones are picked clean and the clean bones gone,
They shall have stars at elbow and foot;
Though they go mad they shall be sane,
Though they sink through the sea they shall rise again;
Though lovers be lost love shall not;
And death shall have no dominion.

And death shall have no dominion.
Under the windings of the sea
They lying long shall not die windily;
Twisting on racks when sinews give way,
Strapped to a wheel, yet they shall not break;
Faith in their hands shall snap in two,
And the unicorn evils run them through;
Split all ends up they shan't crack;
And death shall have no dominion.

And death shall have no dominion.
No more may gulls cry at their ears
Or waves break loud on the seashores;
Where blew a flower may a flower no more
Lift its head to the blows of the rain;
Though they be mad and dead as nails,
Heads of the characters hammer through daisies;
Break in the sun till the sun breaks down,
And death shall have no dominion.

(Dylan Thomas, Twenty-five Poems, 1936.)

"Critical Studies on Terrorism"

Oh dear, oh dear, oh dear. Thanks to Mike Innes over at CTLab, (where I’ve been blogging for the past week on robots and PW Singer’s Wired for War), this note on a journal devoted to “critical terrorism studies” and a review of the journal. Let me simply raid Mike:

In the latest issue of Studies in Conflict and Terrorism,  David Martin Jones (University of Queensland) and M.L.R. Smith (King's College London), write in "We're All Terrorists Now: Critical - Or Hypocritical - Studies "On" Terrorism", about the new school of "critical terrorism studies" based out of the University of Wales, Aberystwyth:

ABSTRACT: This article reviews the new journal Critical Studies on Terrorism. The fashionable approach that this journal adopts towards the contemporary phenomenon of terrorism maintains that a “critical” and “self-reflexive” approach to the study of terrorism reveals a variety of shortcomings in the discipline. These range from a distorting overidentification with the Western democratic state perspective on terrorism to a failure to empathize with the misunderstood, non-Western, “other.” This review examines whether the claims of the critical approach adds anything, other than pedantry and obscurity, to our understanding of the phenomenon. It concludes that it does not.

I was wondering when this might happen. The authors go on to describe the "congealed prose, obscure jargon, philosophical posturing, and concentrated anti-Western self-loathing that comprise the core of this journal’s first edition." Ouch. The article's behind a pay firewall, but here's the conclusion:

In the looking glass world of critical terror studies the conventional analysis of terrorism is ontologically challenged, lacks self-reflexivity, and is policy oriented. By contrast, critical theory’s ethicist, yet relativist, and deconstructive gaze reveals that we are all terrorists now and must empathize with those sub-state actors who have recourse to violence for whatever motive. Despite their intolerable othering by media and governments, terrorists are really no different from us. In fact, there is terror as the weapon of the weak and the far worse economic and coercive terror of the liberal state. Terrorists therefore deserve empathy and they must be discursively engaged.

At the core of this understanding sits a radical pacifism and an idealism that requires not the status quo but communication and “human emancipation.” Until this radical postnational utopia arrives both force and the discourse of evil must be abandoned and instead therapy and un-coerced conversation must be practiced. In the popular ABC drama Boston Legal Judge Brown perennially referred to the vague, irrelevant, jargon-ridden statements of lawyers as “jibber jabber.” The Aberystwyth-based school of critical internationalist utopianism that increasingly dominates the study of international relations in Britain and Australia has refined a higher order incoherence that may be termed Aber jabber. The pages of the journal of Critical Studies on Terrorism are its natural home.

Fred Siegel on the origins of American liberalism at Telos blog

Fred Siegel, the historian who wrote the biography of Rudy Giuliani a couple of years ago, has a post up at the blog of Telos, the journal of critical theory, titled "Taking Communism Away from the Communists: Origins of Modern American LIberalism."  

Fred is one of the clearest academic writers you can imagine, and this piece is a terrifically informative, well written discussion of the rise of modern American liberalism from an intellectual historian's view.  It's a terrific piece, and for readers who are suddenly trying to figure out how we got a social democrat or a socialist or something into the White House and what that means in the long view of American history, this is it.

If you are an intellectual, you really should subscribe to Telos! Very important reading!

Resolving the tension between liberal internationalism and the 'new liberal realism'

The Obama administration’s new foreign policy at this early point in time is mostly built around the proposition of ‘engagement’. As many folks have pointed out - long preceding the Obama administration - ‘engagement’ is a process, not a substantive policy or set of policy ends. It is an affect, not an outcome.

