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Liveblogging Session 5: “The Ethics and Law of International Counter-terrorism: The Challenges of the Next Ten Years”

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Saturday, September 17, 2011 at 2:03 PM

The afternoon session of Day 2 of the conference begins with introductory remarks from Gabby Blum, the moderator of the afternoon’s first panel.  She asks the panel to discuss the utility of force; what are the costs of engaging in intervention and counter-terrorism operations?  Is there an incentive to do more outside the borders so that we can be less coercive domestically?  If so, is this a fair trade-off?  She asks John Rizzo to address the “changing nature of war”: the increasing cooperation and joint activities of intelligence and military organizations.  Blum asks the panel to discuss international cooperation in U.S. operations abroad.  Finally,  she asks if we should care that other States do not share the doctrine of “unable and unwilling.”

Ken Anderson begins with what he calls “point zero.” He says the scariest graphic he’s seen in a long time is one by Julian Ku in Opinio Juris that shows what China sees as its sovereign territory in the South China Sea.  Anderson says we’re focused on the use of force by non-state actors, but we must keep in mind that conventional war between states has not disappeared, especially in the Asia-Pacific.

With respect to non-state actors, he says we will have to use force to address them in some circumstances.  But we’ve also concluded, that we need to be able to go after the non-state actor by taking down the regime that harbors them (e.g., Afghanistan).  He says we’ve learned a second thing: to engage in regime change, there must be a regime to engage in change.  But with many non-state actors, we’re dealing with non-governed spaces.  Indeed, he notes, there isn’t much government to go after.  These wars would turn into counter-insurgencies.  Anderson does not believe we’re interested in doing much of this for the next while.

In the narrow category of how we use force, Anderson says that we’re focused on counter-terrorism.  He states that technology has enabled more focused targeting but also the ability to “hop over” territory.  He notes that we think of drones as “roaming birds of prey” that occasionally strike swiftly.  But in reality, Anderson says, is that they’re more like aircraft off a carrier–they need an infrastructure to support them.  He adds that success has depended on the development of deep intelligence networks in Afghanistan and Pakistan.  Intelligence–HUMINT and SIGINT–has been key,  but it hasn’t been cheap or easy.

Anderson now switches to the ethics of the future use of force in counter-terrorism operations.  He sees more smaller, more targeted, more narrowly focused, but more intense–it’s “covert operations” in a colloquial sense.  He calls this “intelligence-driven uses of force.”  It might be a drone, but it might be a human team.  The ethical and legal issues are this: it has nothing to do with the debate between Johnson and Koh, but a higher level.

Anderson then speaks “in praise of Harold Koh,” which he notes might be surprising to some. He commends Koh for acknowledging these uses of force under domestic and international law and for making clear that there are standards that guide the use of force–necessity, distinction, and proportionality.  He says that the debate will focus on setting these standards out,  without really discussing specifics.  Anderson says this is law and policy mixed together.  He says that as this is asserted as state practice, many will see it as freeing the United States to do what it wants; but he thinks this will lead other states to believe that they’re accountable for their uses of covert force,  as the United States says it is.

Blum shares Anderson’s prediction that there will be fewer boots on the ground in the future.  She sees dangers here: there will be fewer domestic checks to engage in these operations, since there is less skin in the game for the people.  She adds that she thinks these developments encourage us to focus on the “destruction” side of intervention, rather than construction.

Anderson responds by saying that these kinds of uses of force will lead to more humanitarian interventions.  Libya, he says, provides the example.  He notes that this was immediately picked up upon by interventionists–they provide the ground forces, we provide the drones.  Anderson, however, believes that the drone tool is less useful for regime change,  which requires boots on the ground, and more useful  for counter-terror operations.

Blum next invites Stephen Carter to address the audience.  He begins with a few stories of a wartime presidents regarded as successful–first, Abraham Lincoln.  He notes that when Lincoln put together “colored units,” the South responded that it would execute any black soldiers found on the battlefield.  Lincoln came back and stated that the Union would execute a Southern soldier for each black soldier killed.  Though this was opposed to the usages and customs of war,  it was applauded in the North.

