legal restraints k

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Topicality

Restrictions are prohibitionsSchiedler-Brown 12Jean, Attorney, Jean Schiedler-Brown & Associates, Appellant Brief of Randall Kinchloe v. States Dept of Health, Washinton, !he"o#rt of Appeals of the State of Washinton, Division $, http%www.co#rts.wa.ovcontentBriefsA'$()(*++'Appellant+'Randall+'Kincheloe+s.pdf

/. !he ordinary definition ofthe ter0 1restrictions1 also does not incl#dethe reporting and

monitoring or supervising ter0s and conditions that are incl#ded in the +''$ Stip#lation. Blac23s 4aw

Dictionary, 3fifth edition,5$6 defines 1restriction1 as7A li0itationoften i0posedin a deed or lease respectin the#se to which the property 0ay 8e p#t. !he ter0 1restrict3 is also cross referenced with the ter0 1restrain.1 Restrain is defined as7 !o

li0it, confine, a8ride, narrow down, restrict, o8str#ct, i0pede, hinder, stay, destroy. To prohibit rom action 7 to p#tco0p#lsion on7 to restrict7 to hold or press 8ac2. !o 2eep in chec27 to hold 8ac2 fro0 actin, proceedin, or advancin, either 8y

physical or 0oral force, or 8y interposin o8stacle, to repress or s#ppress, to c#r8. 9n contrast, the ter0s 1s#pervise1 and1s#pervisor1 aredefined as7 !o haveeneral oversihtover, to s#perintend orto inspect. See S#pervisor. A s#rveyoror overseer. . . 9n a 8road sense, one havin a#thority over others, to s#perintend and direct. !he ter0 1s#pervisor1 0eans anindivid#al havin a#thority, in the interest of the e0ployer, to hire, transfer, s#spend, layoff, recall, pro0ote, dischare, assin,reward, or discipline other e0ployees, or responsi8ility to direct the0, or to ad:#st their rievances, or effectively to reco00ends#ch action, if in connection with the foreoin the e;ercise of s#ch a#thority is not of a 0erely ro#tine or clerical nat#re, 8#t

re


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*

$egal restraints motivated by conlict narratives cause endlessintervention and +, warareJohn ,orrissey, 4ect#rer in >olitical and "#lt#ral ?eoraphy, @ational niversity of9reland, ?alway7 has held visitin research fellowships at niversity "ollee "or2, "ity

niversity of @ew or2, Cirinia !ech and the niversity of "a08ride. +'11, 4i8eral 4awfareand Biopolitics% S J#ridical Warfare in the War on !error,E ?eopolitics, Col#0e $(, 9ss#e +,+'$$

9n the F8iopolitical no0osG of ca0ps and prisons in the =iddle ast and elsewhere, 0anaindetainees is an i0portant ele0ent of the S 0ilitary pro:ect. As "@!"I= "o00ander?eneral John A8iaid 0ade clear to the Senate Ar0ed Services "o00ittee in +''(, anessential part of o#r co08at operations in 8oth 9ra< and Afhanistan entails the need to detain

ene0y co08atants and terroristsE.$$ However, it is a 0ista2e to characterie as Fe;ceptionalGthe S 0ilitaryGs 8roader8iopolitical pro:ect in the war on terror. Both =incaGs and Aa08enGse0phasis on the notion of Fe;ceptionG is 0ost convincin when el#cidatin how the S 0ilitaryhas dealt with the FthreatG of ene0y co08atants, rather than how it has planned for, leallysec#ritied and enacted, its FownG aression aainst the0. 9t does not acco#nt for the

proactive .uridical warare of the S 0ilitary in its forward deploy0ent throughout the

globe , which rioro#sly sec#res classified SILAs with host nations and protects its ar0ed

personnel fro0 transfer to the 9nternational "ri0inal "o#rt. Lar fro0 desinatin a Fspace of

e;ceptionG, the S does this to establish normative parameters in its e/ercise o legally

sanctioned military violence and to ma/imi0e its operational capacities o

securiti0ation G.A 8ier


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!he S 0ilitaryGs li8eral lawfare reveals how the rule o law is simply anothersecuriti0ation tactic in liberalisms pursuit o security 5a p#rs#it that parado;icallyeli0inates f#nda0ental rihts and freedo0s in the Fna0e of sec#rityG.$$ !his is a Fli8eralis0Gdefined 8y what =ichael Dillon and J#lian Reid see as a co00it0ent to wain F8iopolitical

warG for the sec#ritiation of life N F (illing to ma(e live .$+' And for =ar2 @eocleo#s,

5neo6li8eralis0Gs fetishiation of Fsec#rityG % as both a discourse and a techni)ue o

governmentN has res#lted in a world defined 8y anti-democratic technologies o

power .$+$ 9n the case of the S 0ilitaryGs forward deploy0ent on the frontiers of the war on

terror N and its :#ridical tactics to sec#re 8iopolitical power thereat N this has 8een madepossible by constant reerence to a neoliberal pro.ect o security reistered in alan#ae of Fendless e0erencyG to Fsec#reG the eopolitical and eoecono0ic oals of S foreinpolicy.$++ !he S 0ilitaryGs contin#o#s and indeed rowin 0ilitary footprint in the =iddle

ast and elsewhere can 8e read as a F permanent emergency ,$+/ the new Fnor0alG in which

eopolitical 0ilitary interventionism and its conco0itant 8iopolitical technoloies of power

are necessitated 8y the perennial political econo0ic F need to securiti0e volatility and

threat .

"oncl#sion% ena8lin 8iopolitical power in the ae of sec#ritiation4aw and force flow into one another. We 0a2e war in the shadow of law, and law in the shadowof forceE N David Kennedy, If War and 4aw $+*"an a foc#s on lawfare and 8iopolitics help #s to criti)ue our contemporary momentsprolieration o practices o securiti0ationN practices that appear to 8e pri0arilyconcerned with codin,


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national security conceived in ter0s of Fglobal governmentality.$+ 9n the S lo8alwar on terror, it is lawfare that facilitates what Lo#ca#lt calls the 8iopolitics of sec#rityE N whenlife itself 8eco0es the o8:ect of sec#rityE.$/' Lor the S 0ilitary, this involves the eli0inatinof threats to FlifeG, the creatin of operational capa8ilities to F0a2e liveG and the anticipatin and0anae0ent of lifeGs #ncertain Ff#t#reG.So0e of the 0ost 2ey contri8#tions across the social sciences and h#0anities in recent years

have div#led how disco#rses of Fsec#rityG, FprecarityG and Fris2G unction centrally in the

governing dispositis of o#r conte0porary world.$/$ 9n a society of 5in6sec#rity, s#ch

discourses have a proound power to invo2e daner as re


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2now that the =adisonians are not who they pretend to 8e. While the p#8licGs #nfa0iliarity withnational sec#rity 0atters has no do#8t hastened the !r#0anitesG rise, too many people willsoon be too savvy to be misled by the=adisonianveneer,$' and those people often areopinion leaders whose infl#ence on p#8lic opinion is disproportionate to their n#08ers. !here isno point in tellin host stories, Hol0es said, if people do not 8elieve in hosts.$$9t 0iht 8e s#pposed at this point that the pheno0enon of do#8le overn0ent is nothin new.

Anyone fa0iliar with the 0anae0ent of the Cietna0 War $+ or the #n-2illa8le AB= prora0$/ 2nows that do#8le overn0ent has 8een aro#nd for a while. Ither real0s of law, policy, and

8#siness also have co0e to 8e do0inated 8y specialists , 0ade necessary and e0powered 8yever-increasin divisions of la8or7 is not national sec#rity d#ality 0erely a conte0porary0anifestation of the challene lon posed to de0ocracy 8y the ad0inistrative state-c#0-technocracyM$ Why is national sec#rity differentM!here is validity to this int#ition and no dearth of e;a0ples of the fr#stration confronted 8y=adisonians who are left to shr# their sho#lders when presented with co0ple; policy options,the desira8ility of which cannot 8e assessed witho#t hih levels of technical e;pertise.9nternational trade iss#es, for e;a0ple, t#rn fre


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investiative.ournalists conront a high wall o secrecy7 =inding and co00#nicatinwith 5on deep 8ac2ro#nd, of co#rse6 a (nowledgeable8 candid sourcewithin an opaost ran twenty seven editorials in favor of the war alon with doens of op-ed pieces, with onlya few fro0 s2eptics.++ !he @ew or2 !i0es, !i0e, @ewswee2, the 4os Aneles !#nes, and the

Wall Street Jo#rnal all 0arched alon in loc2step.+/ As Senator #ene =c"arthy aptly p#t it,reporters are li2e 8lac28irds7 when one flies off the telephone wire, they all fly off.+*=ore i0portantly, the pre0iseOthat a viilant electorate f#eled 8y a s2eptical press toether

will s#ccessf#lly fill the void created 8y the hollowed-o#t =adisonian instit#tionsOis wron.+!his pre0ise s#pposes that those o#tside constraints operate independently, that their efficacyis not a f#nction of the efficacy of internal, =adisonian chec2s.+( B#t the internal and e;ternal

chec2s are woven toether and depend #pon one another.+ @on-disclos#re aree0ents5J#dicially-enforced a orders, in tr#th6 are prevalent a0on those 8est positioned tocriticie+) Heihtened efforts have 8een #nderta2en to cr#sh vioro#s investiative :o#rnalis0and to prosec#te and h#0iliate whistle8lowers and to e


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s#fficiently viilant =adisonian s#rroates will so0ehow 8e incl#ded in the national sec#ritydecision0a2in process to ens#re that the !r#0anite networ2 is inf#sed with the riht val#es.!hose who 8elieve that do not #nderstand why that networ2 was for0ed, how it operates, or

why it s#rvives. !hey want it, in short, to 8eco0e 0ore =adisonian. !he !r#0anite networ2, ofco#rse, wo#ld not 0ind appearin 0ore =adisonian, 8#l its end#rin a08ilion is lo 8eco0e, inreality, less =adisonian.