My now nearly completed book on UN-US relations, Returning to Earth, talks a lot about engagement - it seeks to offer policy heuristics for different types of activities of the US at the UN that would help the US figure out when, how, and with whom to engage - and when not. It seeks to break engagement out according to the kind of activity at the UN - security, development, values, governance, and give a better sense of what engagement can or should mean in each. It’s not particularly deep; it’s trying to offer a set of basic heuristics. But it means I have been thinking for the last several years about the nature of engagement - in large part trying to figure out what friends of mine, many of whom have now gone into the Obama administration foreign policy agencies, meant during the past five years when they kept decrying the supposed failure of the Bush administration to engage.

But the Obama administration’s foreign policy, when it comes to some deeper orientation than merely ‘engage, engage, engage’, seems to be oscillating between two poles - the traditional left-Democratic preference for idealism and global governance through liberal internationalism, on the one hand, and what I have called the ‘new liberal realism’, on the other. These are exemplified by the contrast between the nomination of Yale Dean Harold Koh, one of the leading American liberal internationalists of our time, as the new legal adviser to the State Department, and Hillary Clinton’s blunt, unapologetic, ‘new liberal realist’ de-coupling of China policy and human rights concerns. The administration’s policy of always engage with bad guys can be seen as having elements of each - a liberal internationalist impulse to reach out to everyone in an idealist hope of finding common ground, and a ‘new liberal realist’ claim that (contrary to the insistence on human rights principles of shaming and isolating bad human rights actors that liberals used to hold) the ones you most need to talk to are your enemies.

The engagement strategy thus waffles, depending on who it is trying to convince of its virtue, between the idealism of finding common ground (Iran in Afghanistan, for example) with bad guys who might be improved, and the realism of talking to bad guys because they are bad. The result is that the ‘engage’ switch is always on, and everyone knows it. Incentives here are thus a big problem - is it better to be a bad guy with whom the Obama administration is desperate to engage, or a close ally who therefore is just another of 190 or so countries?

The most important incentive created by the always- engage policy, however, probably turns out to be with respect to the United States, not its interlocutors. A policy of always-engage has a tendency to overpromise and overreach, because it turns out - surprise! - that we don’t actually have common ground or common interests, and administrations of the past were not wrong to have identified these guys as bad guys and enemies. So the United States, in order to preserve the always-engage strategy, merely becomes what everyone else is in these kind of failed cooperation games - an insincere promiser. Maybe that makes the US extra-super-cleverly realist, those wily new-liberal-realists outsmarting everyone - or maybe it just makes the US look weak.

Liberal internationalism, to draw on Francis Fukuyama’s useful characterization of various traditional US foreign policy approaches (liberal internationalism, realism, Jacksonian nationalism, and neoconservatism) seeks to transcend the power politics of the international state of nature and govern it through international institutions and law.

The ‘new liberal realism’ seeks to unshackle American liberals from the strictures of human rights idealism and allow them a liberal form of realism by which, above all, to claim to be able to defend US security: the new liberal realism began in the liberal backlash against neoconservative democratization idealism in the Iraq war, seeking a language that would permit containment, accommodation, and, now, dialogue and discussion with dictators, abusers, and enemies. Its initial impulse was negative -a reaction against neoconservatism, which then spread to a reaction against idealism and even against being limited too strictly by human rights concerns in foreign policy, and finally to today’s form of engagement with any bad actor. The new liberal realism sometimes talks of being Jacksonian liberalism, but its roots are far shallower than that - Scoop Jackson was never an appeaser, and anyway the new liberal realism was mostly an electoral drive in the Bush years to convince skeptical voters that they could be as tough on national security as the Republicans, although, weirdly enough, not by bringing the bad guys the blessings of international law and institutions, but instead by appeasing them. It’s a telling way of looking at the world - you look tough by skipping the liberal international emphasis on law and instead emphasize your toughness by going to the bad guys and ... proposing to give them things. It would be a good thing if there were a strand of liberal realism that really did arise out of the Scoop Jackson tradition - but this is not it. Whether in Obama or Hillary Clinton’s hands, it is an opportunism derived out of the belief that the Iraq war was lost - whoops, won - well, whatever, and a desire to convince voters that Democrats are not all liberal internationalists.