Next, Churchill at the Tehran Conference offered a list of war criminals who should be shot on sight.  Roosevelt thought it a good idea,  but Stalin thought the list should have “50,000″ names;  why stop at a few names?  FDR is said to have responded, “how about 49,000 names?”  Churchill  says in his memoirs that the problem was that “the public would not go for it.”  Carter says that Churchill did not raise any moral  or legal objections, but just a political one.

Carter says he raises this issue because we must always remember that when  we discuss the ethics and laws of war, there is also the practice of war. It has its own bureaucratic logic and drive and “necessity.” In war, crazy and terrible things happen; war is a crazy and terrible thing.  Carter believes we must begin with this baseline.

He says that as a theorist and ethicist of war, he finds the war on terror troubling; but as a practical matter, he understands it–the notion that we must get them before they get us.  But what about the problem when you use drones, there is no real ferment at home?   Carter states that when we don’t have boots on the ground, war is off the radar screen.  He says that in terms of proportionality and distinction, drone attacks are a net good.  But, Carter adds, the loss of political consciousness makes them an enormous problem.  In short, the moral problem of war is the killing, not the dying.  Carter says he’s not condemning all war–some wars must be fought.  But our moral vocabulary for discussing war is strained.  He says that what goes on in public is “partisan rant.”  This does a disservice to the discussion over war given its moral importance.

Carter next discusses just war theory, noting that a just war must have a reasonable chance of success. He supposes that we measure success by noting that attacks don’t happen.  But there must be a stopping point.  He notes that the older theorists (pre-Grotius) made clear that one side must know what they must do so that the other side will stop killing them.  But now, there is not a single entity; as a matter of ethics, it’s hard to conceptualize because we do not know what the “surrender point” is.  Carter says this is why the war relies so much on good intelligence.  But as the war shifts more and more to stand-off weapons, two things happen: it drops off our screen, and we’re asked to put more and more trust in the government that the attack was necessary.  This degree of trust is troubling, in Carter’s view.

Carter says another troubling point is that of self-defense itself.  He notes that Koh may have never said that this was “self-defense,” but that was the subtext. Carter notes that if rogue state X goes off and does something horrible and claims self-defense, it should be punished if it were not in self-defense.  This is not because we have a better legal argument, but because the United States is more powerful.  Carter then discusses how the United States remains the indispensable nation by discussing its contribution to the Libyan mission.  Given this, U.S. decisions over the use of force are the ones that matte the most–only the United States can project power over long distances for any length of time.  Indeed,  Carter says we have a special moral responsibility as citizens to take seriously these debates over war.  Only the United States can take actions such as regime change.

Blum says she’d like to ask the “Ben Wizner” question: she has struggled with the question of “what does victory look like?” She notes that no one thinks that the “war on crime” will ever end.  In addition, in regular war, we don’t really worry about killing the wrong people.  She asks if we didn’t try to fit the war on terror into the war paradigm, then would we have the same concerns?  What if we characterized it as extra-territorial policing?

Carter says that with respect to the early versions of just war theory, namely Aquinas, that it seemed clear, on his reading, that the war on terror would fit into the mold.  This had more to do with obeying on the command of the sovereign.

Next Sarah Cleveland addresses the audience. She says she’d like to flag eight trends that she sees in the international response to counter-terrorism over the next ten years.  Cleveland says that the 9/11 were a crime against humanity and a clear act of aggression; they demonstrate the existence of a kind of threat that we did not appreciate until they happened.  But the response also had harmful effects on our ability to respond going forward.

First, Cleveland notes that we do not live in a risk free world.  The answer is to cooperate and build rule of law institutions in those countries where terrorists might take root.

Second, cooperation is essential in the entire package of counter-terrorism.  We cannot do it alone; this has important implications for our options.