9t is not clear what precisely 0iht occ#r sho#ld Baehot3s cone of overn0ent 1fall to earth.1nited States history provides no precedent. Ine possi8ility is a prolonation of what are nowlon-standin trends, with the arc of power contin#in to shift rad#ally fro0 the =adisonianinstit#tions to the !r#0anite networ2. nder this scenario, those instit#tions contin#e tos#8contract national sec#rity decision0a2in to the !r#0anites7 a 0a:ority of the p#8licre0ains satisfied with tradeoffs 8etween li8erty and sec#rity7 and 0e08ers of a dissatisfied0inority are at a loss to 2now what to do and are, in any event, chilled 8y widely-feared!r#0anite s#rveillance capa8ilities. !he =adisonian instit#tions, in this f#t#re, fade rad#allyinto 0#se#0 pieces, li2e the British Ho#se of 4ords and 0onarchy7 =adisonians 2iss 8a8ies, c#tri88ons, and read !r#0anite tal2in points, while the !r#0anite networ2, caref#l to retainhistoric for0s and fa0iliar sy08ols, ta2es on the s#8stance of a silent directorate.

Another possi8ility, however, is that the allto earth could entail conse)uencesthat are

prooundly disruptive, 8oth or the government and the people. !his scenario wo#ld 8e0ore li2ely in the after0ath of a catastrophic terrorist attac2 that ta2es place in an environ0entlac2in the safety-valve chec2s that the =adisonian instit#tions once provided. 9n this f#t#re,an initial !rally round the lag! ervor and associated crac(-down are ollowed, later,

by an increasing spiral o recriminatory reactions and counter-reactions. !heovern0ent is seen increasinly 8y ele0ents of the p#8lic as hidin what they o#ht to 2now,cri0inaliin what they o#ht to 8e a8le to do, and spyin #pon what o#ht to 8e private. !hepeople are seen increasinly 8y the overn0ent as #na8le to co0prehend the ravity of sec#ritythreats, #nappreciative of its sec#rity-protection efforts, and #nworthy of its own tr#st. Recentp#8lic opinion s#rveys are portento#s. A Septe08er +'$/ ?all#p >oll revealed that A0ericans3tr#st and confidence in the federal overn0ent3s a8ility to handle international pro8le0s hadreached an all-ti0e low7// a J#ne +'$/ !i0e 0aaine poll disclosed that ' of those ae

eihteen to thirty-fo#r 8elieved that dward Snowden 1did a ood thin1 in lea2in the news ofthe @SA3s s#rveillance prora0./* !his yawnin attit#dinal ap 8etween the people and theovern0ent co#ld reflect itself in 0#ltiple ways. =ost o8vio#sly, the !r#0anite networ2 0#stdraw #pon the .S. pop#lation to fill the five 0illion positions needed to staff its pro:ects thatre


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more diicult. ?overn0ent, after all, e;ists for a reason. 9t carries o#t 0any helpf#l andindeed essential f#nctions in a hihly specialied society. When those f#nctions cannot 8ef#lfilled,wor(-arounds emerge8 and social dislocation results. =ost serio#sly, theprotection of legitimate national security interests woulditself suerif the p#8lic were#na8le to distin#ish 8etween 0eas#res vital to its protection and those ass#0ed to 8e#nderta2en 0erely thro#h 8#rea#cratic inertia or lac2 of i0aination.

The governmentitself, 0eanwhile, could not be counted upon to remain passive inthe ace o growing public obduracy in response to its efforts to do what it thin2s essentialto safe#ard national sec#rity. Here we do have historical precedents, and none is co0forta8lyrevisited. !he Alien and Sedition Acts in the $'s7/ the >al0er Raids of $$ and $+'7/)the ro#nd-#p of Japanese-A0erican citiens in the $*'s7/ overn0ental spyin on anddisr#ption of civil rihts, draft protesters, and anti-war activists in the $('s and $'s7*' andthe inco00#nicado incarceration witho#t chares, co#nsel, or trial of 1#nlawf#l co08atants1only a few short years ao*$Oall are e;a0ples of what can happen when overn0ent seesli0ited options in confrontin nerve-center sec#rity threats. @o one can 8e certain, 8#t theultimate dangerposed i the system were to allto earth in the after0ath of a devastatinterrorist attac2 could be intensely divisive and potentially destabili0ingOnot #nli2e what wasenvisioned 8y conservative Rep#8licans in "onress who opposed !r#0an3s national sec#rity

prora0s when the 0anaerial networ2 was esta8lished.*+ 9t is therefore appropriate to 0ove8eyond e;planation and to t#rn to possi8ilities for refor0Oto consider steps that 0iht 8e ta2ento prevent the entire str#ct#re fro0 fallin to earth.

"ote neg to debase the as reliance securiti0ed law in avor odemocratic restraints on the &residentStephanie A. $evin ?2, law prof at Ha0pshire "ollee, ?rassroots Coices% 4ocal Action and@ational =ilitary >olicy, *' B#ff. 4. Rev. /+

9n this sense,what is i0portant a8o#t federalis0 is not that it locates power 1here1 or 1there1 O notthat so0e thins are assined irretrieva8ly to the federal overn0ent or others to the states O8#t that it creates a tension

a8o#t power, so that there are co0petin so#rces of a#thority rather than one #nitary soverein .Hannah Arendt has written that 1perhaps the reatest A0erican innovation in politics as s#ch was the consistent a8olition of

sovereinty within the 8ody politic of the rep#8lic, the insiht that in the real0 of h#0an affairs sovereinty andtyranny are the sa0e.1$* A2hil A0ar has e;pressed what is act#ally the sa0e 8asic insiht in a very different for0#lation,writin that the A0erican innovation was to place sovereinty 1in the >eople the0selves . 19SWhether one views #nitary sovereinty as a8olished or relocated to the people, the 2ey point isthat it is no loner considered to 8e in any #nitary overn0ent. ?overn0ental instit#tions aredivided and 2ept in tension. At the federal level, this is the fa0iliar doctrine of separation of powers. !he sa0e principleani0ates federalis0. !he tension is val#ed 8eca#se it creates space for the e;pression of s#ppressed

viewpoints and helps to prevent any one orthodo;y fro0 achievin co0plete hee0ony. A0ar s#0s#p the contri8#tion that this overn0ental innovation 0a2es to the li8erty of the people 8y writin% 1As with separation of powers,federalis0 ena8led the A0erican >eople to conrofessor A0ar has fra0ed it presents two diffic#lties for present p#rposes. Lirst, 8y na0inonly the1state 1 and 1national1 overn0ents, it inores the field of local overn0ent action , a fieldpartic#larly accessi8le to the direct involve0ent ofthe very citienswho constit#te A0ar3s soverein

1>eople.1$ Second, 8y 0a2in the s#8:ect of the ver8 the 1overn0ent aency,1 the sentence 0a2es it so#nd as i it were

the !government agency! which acts , rather than reconiin that it is people who

act though the aencies of government . Since the foc#s here is on federalis0 as a 0eans of fosterin civicparticipation, 8oth of these


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foc#s 0#st 8e not on overn0ent instit#tions actin,8#t on people actin thro#h the0. 9ns#00ary, three 2ey attri8#tes of participatory federalis0 0#st 8e hihlihted. !he first is thatwhat is 0ost i0portant isnot where overn0ent power is assinedO to the federal overn0ent, the states, or the localities O8#t the veryfact that there are shared and overlappin powers. !his dispersion of power 0eans that thecitien is 8etter protected fro0 the daners that are inherent in 8ein s#8:ect to any one #nitarysoverein.$) A second 2ey attri8#te is that the val#e of this federalis0 lies not in the e0power0ent of overn0ent, 8#t in the

e0power0ent of people. 9ts ani0atin p#rpose isnot to add to or detract fro0 the powers of any partic#lar level ofovern0ent, 8#t to provide the 0ost fr#itf#l arrane0ents for enhancin the possi8ility of en#ine

citien control over overn0ent. !hird, the only meaningul measure othe success or

ailure of this type of federalis0 is the e/tent to which it contri8#tes to increased opport#nities

for citi0ens to have a voice in overn0ent. !his 0#st 8e not at the level of deceptive

a8straction O 1the >eople spea21 O8#t at the very concrete level of act#al people with act#alvoices. !he oal is for 0ore people to 8e a8le to spea2 #p in settins 0ore e0powerin than their livin roo0sO and certainly state and local overn0ents, while not the only possi8le settins, provide s#ch an opport#nity. 9n concl#sion, theseeneral principles of participatory federalis0 0#st 8e lin2ed to the specific case of federalis0 in connection with 0ilitary policy. !heconstit#tional arrane0ents concernin 0ilitary power which were descri8ed in Section 99 fit with these three attri8#tes ofparticipatory federalis0


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@perations A

rone court wrec(s operations % turns the caseJa0es @liphant, dep#ty editor for @ational Jo#rnal, 1PCettin the Kill 4ist,E April *,http%www.national:o#rnal.co00aainevettin-the-2ill-list-+'$/'*'*Q

!o 0any followin >resident I8a0aGs tareted-2illin prora0, the idea of so0e for0aloversiht over the #se of drones, so0e leal a#thority chec2in the ad0inistrationGs cond#ct,see0s pr#dent, even desira8le. A0ericans are f#nda0entally s#spicio#s people. >ower#nrestrained 0a2es #s edy. 9tGs why we vote for divided overn0ent and ridloc2, even tho#h

we li2e to co0plain a8o#t it. 9tGs why we donGt let police officers search o#r ho0es witho#t awarrant. !o that 0i;, add so0e old-fashioned hysteria, co#rtesy of senators s#ch as Rand >a#land !ed "r#Owho, in a 0atter of days last 0onth, see0ed to have convinced half the nationthat S2ynet was real, that 0alevolent drones were a8o#t to start c#ttin down .S. citiens in

line at >anera BreadOand itGs easy to see why so0e sort of o#tside 0onitor, a drone co#rtE ifyo# will, 0iht 0a2e sense. !he ad0inistration has inadvertently helped that ar#0ent8y itsstubborn reusal to reveal even the smallest8 most benign details o thecounterterrorism program. !he stonewallin has f#eled spec#lation that the process 8y

which a#thorities select and 2ill tarets is s#spect, that the whole endeavor has an ad hoc