But now this tension between liberal internationalism and the new liberal realism. The natural question is to ask, well, who wins the policy struggle? One answer is to kick that can down the road by a procedural response - engage, engage, engage. There’s a certain common ground between the idealism and the realism. And in any case, it doesn’t mandate
a substantive answer. But at the end of the day, I suspect that there will be a certain division of labor between liberal internationalism and the new liberal realism. It is this - and I stress it is not a fixed or absolute divide, just a tendency and matter of degree:

The new liberal realism will mostly prevail in the international, global, and transborder world. It will govern security relations - after all, it began life as a language by which to talk tough on national security to American voters. But it will also increasingly govern American-global economic relations - above all, the relationship with that country that currently owns US government and GSE debt and that same country that the Obama administration desperately hopes will buy trillions and trillions and trillions more, even if backed by dollars the Fed just printed. Human rights in China is going to take even a more backseat than it has in the past. The new liberal realism will be strongest in governing things that are ‘out there’ in the world - not completely, but in many important matters, like China.

What about liberal internationalism? Well, crucially, it too will (perhaps, this whole discussion is nakedly speculative) have its chief sphere of influence - and that will be inside the United States, institutions and law within the United States. Liberal internationalism might find that its greatest influence is as a means of altering, not places like Iran or even Burma, but the legal system of the United States itself. It fits with a general liberal world view by some American liberals that the United States is a wicked place, a parochially wicked place, which stands in need of cleansing by the institutions of human rights and universal values. Among the impediments to that moral cleansing are institutions of domestic law, the doctrine of popular constitutional sovereignty, America’s appalling lack of deference toward international institutions and values and justice.

The Obama administration seems to me unlikely to permit US security policy abroad to be made or unmade by the Security Council, the UN, the ICC, or any other institution; indications are the administration is leaving those American decisions firmly in firmly realist American hands. But it will, in my estimation, assiduously compensate by bringing the international law agenda home domestically, and pursue the remaking of internal American institutions according to the demands of the ‘international community’. John Bolton is right in saying, as he has long said, that international law as it actually touches the United States internally is in considerable part, or at least the controversial parts, about various advocates, governmental, international organization, and NGO, dissatisfied with the outcomes of American democracy and looking for an end-run around them. International law provides a vehicle for doing just that.

And that, in the end, is likely where the project of liberal internationalism finds its greatest purchase in the Obama administration. Not in security policy abroad. But in bringing foreign law to US constitutional adjudication, importing a wider set of treaty obligations into US domestic law, allowing many more claims under malleable concepts of customary international law ... none of which will have any impact on Burma or US Predator campaigns in Pakistan or, curiously, even so very much on Guantanamo, where the administration’s hypocrisy is now pretty much complete. But it is intended, and in my view is likely to have, very important - and hard to roll back, once embedded in judicial and regulatory process over two presidential terms - consequences for the people of the United States and their relationship to the state.

A great impact of the State Department in an Obama administration, as foreign ministry of the United States, in other words, might well be not with respect to the people of Darfur, or Congo, or Venezuela, or Burma, or China, or Georgia, or Russia - but Americans. Am I alone in finding that a peculiar role for the foreign ministry of the United States? The foreign policy machinery of the United States is an ambassador of sorts - but rather than one who brings the American view to the world, might turn out to be as much or more committed to bringing the global view to the Americans - imposed with the force of a re-shaped domestic law via claims of international law. All this is speculative, of course. But it does not impossible that the State Department, in its actual performance, turns out to be not so good at getting Russia to do things, but quite good at getting US courts and bureaucrats to go along with telling Americans to do things in the name of America’s international obligations.

Liberal internationalists who are serious about their world view make no apology for it, don’t, and why should they? It is an honorable view, even if I find it profoundly wrong. Yet surely I am not alone in finding something weird about the result that liberal internationalism, at least given its tension with the new liberal realism, turns out mostly to be about ‘improving’ we, the people of the United States. At the end of the day, then, international law is likely to be, under the Obama administration, about re-making Americans and their (guilty, wicked, retrograde, ignoble, parochial, un-universal, unworthy) institutions, and about conveying to those same Americans that they were quite mistaken to believe that they, the people, were ever truly sovereign over them. Maybe of course I turn out to be wrong about all this - these are just speculations about a very young administration. But it is not exactly inconsistent with the rest of Obama administration’s agenda to re-define outwards the extent and power of the state.