Third, torture is off the table. Countries will not cooperate with us if we use torture.  She says that the international community does not believe the law could not shift so far to permit torture.

Fourth, accountability issues will remain with us, internationally.  She notes the efforts in various European countries to prosecute various officials.  But they haven’t gotten far, because there is a good faith belief that the United States will deal with this issue itself.  She says that we must demonstrate to the international community that we have held ourselves accountable.

Fifth, she does not believe that ongoing law of war detention will be necessary going forward.  The impetuses that existed back in 2002 do not exist today.  Second, politics makes it impossible to ratchet down, especially in the detention debate.  Third,  there is little international support.  Fourth, the armed conflict model will be challenging to maintain.

Sixth, a mixed set of tools will be important going forward.  This is because we now understand that these actors sometimes engage in criminal activity,  sometimes in war-like activity.  One paradigm is not sufficient to respond.

Seventh, human rights law will be more integrated into conflict settings for three reasons.  One, there is a mixed nature of threat; these are non-state groups engaging in criminal and war-like activity far from a battlefield.  Second,  institutionally, the institutions that exist to oversee activities are human rights bodies; the ICRC opines,  but does not oversee. These bodies do not oversee IHL activities.  Questions that come up with be viewed through a human rights lens,  which could have a distorting effect.  Third, the Europeans are subject to a legal regime by which some of their human rights regime applies to some of their overseas military activities.  They must think before they cooperate with the United States to ensure that fundamental rights are not being abused.

Eighth, with respect to targeting, it’s the primary legal and ethical challenge. She asks what if other States have similar power; what standards would we want to apply?  Cleveland notes Brennan’s mentioning disagreement over the geographic scope of armed conflict; separately from this, there are ongoing challenges that remain with respect to how transparent states must be.  Concepts of imminence and necessity must be further defined.  And when, as a matter of law or policy, lethal  force should not be used.  Cleveland believes these are important challenges and that Brennan’s speech was a nod in the direction of thinking about these issues.

Blum wonders how much the United States should be worried about developments in European human rights law.  She says that the decision to abandon torture was not based on European opposition.  If European powers came up to the United States and stated their opposition to targeted killings, how much would that matter?

Cleveland says it’s hard to underestimate the impact on diplomatic relations that arise from a fundamental sense that the United States is not complying with international law.  She notes that there are disagreements over interpretations of international law.  But, but if the United States is cooperating with another country,  we’ll worry that the cooperation might result in human rights violations.  She thinks European countries will worry about this.

Rizzo jumps in and notes that many foreign governments–cooperating Western intelligence services–that cut off or restricted intelligence sharing with the United States.  So, these views did have an effect.  Rizzo notes that Cleveland’s words have some resonance.  But, on the other hand, Rizzo says that in the cynical  world of intelligence relationships,  some countries went to their Parliaments and promised that they would seek assurances from the United States that no coercive techniques were used to obtain intelligence that is shared with them. Privately,  however, they said “keep it coming.”

Next, Rizzo addresses the audience.  He says he will confine his remarks to looking forward.  Rizzo identifies a few important trends going forward.  First, Rizzo states that the Obama administration has largely continued the counter-terror policies of the Bush administration,  with the notable exception of the coercive interrogation programs of the CIA.  Rizzo does not see this diminishing in the future.

He says there is one area that has not gotten much attention, but will be important–what we call the “title 10 v. title 50″ dichotomy,  or clandestine military operations in contrast with covert operations.  Rizzo notes that for the CIA to engage in covert operations, there are numerous legal hoops through which it must jump.  He describes this as a very rigorous system.  But Rizzo says that he does not have the impression that there is the same level of high-level review within the Executive Branch over clandestine military activities or the same level of Congressional oversight.  He explains that covert action is covert action, regardless of who does it–though the CIA has been the only agency to do so, other agencies are not legislatively off the hook.  Rizzo believes this will only come to a head if something goes wrong and there is a post mortem.