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to identiy and navigate the variables involved in a drone stri(e. Jeh Johnson,for0erly the I8a0a ad0inistrationGs top lawyer at the >entaon, e;pressed his disco0fort withco#rt-8ased oversiht in a speech last 0onth at Lordha0 niversity. #estions of feasi8ility andi00inence , he said, are #p-to-the-0in#te, real-ti0e assess0ents .E =ore i0portant, Johnsone0phasied, we want 0ilitary and national sec#rity officials to contin#ally assess and reassessthese two


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NSA Reorm A

NSA reorm is in a narrow Congressional sweet spotDavid Daw(ings, Roll "all, E2F$*, HillGs Bipartisan Deadloc2 on >hone Records =ay Beasin, 8los.rollcall.co0haw2inso8a0a-nsa-refor0-plan-co#ld-ease-conressional-deadloc2-on-spyin+

iht 0onths ao , in one of its 0ost i0portant andfascinatinly nonpartisan votesof recent 0e0ory, theHo#se ca0e #p:#st seven 0e08ers short of evisceratin the overn0entGs vast effort to 2eep

ta8s on A0erican phone ha8its.!he roll call revealed a proound divide in Congress on

how assertively the intellience co00#nity sho#ld 8e allowed to pro8e into the personal lives ofprivate citiens in the ca#se of thwartin terroris0. 9t is a split that has sty0ied leislative efforts to

reva0p the @ational Sec#rityAencyGs 8#l2 data collection prora0s. :ntil now, 0ay8e. Senior 0e08ers with

:#risdiction over the s#rveillance efforts, in 8oth parties and on 8oth sides of the Hill, aresinalineneralied and tentative 8#t nonetheless clear support for thecentral ele0ents of a proposed

co0pro0isethat >resident Barac2 I8a0apreviewed!#esday and will for0ally #nveil 8y wee2Gs end.

!he president, in other words, 0ay 8e close to findin the congressional sweet spot on one of

the 0ost ve;in pro8le0s heGs faced O an iss#e that s#red onto WashintonGs aenda after the secret phone recordscollection efforts were disclosed 8y for0er @SA contractor dward Snowden. 9f I8a0a can seal the deal,which heGs

pledged to push for 8y the end of J#ne, it wo#ld al0ost s#rely ran2 a0on his 0ost i0portant

second-ter0 victories at the "apitol. 9t alsowo#ld create an e;ception that proves the r#le a8o#tthe i0pro8a8ility of 8ipartisan aree0ent on hot-8#tton iss#es in an election season.9 reconie that people were concerned a8o#t what 0iht happen in the f#t#re with that 8#l2 data,E I8a0a said at a newsconference in !he Ha#e, where heGs 8een wor2in to ain s#pport for containin R#ssia fro0 a ro#p of #ropean leaders who havetheir own co0plaints a8o#t .S. spyin on telephone calls. !his proposal thatGs 8een presented to 0e wo#ld eli0inate that

concern.E !he top two 0e08ers of the Ho#se9ntellience "o00ittee, ?I> "hair0an =i2e Roers of =ichian and ran2inDe0ocrat ".A. D#tch R#ppers8erer of =aryland, introd#ced their own 8ill to reva0p s#rveillance policy!#esdayO and declared they e;pect it wo#ld trac2 very closely with the lan#ae co0in fro0 thead0inistration. !hey said they had 8een neotiatin with White Ho#se officials for several wee2sand viewed the two proposals as co0pati8le. At their core, 8oth the I8a0a and Ho#se 8ills wo#ld end the @SApractice of s#c2in #p and storin for five years the date and ti0e, d#ration and destination of 0any 0illions of phone calls placedor received 8y A0ericans. 9nstead, the phone co0panies wo#ld 8e reatric2 J. 4eahy, D-Ct., said he wo#ld re0ain open to findin the 0a2ins of a deal in theI8a0a plan.4eahy sinaled the leislative neotiatin wo#ld 8e 0#ch s0oother if I8a0a s#spended the 8#l2 data collectiond#rin the tal2s. =#ch 0ore enth#siastic was"alforniaGs Dianne Leinstein, the De0ocratic chairwo0an of the Senate


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9ntellience "o00ittee, who said sheenerally s#pports the Ho#se proposal and views I8a0aGs plan aworthy effort.E Her co00itteeGs top Rep#8lican, the retirin Sa;8y "ha08liss of ?eoria, was a 8it 0ore e


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were ar#in aainst their own 8ill that they were #nveilin. 19 passionately 8elieve this prora0 has saved A0erican lives,1 Roers

said. R#ppers8erer said if the prora0 had 8een in place in +''$, it 0ay have prevented the Sept. $$ attac2s. B#t the law0a2ersac2nowleded there is 8road 1disco0fort1 with the prora0 as it is c#rrently str#ct#red. 1We needto do so0ethin a8o#t 8#l2 collection 8eca#se of the perception of o#r constit#ents,1 R#ppers8erer ad0itted. nder theirleislation, the vast data8ase of phone records wo#ld stay in the hands of the phone co0panies. !he @SA co#ld force the phoneco0panies to t#rn over partic#lar records, and the Lorein 9ntellience S#rveillance "o#rt wo#ld review the @SA orders after thefact. B#t Roers re:ected a reporter3s s#estion that the @SA sho#ld have never had control of the 0assive data8ase of phone

records in the first place. 1!here was no a8#se, no illeality, no #nconstit#tionality,1 he said. Lor all their hesitance,however, Roers and co0pany 0#ch prefer their version to a co0petin proposal to chane the way theovern0ent athers infor0ation. !hat wo#ld 8e theSA Lreedo0 Act, a proposal fro0Senate J#diciary "o00ittee"hair0an >atric2 4eahyand Rep. Ji0 Sensen8renner that Roers and his il2 fear wo#ld o too far inha0strinin the @SA. !he SA Lreedo0 Act wo#ld reresident I8a0a is e;pected to #nveil his own plan to refor0 the controversial phone data collectionprora0 this wee2. Accordin to !he @ew or2 !i0es, I8a0a3s proposal wo#ld also 2eep the data8ase in the hands of the phoneco0panies. His plan wo#ld have to#her :#dicial oversiht than the Ho#se 8ill 8y reresident Barac2I8a0a3s top trans-Atlantic oals% a sweepin free-trade aree0ent that wo#ld add an esti0atedT$/) 8illion 5$'' 8illion e#ros6 a year to each econo0y3s ross do0estic prod#ct. !he SafeHar8or aree0ent allows co0panies to 0ove data aro#nd their networ2s as needed. 9n itsa8sence, data fro0 #ropeans 0iht have to 8e stored and processed only within the physicalconfines of #ropeOa h#e e;pense and possi8ly ins#r0o#nta8le h#rdle for 0any co0panies.=any .S. co0panies wo#ld effectivelybe unable to operate in urope if they werereacha8le 8y #ropean law . So0e co0panies co#ld e;plicitly 8e 8arred fro0 e;pandin theirpresence in #rope o#t of fears that they operate as pipelines to the @SA. Accordin to the Wall


16/89

Street Jo#rnal3s Anton !roianovs2i% A!&! 9nc.3s a08itions to e;pand in #rope have r#n into#ne;pected h#rdles a0id the rowin o#tcry across the reion over s#rveillance 8y the @ationalSec#rity Aency. ?er0an and other #ropean officials said any atte0pt 8y A!&! to ac


17/89

it acco#nted for /+ percent of world oil prod#ction and $ percent of world nat#ral as prod#ction. 9n +'+', the area is pro:ected toprod#ce ro#hly *+ 0illion 8arrels of oil per day--/ percent of the lo8al prod#ction total 5$'.) 0illion 8arrels per day6. !hree 2eyreions-#rope, the nited States and the Lar ast--collectively are pro:ected to cons#0e (' percent of that lo8al prod#ction 5$(

percent, + percent and $ percent, respectively6. !he co08ination of oil and volatility ives the nited States no choice.A0ericafaces an aweso0e challene in helpin to s#stainso0e deree of sta8ility a0on precario#s statesinha8ited 8y increasinly politically restless, socially aro#sed and reliio#sly infla0ed peoples. 9t0#st #nderta2e an even 0ore da#ntin enterprise than it did in #rope 0ore than half a cent#ry ao, iven a terrain that is

c#lt#rally alien, politically t#r8#lent and ethnically co0ple;. 9n the past, this re0ote reion co#ld have 8een left to its own devices.ntil the 0iddle of the last cent#ry, 0ost of it was do0inated 8y i0perial and colonial powers. !oday, to inore its pro8le0sand #nderesti0ate its potential for lo8al disr#ptionwo#ld 8e tanta0o#nt to declarin an openseason for intensiying regional violence, reion-wide conta0ination 8y terrorist ro#psand the competitive prolieration o weaponry of mass destr#ction. !he nited States th#s faces a tas2 of 0on#0ental scope andco0ple;ity. !here are no self-evident answers to s# ch 8asic astre0edies tested in #rope--li2e the =arshall >lan or @A!I, 8oth of which e;ploited an #nderlyin transatlantic political-c#lt#ral solidarity--do not


18/89

H@ C&

The e/ecutive branch o the :nited States ederal government shouldissue and enorce an e/ecutive order to establish e/ ante transparencyo targeted (illing standards and procedures7