(Let me be clear on one thing, though tangential to this post. I support Dean Koh’s nomination, because he is an honorable man of every conceivable qualification for his post, and his is an honorable philosophy of governance, even if not one I embrace, and even if I would oppose very large parts of it as proposals for policy or law. The president is entitled to his nominees, and Dean Koh ranks among the very best. The WP’s Who Runs Gov blog says, “many defenders of Koh have wondered who is going to ... defend Koh.” Ted Olson has, and while I’m not anyone’s idea of a big name, I’m happy to do so as a center right conservative. It doesn’t mean embracing his liberal internationalism - I don’t. But in considering his nomination, that’s not the point.)

(I’ll go back and add some links and clean this up later. Work-in-progress, and I might decide to take it down in order to rework it as a longer piece on Obama administration foreign policy. I have to get back to my outline for a book on systemic risk and the financial crisis.)

(Update: Eric Posner has an excellent discussion of these issues in relation to the debate over the Koh nomination, at Volokh Conspiracy, April 6, 2009, Monday. He says something like the same as I say here: Koh is “not a cosmopolitan who seeks to sacrifice American sovereignty to foreign gods. He is a liberal who wants to move American law to the left. International law served as a handy vehicle, to be used or ignored to the extent necessary to reach this goal.”

CTLab symposium on PW Singer Wired for War

Complex Terrain Laboratory is hosting an online discussion next week on PW Singer’s new book on robotics and war, Wired for War (starting Monday, March 30).  Singer is participating and, having read his opening post, it looks to be fascinating.  It is a terrific lineup of participants, including yours truly. Check it out!

Why targeted killing? And why is robotics so crucial an issue in targeted killing?

(Given the recent Obama administration review of the Predator campaign in Pakistan, I thought it would be a useful thing to put this discussion on the table.  Welcome Instapunditeers, and thanks Glenn for the Instalanche!  You might also want to check out the ComplexTerrainLab's discussion among academics of PW Singer's Wired for War, here.)

Why targeted killing? And why the insistence that it will increase in utility as it is partnered with high-technology, stand-off platforms such as Predator drone aircraft? Why the emphasis on targeted killings and robotics? There is a fundamental strategic rationale lying behind the policy trend.

The United States has found the limits of how extensively it can wage full-scale wars with its military; even if wanted to take on more wars, it has logistical and political limits. In addition, the United States has discovered that full-on war is useful principally against regimes. Full scale, large scale war of the kind waged in Afghanistan and Iraq is useful primarily for bringing down a regime that, for example, might harbor or support terrorists, or which might be believed to be willing to supply terrorists with materials for weapons of mass destruction (WMD). Full-scale war has a crucial strategic place in national counterterrorism policy, but by its nature that role is about states and regimes fundamentally.

Large-scale military operations are less useful directly against transnational terrorists, however, who are few in number, dispersed across populations and often borders, disinclined to fight direct battles, and more efficiently targeted through narrower means. The fundamental role of war in counterterrorism is to eliminate the regimes that provide safe haven to terrorist groups; terrorist groups can be strategically understood as an extreme version of a guerrilla organization engaged in a strategy of logistical raiding – in which civilian morale and resulting manipulation of political will is the logistical target. Logistical raiders typically need a safe base to which to retreat, and full-scale war is most useful in eliminating such safe bases and convincing other regimes not to provide them. But it is not usually an efficient way of going directly after transnational terrorist groups themselves.

Law enforcement utilized outside the United States, on the other hand, has also discovered its outer limits. Many debates are still to be had over the rights of alleged terrorists once in U.S. custody. Even so, whatever they are, few would argue that going out to ‘arrest’ terrorists in, for example, Pakistan’s tribal zones is a winning policy or a serious option. The same is true in Somalia and other places, and it will be true in other places in the world in the future.

Moreover, the political costs for any U.S. administration taking and holding detainees are now enormous. Once you hold them, over time they will likely be accorded quasi-Constitutional protections by the courts, at least some version of habeas corpus. Politically, the most powerful institutional incentive today is to kill rather than capture them. The intelligence losses of killing rather than capturing in order to interrogate them are great. But since the U.S. political and legal situation has made interrogation a questionable activity anyway, there is little reason to seek to capture rather than kill. And if one intends to kill, the incentive is to do so from a standoff position, because it removes messy questions of surrender.

