Commentary on State Department Legal Adviser Brian Egan's speech has largely overlooked what Egan said, both explicitly and by omission, about the contours of the “unwilling or unable” test.
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Additional thoughts on Brian Egan's speech last week at the American Society of International Law.
State Department Legal Adviser Brian Egan's ASIL speech is materially different from the broad, unilateralist brush of the Bush doctrine of pre-emption and its associated policies of the non-application of the jus in bello and the global war on terror.
Senate Democrats have called for the rapid confirmation of several stalled Presidential nominees to important national security positions in light of the Paris attacks and the potential terrorist threat to the United States. Although this may strike Republicans as political opportunism, the Democrats are right. The Senate has been holding up several highly qualified and personally non-controversial nominees to critical national security jobs where they are needed.
Now that some of the dust has settled in the wake of the revelations about NSA and GCHQ surveillance of foreign leaders, it is a good time for the United States to engage in a bit of surveillance diplomacy. In other words, U.S. experts should be having conversations in public fora around the world about the who, what, and why of domestic and foreign electronic surveillance. Although not all of the ambiguity about U.S. law has been put to bed by the USA FREEDOM Act (see the ACLU's recently filed case here and the Second Circuit/FISC split here), the U.S. electronic surveillance landscape is now clearer. That means that the U.S. Government is in as good a position as it ever will be to discuss its surveillance laws and policies with foreign journalists, academics, think tanks, and other actors who influence public opinion.