The e/ecutive branch should clariy that those standards mean theadministration will not carry out drone stri(es that violate the right tolie7

The :nited States /ecutive Branch should create a neutral e/ecutivedecisionma(ing body that provides due process to potential targets o

targeted (illing7

The C& is binding and solves the whole a?raha0 odds, >h.D., "oncordia professor of political science, +'1, !a2e p o#r >en%nilateral >residential Directives in A0erican >olitics, p. $'

9f e;ec#tive orders, procla0ations, 0e0oranda, and other #nilateral presidential directives0erely e;pressed the president3s view, then they wo#ld 8e i0portant 8#t not necessarilydeter0inative. Dowever8 these directives are not mere statements o presidential

preerences5 rather8 they establish binding policies and have the orce o law 8

ultimately bac(ed by the ull coercive power o the state . 9n Ar0stron v. nited

States, )' .S. 5$/ Wall.6 $* 5$)$6, the S#pre0e "o#rt considered the leal stat#s of aprocla0ation and decided that s#ch directives are p#8lic acts to which co#rts 0#st ive effect.E9n other words, in the eyes of the :#diciary, #nilateral presidential directives are:#st as 8indinas laws. 9n $(', Senator Ro8ert Byrd 5D-WC6 advised his collea#es, Keep in 0ind that ane;ec#tive order is not stat#tory law.E *( >olitically, that 0ay 8e tr#e, as #nilateral presidentialdirectives represent the will only of the chief e;ec#tive and lac2 the direct endorse0ent of

conressional 0a:orities. B#t constitutionally and legally 8 a unilateral presidential

directive is as authoritative and compulsory as a regular law, at least #ntil s#ch ti0e

as it is done away with 8y "onress, co#rts, or 8y a f#t#re #nilateral presidential directive.

/ecutive order establishing transparency o targeting decisionsresolves drone legitimacy and resentmentJennifer as(al, Lellow and Ad:#nct >rofessor, ?eoretown "enter on @ational Sec#rity andthe 4aw, ?eoretown niversity 4aw "enter, April +'1, AR!9"4% !H ?I?RA>H IL!H BA!!4L94D% A LRA=WIRK LIR D!@!9I@ A@D !AR?!9@? I!S9D !H1HI!1 "I@L49"! VI@, $($ . >a. 4. Rev. $$(

*. >roced#ral Re


19/89

"#rrently, officials in the e;ec#tive 8ranch carry o#t all s#ch e; ante review of o#t-of-8attlefieldtaretin and detention decisions, reportedly with the involve0ent of the >resident,8#t

without any binding and publicly articulated standards governing the e/ercise o

these authorities . n$(/ All e; post review of taretin is also done internally within the

e;ec#tive 8ranch. !here is no p#8lic acco#ntin, or even ac2nowled0ent, of 0ost stri2es, their

s#ccess and error rates, or the e;tent of any collateral da0ae. Whereas the Depart0ent ofDefense provides solatia or condolence pay0ents to Afhan civilians who are 2illed or in:#red asa res#lt of 0ilitary actions in Afhanistan 5and for0erly did so in 9ra


20/89

Additional details will need to 8e addressed, incl#din the te0poral li0its of the co#rt3s or review 8oard3s a#thoriations. Lor so0e hih-level operatives, incl#sion on a taretlist wo#ld pres#0a8ly 8e valid for so0e set period of P$++Q ti0e, s#8:ect to specific renewal reresident o#ht to, at a 0ini0#0, iss#e an e;ec#tive orderesta8lishin a transparent set of standards and proced#res for identifyin tarets of lethal 2illinand detention operations o#tside a one of active hostilities. n$+ !o enhance leiti0acy, theproced#res sho#ld incl#de taret list reviews and disposition plans 8y the top official in each of

the aencies with a sta2e in the o#tco0e the Secretary of Defense, the Director of the "9A, theSecretary of State, the Director of Ho0eland Sec#rity, and the Director of @ational 9ntellience,with either the Secretary of Defense, Director of @ational 9ntellience, or >resident hi0self,responsi8le for final sin-off. n$/ 9n all cases, decisions sho#ld 8e #nani0o#s, or, in thea8sence of consens#s, elevated to the >resident of the nited States. n$* Additional details willneed to 8e wor2ed o#t, incl#din critical ost ReviewLor tareted-2illin operations, e; post reviews serve only li0ited p#rposes. !hey o8vio#slycannot restore the taret3s life. B#t retrospective review either 8y a L9S"-li2e co#rt or review

8oard can serve to identify errors or overreachin and there8y help avoid f#t#re 0ista2es. !hiscan, and ideally wo#ld, 8e s#pple0ented 8y the adoption of an additional Article 999 da0aes0echanis0. n$ At a 0ini0#0, the relevant 9nspectors ?eneral sho#ld enae in re#lar ande;tensive reviews of tareted-2illin operations. S#ch post hoc analysis helps to set standardsand controls that then et incorporated into e; ante decision0a2in. 9n fact, post hoc review canoften serve as a 0ore 0eaninf#l and often 0ore searchin in


21/89

terror adv

'roupthin( is wrongAnthony Dempell ;Pser ;perience "ons#ltin Senior 9nfor0ation Architect,?ro#pthin2% An introd#ction to Janis3 theory of conc#rrence-see2in tendencies in ro#p

wor2., http%www.anthonyhe0pell.co0papersro#pthin2, =arch /Q

9n the thirty years since Janis first proposed the ro#pthin2 0odel, there is still little aree0entas to the validity of the 0odel in assessin decision-0a2in 8ehavio#r 5>ar2, +'''6. Janis3

theory is often criticied 8eca#se it does not present a fra0ewor2 that is s#ita8le for e0pirical

testin 7 instead, the evidence for ro#pthin2 co0es fro0 larely r#itt, $)', cited in "hoi & Ki0, $6. Sniee2 5$+6 ar#es that

there are instances where conc#rrence-see2in 0ay pro0ote ro#p perfor0ance . When #sed toe;plain 8ehavio#r in a practical settin, ro#pthin2 has 8een fra0es as a detri0ental ro#p

process7 the res#lt of this has 8een that 0any corporate trainin prora0s have created

strateies for avoidin ro#pthin2 in the wor2place 5#inn, Laer0an, !ho0pson & =c?rath,

$', cited in "hoi & Ki0, $6.

AI dead#ailiates are hype and not a threatVachary *ec(, associate editor of !he Diplo0at, E1J$*, Al aeda3s Brand is Dead,nationalinterest.orprintco00entaryal-


22/89

B#t the larer pro8le0 with the ar#0ent that Al aedaGs ideoloy is spreadin is that it is

completely inaccurate . !he Al aeda 8randE was never as pop#lar in the Ara8 world as it

was portrayed in the West, and far fro0 rowin, its pop#larity has 8een rapidly declinin inrecent years. 9n fact, there are sins thatAl Iaeda itsel no longer believes in it7=#ch of the conf#sion a8o#t Al aedaGs pop#larity is rooted in the Western tendency to conflate

Al aeda with 9sla0ic terroris0 0ore enerally. 9f one defines Al aedaGs 8rand as si0ply 8einany terrorist attac2 or ins#rency carried o#t in the na0e of 9sla0, an ar#0ent co#ld 8e 0adethat the threat is rowin. B#t, of co#rse, this is not what Al aedaGs ideoloy is, nor is it what0ade Al aeda s#ch a threat to the nited States and its Western allies.9sla0ic-inspired terroris0 lon predated the for0ation of Al aeda. 9t was, for instance, aconstant reality in the Ara8 world d#rin the "old War than2s to the 0any ro#ps that wereinspired 8y the writins of Sayyid #t8. !hese ro#ps so#ht to 8e van#ard 0ove0ents that#sed terroris0 and leadership assassinations to overthrow Ara8 rei0es Pthe near ene0yEQ thatthey viewed as ins#fficiently 9sla0ic.

Al aeda was an entirely different story, as a few ast#te individ#als in the .S. national sec#rityesta8lish0ent realied d#rin the $'s.Al aeda had a very precise ideoloy, which was seenas a co0petitor to the ideoloy espo#sed 8y the do0estic :ihadists.4i2e the do0estic :ihadists, Al aedaGs #lti0ate oal was to topple local rei0es and replace

the0 with ones 8ased on Sharia 4aw 5and #lti0ately a sinle "aliphate6. However, Al aedaleaders clai0ed that the do0estic :ihadists were failin in this oal 8eca#se of the s#pport thelocal rei0es received fro0 the nited States and its Western allies. Accordin to Al aeda, the.S. and its Western allies wo#ld never allow their allied overn0ents in the Ara8 world to 8etoppled. !herefore, in order for :ihadists to overthrow these hated rei0es, and set #p 0ore9sla0ic overn0ents in their place, they 0#st first taret the far ene0yOthe .S. and the West.Inly when the :ihadists had forced the .S. to stop s#pportin these local rei0es co#ld thelatter 8e overthrown.

Ay0an al-Vawahiri, the c#rrent leader of Al aeda, e;plained this ideoloical ar#0ent nicely inhis P*Qfa0o#s +'' letter to P*QAl aeda PQ in 9ra


23/89

p#8lication, 9nspire =aaine, which #red =#sli0s livin in Western co#ntries to orchestratetheir own attac2s.Ine of the e;ceptions to this 0odel is 0ar Laro#2 A8d#l0#talla8, the @ierian who#ns#ccessf#lly tried to down a co00ercial airplane flyin to Detroit on "hrist0as Day +''.

A8d#l0#talla8 had 8een in e0en st#dyin Ara8ic when he decided to :oin the international:ihad. After 0a2in contact with AA>, the ro#p 8#ilt hi0 a specially desined #nderwear

8o08 that wo#ld not 8e detected 8y airport sec#rity. !h#s, the ro#p did devote so0e reso#rcesto the attac2Ona0ely, 8#ildin the 8o08 and possi8ly financin A8d#l0#talla8Gs airfareO8#t it

wasnGt willin to sacrifice any of its own 0e08ers to attac2in the .S. L#rther0ore, theoriinal i0pet#s for the attac2 ca0e fro0 A8d#l0#talla8, who contacted the ro#p on his owninitiative.