Rizzo says that he sees an increased paramilitary role for the CIA in the future. He believes that this is risky path for the CIA.  He notes that paramilitary operations of any sort have tended to be long-running and have roped the CIA into controversies.

Rizzo then states that he agrees with a number of points made by Ben Wizner (hopefully not to Ben’s alarm). He believes that it is a travesty that no detainee in custody with 9/11 blood on his hands has been tried.  He believes that this is inexcusable.  In addition,  Rizzo says he’s always been a fan of Article III courts; in any of the most contentious cases, classified information has been endangered by the use of Article III courts.  Rizzo adds that the CIA was never asked its preference for Article III or military commissions.

Blum has two follow-ups. First, she asks, if the CIA were to have a drone program, what would be the reason to keep secret the processes and considerations used as part of this program ? Rizzo’s view is that there is no reason why the “process” could no be spelled out.  He believes it would give some reassurance to the public that these programs are conducted with extreme care; e.g., the approval chain, the measures taken to ensure minimal collateral damage, etc.

Second, she asks why additional CIA involvement will be more problematic?  Rizzo says his knowledge goes back to the late 1970s.  First, they’re not quick strikes–when  you get in,  you get sucked in.  It eats up money and resources to the detriment of other programs–especially core espionage and analysis functions.

Blum next invites the panelists to make remarks or pose questions.  Carter tells Rizzo that he has a short question.  He says that to the extent we’re going to rely on targeted attacks, we need good information.  He asks Rizzo what his general sense of how we’re doing there.  Are we getting good information?

Rizzo says he cannot speak to the current state of affairs, since he left in 2009. He says that the Obama administration has ramped up considerably these attacks.  But during his time,  the CIA was always punctilious about the information required to “select” an individual.  First: the person is an imminent threat.  Second: the person is who we think he is.

Cleveland takes umbrage with the characterization of Obama continuing Bush’s policies. She notes a number of policies that the Obama administration has diverged from; for example,  he closed the CIA black  sites, he’s supported greater habeas rights for Bagram detainees, to name a few.  But even for those policies that have continued, the legal justifications has changed.

Rizzo responds by discussing the state secrets privilege review process. He says the Administration has changed this process; but as far as the CIA was concerned, it was already following the practice set up by Obama.  Indeed, he said the CIA did not have to change any of its policies.

Prof. Rick Pildes asks a question regarding the “imminence” requirement in international law.  He says he understands imminence in the domestic context given the existence of a legal framework in the background.  But is imminence a legal restraint in the international context?  He says he does not understood the further justification of imminence.  If force is necessary if there is no other means to neutralize the threat, then why would imminence matter?  Is it deeply rooted?

Cleveland says it is–there is a UN prohibition on the use of force in the sovereign territory in another state, but there is an imminence exception. This is under self-defense. But under the law of armed conflict,  when you’re already at war, imminence has not traditionally been a requirement.  What Cleveland thinks she heard Brennan say was that there are circumstances in which the United States considers itself in an armed conflict, but its allies might not; our allies might think of it in a self-defense context.

Carter does not think the UN Charter is “deeply rooted” since it’s so young.  He discusses the Caroline incident (noting that Webster did not use the word “imminent”).  Imminence, Carter notes, is a constraint to prevent preventive war.  He says it’s a separate category of self-defense, but an important one.  He says this is Rome–si vis pacem, para bellum. You must stop the barbarians before they became powerful enough to attack Rome.  No attack on Rome was imminent, but they believed that the barbarians had the intent, but just lacked the power.

Next, a question from Sandy Levinson. He says he’s interested in discussing the morality of the Libyan intervention, namely the definition of hostilities.  Carter says that he did not find it plausible that “hostilities” required a threat to American lives.

Anderson says that the United States does not find itself out of the “imminence” world. Imminence would allow a strategic response–you could choose your moment to attack and would not leave the enemy with the initiative.

With that, Blum thanks the panelists and brings the session to an end.  The conference will resume at 3:50 PM.

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