All this speaks to the advantages to the U.S. government of targeted killing of terrorists or persons seriously believed to be terrorists, and it also speaks to the advantages to the US government from using stand-off robotics technology to perform these attacks. But the humanitarian advantages of ‘targeted’ killing are enormously important as well, and ought to be on the table. This is particularly so given that targeted killing has come in for a barrage of criticism, legal and ethical, much of which seems motivated by the fact that it can be more discriminate than full scale military assault; the fear seems to be that it makes violence too easy to undertake. The same criticism is offered of the evolution of robotic technology that increasingly allows targeted uses of force without having to risk one’s own personnel. Not using one’s own personnel allows a party to attack without the fear of counterassault that might increase the need to use greater amounts of force and cause greater collateral damage – but it also, so it is sometimes argued, thereby reduces the inhibitions on the decision to use force.

Why this should be a downside for US strategic counterterrorism policy is not entirely evident, but clearly some critics are disturbed by it. Much of the criticism amounts to a very contemporary restatement, aimed against the targeted killing that evolving robotic and surveillance technology might permit, of a very old argument against the idea itself of the introduction of humanitarian standards in conflict (one that stretches back at least to the founding of the International Committee of the Red Cross (ICRC)), that humanitarian standards by their promulgation would reduce the disincentives to war.

Whatever the critics say, however, is unlikely to sway US strategic policy, under the Obama administration or anyone else subsequently. The humanitarian benefits of precision targeting are far more obvious than the more remote and abstract suppositions of their humanitarian costs. Their direct policy consequence is to introduce greater discrimination in targeting than full-scale military assault and large-scale war permit, through targeted killing using high technology. There is a clear humanitarian advantage favoring the use of targeted killing over full-scale war. Advancing technology allows for more discrete surveillance and therefore more precise targeting that is finally better able to minimize collateral civilian damage.

The result is a strategic incentive for targeted killing, for Predator strikes, and for increasing the quality of technology to make targeted killings both more precision targeted and more standoff. Precision targeting and standoff delivery are each independently desirable and, in combination, considerably increase the incentive. The Obama policy team did not quite run on a policy of targeted killing – but it did run on a policy of taking the fight to Al-Qaeda in Pakistan in a targeted way.
The Obama administration is right about this – right about the logic that presses toward targeting standoff killing as a necessary and available and technologically advancing part of counterterrorism. It is also right about it as a moral and humanitarian proposition in the law and policy of the use of force. It is a conclusion that is correct as well as for foreseeable future administrations, even if administrations naturally prefer to couch it in softer terms.

None of this alters the equally impeccable strategic logic underlying the use of law enforcement mechanisms in some circumstances. Nor does it alter the logic behind other forms of intelligence activities such as surveillance or financial interdiction, or even the use of open, full-on war. The strategic logic for toppling a regime in pursuit of counterterrorism during the next ten or twelve years can by no means be ruled out. But these are not disjunctive policies. They all can and should work together. But targeted killing is likely to increase as a policy preference as full-scale wars decreases in number and intensity.

The paradox, however, is that although the strategic logic for targeted killing increases in persuasiveness, the legal space for it and the legal rationales on which it has been traditionally justified are shrinking. It has been shrinking in ways that might surprise members of Congress and the Obama administration. And it is at risk of shrinking still further through seemingly innocuous, unrelated legal policy actions that the Obama administration or Congress might be inclined to take in support of various political constituencies, usually related to broadly admirable goals of human rights and international law.

U.S. law, in domestic law since the original Cold War legislation establishing the CIA in 1947 at least, and in the US view of international law, accepts a legal, political, and policy space for the use of violence by political decision not in the course of large scale, open armed conflict governed by international humanitarian law, and not in the course of judicially supervised law enforcement operations, either. ‘Violence by political decision’, in peacetime outside of open armed conflict under international humanitarian law, was a space of activity accepted and considered vital to national security throughout the long decades of the Cold War. Only in certain narrow times and places was the decades-long conflict with the Soviet Union and its allies a ‘hot’ war, open and large-scale armed conflict, clashes of armies. Political violence in the Cold War was often covert, often denied, but it was authorized and endorsed by US domestic law, although it was frequently a violation of the law of states where such activity took place and unsurprisingly was sometimes, too, a source of grave diplomatic and other friction.

This category of force is an obvious means by which to confront non-state transnational terrorists outside the territorial United States. It is especially true outside the territory of states where effective mechanisms exist for arrest, detention, investigation, trial, and punishment, or alternatively extradition, of suspected terrorists. Regimes that have allied themselves to terrorist organizations – the Taliban in Afghanistan – might be toppled. Failed states might require large-scale military action in order to block the use of territory as a safe haven by terrorist groups. But as a strategic matter, actual attack on a physically small number of terrorists embedded among civilians is often best served by attacks made as physically precise and discrete as surveillance and targeting technology allow.