Another e;ception to AA>Gs #s#al 0odel ca0e in +'$', when the ro#p atte0pted to ship twocaro 8o08s to "hicao. !ipped off 8y Sa#di intellience, the pac2aes were discovered 8eforethe 8o08s e;ploded. nli2e the previo#s attac2s, the initial i0pet#s to la#nch this attac2 didnGtco0e fro0 o#tside the ro#p. Still, the a0o#nt of reso#rces AA> devoted to the attac2 were0ini0al, a fact that the ro#p p#8licly 8raed a8o#t.

While these events de0onstrate that AA> does pose so0e threat to the .S. ho0eland, theyhardly s#est the ro#p is 0odelin itself off Al aedaGs ideoloy. 9n contrast to the li0ited

reso#rces it has devoted to attac2in the nited States, the ro#p has spent the 8#l2 of itseneries on wain war aainst the e0eni overn0ent. !his has at ti0es incl#ded la#nchinconventional style attac2s in so#th e0en, and holdin territory, which they have tried toovern. "learly, then, AA> is far 0ore invested in attac2in the near ene0y, and only cas#allyinterested in attac2s on the far ene0y.

All the other Al aeda affiliates have foc#sed e;cl#sively on tryin to overthrow local rei0esand esta8lishin Sharia overn0ents in their placeOwhich is a direct reutation to AlIaedas ideology. !his cannot 8e attri8#ted entirely to a lac2 of via8le options for attac2inthe West. Lor years now So0ali A0ericans have traveled to So0alia to :oin al-Sha8aa8 in itsfiht for control over that co#ntry. P(QAccordin to .S. intellience esti0ates P(Q, the ro#pco#nted at least fifty .S.-passport holders as 0e08ers in +'$$, and as 0any as twenty today.

Al-Sha8aa8 leaders co#ld have directed any one of these 0e08ers to ret#rn to the nited States

to carry o#t attac2s there iven the ease with which they co#ld ain entry into A0erica.et there is no evidence al-Sha8aa8 has decided to #se a sinle one of these 0e08er s for thep#rpose of attac2in the nited States. 9nstead, it has felt they are of 0ore #se stayin inSo0alia to fiht in the civil war there. !he only e;ternal attac2s it has precipitated have 8eenaainst African co#ntries that have troops in So0alia fihtin al-Sha8aa8. !he oal of theseattac2s is to force those African co#ntries to withdraw their troops fro0 So0alia, and thereforeincrease the chances that al-Sha8aa8 will prevail in its effort to seie control of the co#ntry.!he actions of Al aeda in 9ra< 5A96 are also tellin. !he ro#p p#8licly clai0ed it wasesta8lished to defend 9ra< aainst the .S.-led occ#pation, and for years it had easy access to.S. and coalition troops in 9ra


24/89

Sy08olic of the PQ lac2 of s#pport for Al aedaGs 0ission is the fact that newer 9sla0ist ro#pswith s#pposed Al aeda lin2s havenGt adopted the Al aeda na0e. ven ro#ps that for0erlytoo2 the Al aeda na0e, s#ch as AA> and A9 5lon 8efore 8ein disavowed 8y Al aeda"entral6, have dropped Al aeda fro0 their na0es.9nstead of Al aedaGs ideoloy spreadin, then, whatwe are seein is 9sla0ist ro#ps revert 8ac2to the do0estic-:ihad 0odel that was prevalent in the "old War 8#t had lost stea0 in the $'s.

Al aeda had always considered itself an ideoloical co0petitor to these do0estic :ihadists.9ncreasinly, it is 8eco0in one of the0.@one of this sho#ld 8e s#rprisin for at least two reasons. Lirst, the Ara8 Sprin #neolicy 9nstit#te 5HS>96. He is also a for0er.S. Ar0y Ifficer and for0er Special Aent with the LB9. Lran2 J. "ill#ffo is the Director of theHo0eland Sec#rity >olicy 9nstit#te at !he ?eore Washinton niversity., (+$+'$+, 1Dronesin e0en% 9s the .S. on !aretM1, www.w#0c.ed#hspipolicydrones.pdf6

AA>Gs persistence arises not only fro0 internal insta8ility in e0en 8#t even 0ore fro0e;oeno#s forces leadin this al aeda affiliate to 8e 8olstered a8ove all others. "ritics of dronestri2es 0yopically foc#s on this tactic as the sin#lar ca#se for AA>Gs ascension. Drone stri2es

at most provide only a peripheral and recent motivation for the rowth of a terrorist

affiliate that has 8een aressively atte0ptin to e;pand over the past five years. Severalpheno0ena occ#rrin o#tside e0enGs 8orders have 8een the pri0ary catalyst for AA>Gse0erence. Lirst, forein fihter records capt#red 8y .S. forces in 9ra< in +'' indicated that

e0eni forein fihters were the second 0ost li2ely to choose to 8e fihtersE rather than0artyrsE when they arrived in 9ra


25/89

+''.) o#n Sa#di 0en have lon filled the ran2s of al aeda and its affiliates, and Sa#diAra8iaGs persistent ta0pin down of internal al aeda threats creates terrorist 8leedover innear8y e0en. !hird, prior to his death, Bin 4aden 8ean searchin for a new safe haven forrelocatin his 8attered operatives in >a2istan and Afhanistan. As noted 8y ?a8riel KoehlerDerric2 in recent analysis of the A88otta8ad doc#0ents declassified in =ay +'$+, Bin 4adenenvisioned e0en, either as a safe havenE for :ihadists or a reserveE force for al-aYida in

Afhanistan or 9raenins#la6 see2in shelter fro0 .S.co#nterterroris0 efforts. Lo#rth,e0en provides Bin 4aden and al aeda a safe haven 0orepro;i0ate to their essential 8ase of financial s#pport N wealthy >ersian ?#lf donors. Bein 8led

8y 0iddle0en and the endless a0o#nt of protection 0oney needed to s#stain safe har8or in>a2istan, Bin 4aden li2ely saw e0en as a 0ore efficient and effective location for sec#rinreso#rces. With his death, financial s#pport for al aeda in >a2istan has decreased s#8stantiallyand 0any 8elieve that the re0ainin strea0 of al aeda donor s#pport now flows to AA> in

e0en, not al aedaGs senior leadership in >a2istan.$'ven a sliht increase in donor s#pport inthe wa2e of Bin 4adenGs death wo#ld f#rther e0power AA>. Linally, forein fihters that once

wo#ld have floc2ed to 9ra< 5+''-+''6 or Afhanistan 5+'')-+'$'6 now li2ely see 0oreopport#nity for :ihad 8y 0iratin to e0en. While the forein fihter flow to e0en represents

0erely a tric2le of what al aedaGs recr#it0ent was at its heiht, AA> in e0en li2ely providesthe 0ost appealin option for :oinin an official affiliate of the al aeda 0ove0ent N especiallyfor those potential recr#its in the Ara8ian >enins#la. Keep in 0ind that 0ilitary actions,incl#din the #se of drones, have 0ade travel to >a2istanGs Lederally Ad0inistered !ri8al Areas5LA!A6 less appealin and less hospita8le to forein fihters. !hese s#ccessf#l .S. 0ilitaryactivities have had sinificant operational effects on al aeda and its affiliates 8y disr#ptinpipelines, and they serve as a stron deterrent to f#t#re al aeda activities in the LA!A.$$9nparallel to the 0any e;oeno#s factors strenthenin AA> over the past five years, e0enGsinsta8ility and inter0ittent 0ilitary co00it0ent to fihtin AA> has provided a0pleopport#nity for the terror ro#ps to e;pand over the past year. !he political str#les of theSaleh rei0e and its replace0ent have #nder0ined the co#ntryGs 0ilitary capacity allowin for

AA> and its ins#rent ar0 Ansar al-Sharia to s#ccessf#lly advance and hold territory. !he

e0eni overn0entGs contin#in ina8ility to provide for portions of the e0eni pop#lationallows AA> and Ansar al-Sharia space to fill a void in needed social services and sec#re localpop#lar s#pport. =ost i0portantly, e0eni inco0petence 8reathed life into a dor0ant AA>franchise allowin 2nown al aeda operatives on at least two occasions to escape detentionprovidin 0#ch of the ro#pGs c#rrent enery.$+ While so0e narrowly point to drones for

0an#fact#rin AA>, many e/ogenous and endogenous actors propel the ro#p Gs

c#rrent e;ternal terroris0 ca0pain and internal ins#rency aainst the e0eni state. What docritics of drones 0is#nderstand a8o#t drone operations in e0enM "ritics of the .S. droneca0pain in e0en conf#sinly l#0p toether disparate iss#es related to ter0inoloy,intellience processes, leal a#thorities and terrorist propaanda to :#stify stoppin the #se ofthe .S.Gs 0ost effective co#nterterroris0 techniGs i00ediate threat to the .S.Altho#h an i0perfect tool,

drone stri2es s#ppress terrorists in otherwise denied safe havens and li0it :ihadistsG a8ility tooranie , plan and carry o#t attac2s. !hese stri2es help shield #s fro0 har0 and serve o#rnational interests. Doin nothin is si0ply not an option. =edia acco#nts of attac2s in e0enoften 0ista2enly credit .S. drones for every e;plosion in e0en. Drones represent one ofseveral technoloy platfor0s e;ec#tin airstri2es that incl#de cr#ise 0issiles, potentially .S. or

e0eni fihter aircraft or even helicopter assa#lts. Drone critics correctly cite instances wherepoor intellience leads to the 2illin of civilians andor those in opposition to the Saleh rei0e.However, one of the instances co00only #sed in calls to end drone #se in e0en is act#ally notthe res#lt of a drone stri2e. "ritics point to the intellience fail#res of a cr#ise 0issile attac2 in al


26/89

=a:alah on Dece08er $, +''.$/ As an e;a0ple, ?reory Johnsen at >rinceton niversity ande0en e;pert writin at Wa cleric

Anwar al-Awla2i. 9n response, the .S. Depart0ent of J#stice released a 0e0o in Le8r#ary+'$+ detailin its :#stifications for taretin al-Awla2i in response to his plannin and directinthe atte0pted "hrist0as Day +'' atte0pt on an airliner over Detroit.$ ven when iven thisevidence, these sa0e critics contin#e to advocate that Awla2i sho#ld have 8een p#rs#ed thro#hthe .S. leal syste0, chared with a federal cri0e, arrested and then tried in a co#rtroo0. 9naddition to the o8vio#s li0itations the .S. enco#nters tryin to capt#re a terrorist residin in a

volatile forein safe haven, these ar#0ents inore the fact that Awla2i 2nowinly traveledo#tside the .S. and ad0ittedly :oined an officially desinated Lorein !errorist Iraniation5L!I6. !his action alone per0its Awla2iGs taretin and #nderc#ts the clai0s of illeality 8ydrone critics. !hese a#thors 8elieve the leal ar#0ent posed 8y drone critics in the case of

Awla2i lac2s leiti0acy. 9t is worth e0phasiin f#rther0ore that drone stri2es 0ay not always8e the preferred co#rse. Atte0pts to capt#re hih val#e tarets are ris2ier 8#t that downside0ay 8e o#tweihed 8y the potential intellience val#e of 2ey individ#als. A case-8y-caseassess0ent will always 8e needed. !he second contentio#s leal de8ate related to dronetaretin co0es fro0 the inadvertent 2illin of Anwar al-Awla2iGs son A8d#lrah0an al-Awla2ion Icto8er $*, +'$+. Reportin s#ests the intended taret of the stri2e was AA>Gs 0ediachief, 98rahi0 al Bana.$) !he death of A8d#lraha0an al-Awla2i is a traedy and has 8eco0e arallyin point for those 8elievin .S. drone stri2es create e;cessive civilian cas#alties. However,these sa0e critics cannot e;plain why A8d#lrah0an al-Awla2i was present in the ho0e of as#spected AA> taret, nor do they place any responsi8ility on Anwar al-Awla2iGs fa0ily who2nowinly placed A8d#lrah0an in the or8it of terrorists clearly 8ein p#rs#ed 8y the .S. !hirdand 0ost recently, anti-drone advocates have rallied aainst the I8a0a ad0inistrationGs recenta#thoriation to i0ple0ent sinat#re stri2es aainst AA> in e0en.$ !his ar#0ent aainstdrones, a8ove all others, 0ay prove the 0ost credi8le. !he ter0 sinat#re stri2esE s#ests thenotion that the .S. fires 0issiles at #n2nown tarets for si0ply loo2in s#spicio#s. Jo#rnalistsand h#0an rihts advocates are riht to draw attention to the #se of this tactic as it i0plies the2illin of #n2nown people for #nclear reasons. !he sinat#re stri2e tactic, if #sed in:#dicio#sly,

will res#lt in the 2illin of innocent civilians and is certainly 0ore inclined to radicalie localpop#lations and inspire f#rther AA> recr#it0ent. !hose opposin drone #se in e0enco00only cite civilian cas#alties as reason for stoppin drone stri2es. "ivilian cas#alties sho#ld

8e avoided at all costs, however drones in co0parison to all other 2inetic co#nterterroris0


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options, li2ely prod#ce the fewest civilian cas#alties per enae0ent. Statistics and ratiosre0ain diffic#lt to calc#late, and research has only :#st 8e#n on this new co#nterterroris0application. B#t, in co0parison to other for0s of warfare, drone stri2es 0ay 8e one of the leastcivilian cas#alty prod#cin tools in the history of warfare 5See endnote6.+' 4are scale 0ilitaryintervention 5i.e. rei0e chane6, 8road-8ased co#nterins#rency, 8ac2in of the e0eni0ilitary, ar0in of 0ilitias N all of these co#nterterroris0 options are far 0ore li2ely to prod#ce

civilian cas#alties. Drones s#pported 8y intellience provide .S. co#nterterroris0 efforts the0ost s#rical and the least cas#alty-prod#cin tool for enain AA>. 9n con:#nction with thede8ate over drones creatin civilian cas#alties, 0edia de8ates inore how al aeda deli8erately#ses civilians as h#0an shields aainst attac2. 9n doc#0ents seied d#rin the A88otta8ad raid,Bin 4aden instr#cts his operatives to avoid drone stri2es 8y stayin o#t of cars notin, We co#ldleave the cars 8eca#se they are taretin cars now, 8#t if we leave the0, they will start foc#sinon ho#ses and that wo#ld increase cas#alties a0on wo0en and children.E+$ Bin 4adeninstr#cted his operatives to #se wo0en and children as h#0an shields aainst drones 2nowin$6 the .S. wo#ld 8e 0ore rel#ctant to taret operatives when civilian cas#alties wo#ld 8en#0ero#s and +6 the .S. #n2nowinly 2illin civilians d#rin drone attac2s wo#ld #nder0inelocal pop#lar s#pport for .S. co#nterterroris0 efforts providin al aeda a0ple f#el forpropaanda N a lesson learned 8y al aeda in past failed :ihadi ca0pains where their e;pansive

violence aainst innocent civilians eroded local pop#lar s#pport for the terror ro#p. !he .S.sho#ld contin#e to avoid civilian cas#alties fro0 drone stri2es, 8#t drone critics 0#st alsorealie how al aeda #ses civilians as pawns for #nder0inin drone stri2es. So0e tho#htf#lcritics of .S. co#nterterroris0 operations in e0en with who0 we respectf#lly disaree,nota8ly ?reory Johnsen of >rinceton niversity++ and Jere0y Scahill of !he @ation 5altho#hthere are others6+/, cite drone stri2es as increas in the n#08er of AA> operatives in e0en.!he loic 8ehind this assertion appears horri8ly 8ac2wards. !he .S. deploys drones whereterrorist o N wea2 and failed states providin adeost article 8y S#darsan Rahavan, 9n e0en, .S. airstri2es 8reed aner, andsy0pathy for al-aeda,E+ and others 5see endnote for s#00ary6+( point to AA> propaanda

citin drones as 0otivation for terrorist recr#it0ent and in t#rn s#est this as :#stification forthe . S. ceasin the tactic N essentially deter0inin that if o#r terrorist ene0ies donGt li2e atactic we sho#ld stop p#rs#in it. 9f one wants to assess which co#nterterroris0 techni have all foc#sed their propagand a

ca0pains on eli0inatin the .S. a8ility to e0ploy niht raids and drones. Why do they foc#son these two tacticsM Beca#se niht raids and drones are the 0ost effective 0eans for deterrinthese ro#ps7 Bin 4aden ad0its this in his own internal doc#0ents capt#red in A88otta8ad.na8le to leverae effective co#nter drone operations, al aeda, the !ali8an and now AA>see2 to #se propaanda to enrae local pop#lations in hopes of interr#ptin this hihly effectiveco#nterterroris0 tool. 4ettin o#r adversaries 5AA>6 dictate o#r tactics sho#ld never 8e anoption.

No ris( o nuclear terror,ueller 1G5John, professor of political science at Ihio State, "al0in I#r @#clear Jitters,9ss#es in Science and !echnoloy, Winter, http%www.iss#es.or+(.+0#eller.ht0l6

>oliticians of all stripes preach to an an;io#s, appreciative, and very n#0ero#s choir when they,li2e >resident I8a0a, proclai0 ato0ic terroris0 to 8e the 0ost i00ediate and e;tre0e threatto lo8al sec#rity.E 9t is the pro8le0 that, accordin to Defense Secretary Ro8ert ?ates, c#rrently
http://www.issues.org/26.2/mueller.htmlhttp://www.issues.org/26.2/mueller.html


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2eeps every senior leader awa2e at niht. !his is hardly a new an;iety. 9n $*(, ato0ic 8o080a2er J. Ro8ert Ippenhei0er o0ino#sly warned that if three or fo#r 0en co#ld s0#le in#nits for an ato0ic 8o08, they co#ld 8low #p @ew or2. !his was an early e;pression of apattern of dra0atic ris2 inflation that has persisted thro#ho#t the n#clear ae. 9n fact, altho#he;pandin fires and fallo#t 0iht increase the effective destr#ctive radi#s, the 8last of aHiroshi0a-sie device wo#ld 8low #pE a8o#t $ of the city Gs areaOa traedy, of co#rse, 8#t not

the sa0e as one $'' ti0es reater. 9n the early $'s, n#clear physicist !heodore !aylorproclai0ed the ato0ic terrorist pro8le0 to 8e i00ediate,E e;plainin at lenth howco0paratively easy it wo#ld 8e to steal n#clear 0aterial and step 8y step 0a2e it into a 8o08.E

At the ti0e he tho#ht it was already too late to prevent the 0a2in of a few 8o08s, here andthere, now and then,E or in another ten or fifteen years, it will 8e too late.E !hree decades after!aylor, we contin#e to wait for terrorists to carry o#t their easyE tas2. 9n contrast to thesepredictions, terrorist ro#ps see0 to have e;hi8ited only li0ited desire and even less proress inoin ato0ic. !his 0ay 8e 8eca#se, after 8rief e;ploration of the possi8le ro#tes, they, #nli2eenerations of alar0ists, have discovered that the tre0endo#s effort re


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director of n#clear weapons research at 4os Ala0os 4a8oratories, has 0ade a si0ilar ar#0ent,pointin o#t that #rani#0 is e;ceptionally diffic#lt to 0achineE whereas pl#toni#0 is one ofthe 0ost co0ple; 0etals ever discovered, a 0aterial whose 8asic properties are sensitive toe;actly how it is processed. Stressin the da#ntin pro8le0s associated with 0aterial p#rity,0achinin, and a host of other iss#es,E o#ner concl#des, to thin2 that a terrorist ro#p,

wor2in in isolation with an #nrelia8le s#pply of electricity and little access to tools and

s#ppliesE co#ld fa8ricate a 8o08 is farfetched at 8est.E nder the 8est circ#0stances, theprocess of 0a2in a 8o08 co#ld ta2e 0onths or even a year or 0ore, which wo#ld, of co#rse,have to 8e carried o#t in #tter secrecy. 9n addition, people in the area, incl#din cri0inals, 0ayo8serve with increasin c#riosity and p#le0ent the constant co0in and oin of technicians#nli2ely to 8e locals. 9f the effort to 8#ild a 8o08 was s#ccessf#l, the finished prod#ct, weihina ton or 0ore, wo#ld then have to 8e transported to and s0#led into the relevant taretco#ntry where it wo#ld have to 8e received 8y colla8orators who are at once totally dedicatedand technically proficient at handlin, 0aintainin, detonatin, and perhaps asse08lin the

weapon after it arrives. !he financial costs of this e;tensive and e;tended operation co#ld easily8eco0e 0on#0ental. !here wo#ld 8e e;pensive e


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co#ld 8e daners in the chaos that wo#ld e0ere if a n#clear state were to #tterly collapse7>a2istan is frea2istan, the weapons wo#ld8e disasse08led. !he al aeda factor !hederee to which al aeda, the only terrorist ro#p that see0s to want to taret the nited States,

has p#rs#ed or even has 0#ch interest in a n#clear weapon 0ay have 8een e;aerated. !he$$ "o00ission stated that al aeda has tried to aca2istani n#clear scientists reportedly had with Isa0a 8in4aden and three other al aeda officials. >a2istani intellience officers characterie the

disc#ssions as acade0icE in nat#re. 9t see0s that the disc#ssion was wide-ranin andr#di0entary and that the scientists provided no 0aterial or specific plans. =oreover, thescientists pro8a8ly were incapa8le of providin tr#ly helpf#l infor0ation 8eca#se their e;pertise

was not in 8o08 desin 8#t in the processin of fissile 0aterial, which is al0ost certainly8eyond the capacities of a nonstate ro#p. Kalid Shei2h =oha00ed, the apparent planner ofthe $$ attac2s, reportedly says that al aedaGs 8o08 efforts never went 8eyond searchin the9nternet. After the fall of the !ali8an in +''$, technical e;perts fro0 the "9A and theDepart0ent of nery e;a0ined doc#0ents and other infor0ation that were #ncovered 8yintellience aencies and the 0edia in Afhanistan. !hey #ncovered no credi8le infor0ationthat al aeda had o8tained fissile 0aterial or aca2istani :o#rnalist, 9f the nited States #sesche0ical or n#clear weapons aainst #s, we 0iht respond with che0ical and n#clear weapons.

We possess these weapons as a deterrent.E ?iven the 0ilitary press#re that they were then#nder and ta2in into acco#nt the evidence of the pri0itive or 0ore pro8a8ly none;istentnat#re of al aedaGs n#clear prora0, the reported assertions, altho#h #nsettlin, appear at

8est to 8e a desperate 8l#ff. Bin 4aden has 0ade state0ents a8o#t n#clear weapons a few otherti0es. So0e of these prono#nce0ents can 8e seen to 8e threatenin, 8#t they are rather coy andindirect, indicatin perhaps so0ethin of an interest, 8#t not ac2nowledin a capa8ility. And asterroris0 specialist 4o#ise Richardson o8serves, State0ents clai0in a riht to possess n#clear

weapons have 8een 0isinterpreted as e;pressin a deter0ination to #se the0. !his in t#rn hasfed the e;aeration of the threat we face.E @orweian researcher Anne Stenersen concl#dedafter an e;ha#stive st#dy of availa8le 0aterials that, altho#h it is li2ely that al aeda centralhas considered the option of #sin non-conventional weapons,E there is little evidence that s#chideas ever developed into act#al plans, or that they were iven any 2ind of priority at thee;pense of 0ore traditional types of terrorist attac2s.E She also notes that infor0ation on an alaeda co0p#ter left 8ehind in Afhanistan in +''$ indicates that only T+,''' to T*,''' wasear0ar2ed for weapons of 0ass destr#ction research and that the 0oney was 0ainly for verycr#de wor2 on che0ical weapons. !oday, the 2ey portions of al aeda central 0ay well totalonly a few h#ndred people, apparently assistin the !ali8anGs distinctly separate, far larer, and

very tro#8leso0e ins#rency in Afhanistan. Beyond this tiny 8and, there are tho#sands of


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sy0pathiers and wo#ld-8e :ihadists spread aro#nd the lo8e. !hey 0ainly connect in 9nternetchat roo0s, enae in radicaliin conversations, and vario#sly dare each other to act#ally doso0ethin. Any threat,E partic#larly to the West, appears, then, principally to derive fro0 self-selected people, often isolated fro0 each other, who fantasie a8o#t perfor0in dire deeds.Lro0 ti0e to ti0e so0e of these people, or ones closer to al aeda central, act#ally 0anae todo so0e har0. And occasionally, they 0ay even 8e a8le to p#ll off so0ethin lare, s#ch as $$.

B#t in 0ost cases, their capacities and sche0es, or alleed sche0es, see0 to 8e far lessdanero#s than initial press reports vividly, even hysterically, s#est. =ost i0portant forpresent p#rposes, however, is that any notion that al aeda has the capacity to aca2istan in +''*% =a2e #se of that which isavaila8le X rather than waste val#a8le ti0e 8eco0in despondent over that which is not within

yo#r reach.E 9n fact, history consistently de0onstrates that terrorists prefer weapons that they2now and #nderstand, not new, e;otic ones. ?lenn "arle, a +/-year "9A veteran and once itsdep#ty intellience officer for transnational threats, warns, We 0#st not ta2e friht at thespecter o#r leaders have e;aerated. 9n fact, we 0#st see :ihadists for the s0all, lethal,

dis:ointed, and 0isera8le opponents that they are.E al aeda, he says, has only a handf#l ofindivid#als capa8le of plannin, oraniin, and leadin a terrorist oraniation, and altho#hthe ro#p has threatened attac2s with n#clear weapons, its capa8ilities are far inferior to itsdesires.E >olicy alternatives !he p#rpose here has not 8een to ar#e that policies desined toinconvenience the ato0ic terrorist are necessarily #nneeded or #nwise. Rather, in contrast withthe 0any who insist that ato0ic terroris0 #nder c#rrent conditions is rather li2elyO indeed,e;ceedinly li2elyOto co0e a8o#t, 9 have contended that it is h#ely #nli2ely. However, it isi0portant to consider not only the li2elihood that an event will ta2e place, 8#t also itsconsehD and Director of !erroris0 St#dies and an associate professor at the nited States =ilitary Acade0y,Lra0ewor2 for Analyin the L#t#re !hreat of W=D !erroris0,E Jo#rnal of Strateic Sec#rity, Col#0e , @#08er *, Article ,Winter +'$+,http%scholarco00ons.#sf.ed#civiewcontent.ciMarticle[$$/&conte;t[:ss6 @I!---"BR@ weapon [ che0ical,8ioloical, radioloical or n#clear weapon
http://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=1193&context=jsshttp://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=1193&context=jsshttp://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=1193&context=jss


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!he terrorist ro#p wo#ld additionally need to consider whether a W=D attac2 wo#ld 8e

counterproductive 8y eneratin, for e;a0ple, condemnation a0on the ro#p3s potential

s#pporters. !hispossi8le erosion in s#pport, in t#rn,wo#ld degrade the ro#p3s political

legitimacya0on its constit#encies, who are viewed as critical to the ro#p3s lon-ter0 s#rvival. By crossin this

W=D threshold, the ro#p co#ldfeasi8ly #nder0ine its pop#lar s#pport, enco#rain a

perception of the ro#p as deranged mass murders , rather than rihteo#s van#ards of a

0ove0ent or warriors fihtin for a leiti0ate ca#se.$( !he i0portance of perception and pop#lar s#pportOor at least toleranceOives a ro#p reason to thin2 twice 8efore crossin the threshold ofcatastrophic

terroris0. A neative perception can impact a 8road rane of critical necessities, incl#din

inances , sae haven , transportation loistics, and recruitment .=any terrorist ro#ps

thro#ho#t history have had to learn this lesson the hard way7 the terrorist ro#ps we worry a8o#t 0ost todayhave learned fro0 the fail#res and 0ista2es of the past, and ta2e these into consideration in

their strateic deli8erations. L#rther0ore, a W=D attac2 co#ld prove counterproductive 8y

provo2in a overn0ent5or possi8ly 0#ltiple overn0ents6 to sinificantly e;pand their efforts to destroythe terrorist ro#p. Lollowin a W=D attac2 in a de0ocracy, there wo#ld s#rely 8e a reat dealof do0estic press#re on elected leaders to respond


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:N adv

An oversight court is a rubber stamp8 their cards are about liability %in absentia ailsBloomberg 1Pditors, Why a FDrone "o#rtG WonGt Wor2,E Le8 $),http%www.8loo08er.co0news+'$/-'+-$)why-a-drone-co#rt-won-t-wor2.ht0lQ

S#ch a syste0 wo#ld ostensi8ly have two 8enefits% increasin the leiti0acy of the drone warand placin a chec2 on the e;ec#tive 8ranchGs power to decide life and death. @n closere/amination8 both advantages prove illusory7KLirst, few o#traed >a2istanis wo#ld 8eass#aed 8y the distinction of:#dicial scr#tiny, and civil li8ertarians wo#ld point o#t that thetaret is never iven a chance to 0a2e a case 8efore the :#de . !his lac2 of an adversarialsettinE for the s#8:ect 0iht 8e defensi8le in the case of L9SA warrants, 8#t the sta2es here arefar hiher than a si0plewiretap.As for the 8alance of powers, that is where we dive into

constit#tional hot water. "onstit#tional scholars aree that the president is sworn to #se hisdefensive powerE to protect the .S. and its citiens fro0 any serio#s threat, and nothin in the"onstit#tion ives "onress or the :#diciary a riht to stay his hand. 9t also presents a slipperyslope % 9f a :#de can call off a drone stri2e, can he also ni; a raid s#ch as the one that 2illedIsa0a 8in 4adenM 9f the other 8ranches want to scr#tinie the presidentGs national sec#ritydecisions in this way, they can only do so retrospectively. !here is also a h#0an pro8le0% Lew

:#des wo#ld 8e eaer to find the0selves in this role. !hatGs not the 8#siness of:#des,E Ja0esRo8inson, a for0er federal appeals :#de, told the Washinton >ost, to sin a death warrant forso0e8ody who is on forein soil.E !hose who didwo#ld face s#ch tre0endo#s press#re to side

with the overn0ent that the process wo#ld pro8a8ly 8eco0e a rubber stamp . And why

e;actly do we thin2 a :#de is any 8etter s#ited to discernin terrorist threats than seniore;ec#tive 8ranch officialsM There is an alternative, al8eit a so0ewhat #nsatisfyin one%

Congress could create a cause o actionE that wo#ld ive the fa0ilies of those 2illed thea8ility to see2 da0aes. "learly, no a0o#nt of 0oney is oin to 0a2e #p for a wronf#l death.B#t, as Stephen 9. Cladec2 of A0erican niversityGs law school points o#t, the threat of potentiallia8ility 0iht 0a2e an ad0inistration that 0#ch 0ore caref#l in decidin 8oth the i00inenceof the threat and the feasi8ility of capt#re as an alternative. Altho#h any s#it wo#ld pro8a8lyhave to 8e heard in secret for national-sec#rity reasons, it would aord a layer o .udicialscrutiny to government actions8 and would allow a lawyer to ma(e an adversarialcase on behal o the target 7K!his sort of e; post facto acco#nta8ility wo#ldnGt end thecontroversy over drone attac2s. @or wo#ld it s#8stit#te for reater transparency on the part ofthe ad0inistration toward the p#8lic and the relevant conressional co00ittees. Lor anad0inistration thatGs slowly losin the hearts-and-0inds 8attle, however, such trials wouldprovide a bit o much-needed legitimacy7

>DR$ norms are ignored&osner 1Gric >osner is a professor of 4aw at the niversity of "hicao, JIH@ =. I49@ 4AW &"I@I=9"S WIRK9@? >A>R @I. /, Septe08er +'$', 1H#0an Rihts, the 4aws of War,and Reciprocity1, http%www.ericposner.co0H#0an+'Rihts,+'the+'4aws+'of+'War,+'and+'Reciprocity.pdf


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@either approach


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. >olicy Ar#0ents Aainst @onself-;ec#tion Declarations% !he 9nternational 90plicationsReardless of whether the constit#tional ar#0ents aainst nonself-e;ec#tion declarations pass0#ster, the practice of attachin the0 to h#0an rihts treaties is an integral part o the

blatantly protectionist :7S7 oreign policy on human rights. n*$) Ro#tinely #sinnonself-e;ec#tion declarations co00#nicates to other nations that the nited S tates does notta2e its international h#0an rihts o8liations serio#sly eno#h to allow the0 to ta2e effect as

do0estic law. n*$ 9t also #nder0ines the forein policy :#stifications for ratifyin h#0an rihtstreaties in the first place - 0ost f#nda0entally, the 0otivation to serve as an e;a0ple to othernations . n*+' @onself-e;ec#tion declarations render the h#0an rihts treaties to which they areattached empty promises8 8eca#se the ter0s of those treaties do not effect any chane in .S.do0estic law. n*+$ !he nited S tates th#s P+$Q is seen 8y other nations as see2in the 8enefitsof h#0an rihts treaties - 0ost i0portantly, 0e08ership in the oraniations that oversee the0-witho#t ass#0in any of the 8#rdens. n*++ !he practice of #sin nonself-e;ec#tiondeclarations reflects an attit#de that h#0an rihts treaties are only for other nations, not for thenited States. n*+/ !he .S. forein policy on h#0an rihts promotes a double standard,

where8y the nited States see2s to enforce international h#0an rihts law aainst other nations8#t is #nwillin to have its own practices s#8:ected to international re#lation and scr#tiny.n*+* In one hand, the nited States P++Q played a leadin role in esta8lishin the nited

@ations and draftin the DHR and other h#0an rihts treaties. n*+ 9t also fre


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$aw doesnLt chec( use o orce - underlying interests outweigh&osner 1;ric >osner is a professor of 4aw at the niversity of "hicao, =arch /, +'$*, 1KRA9@ A@D!H 49=9!S IL 9@!R@A!9I@A4 4AW1, http%ericposner.co0#2raine-and-the-li0its-of-international-law

>eter Spiro 5andor so0eone else operatin the Ipinio J#ris twitter acco#nt6 acc#ses 0e ofloatinE a8o#t the 0ilitary intervention in 2raine, 8ein a realist,E co00ittin so0ethincalled the perfect co0pliance fallacy,E and 8elievin that international law is a chi0era.E !heseacc#sations are false.J#lian K# and ri2 Coeten have already provided partial re8#ttals. Lor the record, here are 0y

views%$. 9 a0 not a realistE in the political science sense. 9 8elieve that co#ntries cooperate when theycan achieve 0#t#al ains7 that cooperation can 8enefit fro0 sophisticated instit#tional

arrane0ents7 8#t that cooperation 0#st 8e self-enforcin, 0eanin that it must be in the

individual interest o the relevant countries not to deect fro0 their arrane0ents

5what econo0ists so0eti0es call the participation constraintE6.Altho#h few 5al8eit an

increasin n#08er6 law professors ta2e this approach to international law, many5altho#h

certainly not all or even 0ost6 political scientists do . Realis0, as 9 #nderstand that ter0,

e0phasies sec#rity co0petition a0on co#ntries7 it has little val#e for #nderstandininternational law.+. Spiro is riht that yo# canGt infer anythin fro0 a sinle data point if thatGs what he 0eans 8ythe perfect co0pliance fallacy.E However, 9 never said that 8eca#se R#ssia violatedinternational law in 2raine, international law is a chi0era.E @or did 9 say anythin that co#ld

8e constr#ed in s#ch a way.=y writins a8o#t international law have 8een devoted to e;plainin it, not denyin that it e;istsli2e the 0ythical 8east invo2ed 8y Spiro. However, 9 a0 0ore s2eptical than 0ost internationallaw scholars, who are fre


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$egal restrictions on orce are meaningless - :(raine proves*u 1;J#lian K# is a professor at Hofstra niversity School of 4aw, Ipinio J#ris, =arch +, +'$*,1R#ssia Re0inds the World 5and 9nternational 4awyers6 of the 4i0its of 9nternational 4aw1,http%opinio:#ris.or+'$*'/'+#2raine-r#ssia-international-law-overnin-#se-force

9 aree with >eter that the 0ere 8reach of the international law overnin the #se of force doesnot 0ean that all international law is #seless and 0eaninless. B#t 9 donGt thin2 ric >osnerGspithy challene to the international law acade0y on 2raine can 8e so easily dis0issed.9nternational lawyers need, especially in this area, to provide a 0eaninf#l theory as to why

international law affects state 8ehavior, and why 5as in this case6 it seems to be having very

little impact on Russias decision to use armed orce in :(raine . "ontra >eter, the

fact that so0eti0es constit#tional or corporate law r#les are inored or violated doesnGt reallyanswer the osner, as to

how international law really wor(s . Rational choice fol2s thin2 that international law

wor2s 8est 5in fact, wor2s at all only6when states have a rational self-interest to cooperate

aro#nd certain leal nor0s and instit#tions. B#t where states no longer have such a

rational sel interest8 states will depart rom those legal norms . Compliance with

international law or the sa(e o complying with international law is naive and

unrealistic7

!he R#ssia-2raine crisis also impacts real-world policyma(ing . 9f international law, or at

least the "harterGs r#le on the #se of force, is very wea2 or non-e;istent as a tool for restrainin

state action, then policyma(ers should not rely on the Charter r#le as meaningul

protection against aggression7A stron 0ilitary or a networ2 of alliances wo#ld pro8a8ly have 8een a 8etter idea. States

must not overestimate the impact or force of this species o international law5as

2raineGs new overn0ent see0ed to do6 when ma(ing decisions7 And states li2e the

nited States sho#ld 8e caref#l incorporatin this r#le into its do0estic leal processes, or over-privilein its role in its own do0estic p#8lic de8ate.9 0ay 8e 8iased as an A0erican, 8#t the .S. has a8o#t the riht 8alance on this. 9t does notinore the "harter, 8#t it does not treat the "harter as havin too 0#ch independent


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sinificance e;cept to the e;tent it affects the actions of other states 5especially its allies6. !he2ey thin to foc#s on in this crisis are the interests of the different states 5and leadin ro#ps

within states6. State interests are driving actions here , and the "harter violation see0s

to 8e doin al0ost now wor2.

!he fact that the Charter is plainlybeing violated will not necessarily 0ean that "harter

proponents li2e Lrance and ?er0any will et to#h with R#ssia 5in fact, 8oth are oin the otherway 8y opposin sanctions or any @A!I cons#ltations6. !he fact that the "harter is plainly8ein violated will not 0ean "hina 5another 8i "harter proponent6 will do anythin other thanclosely watch develop0ents and #rin all sides to co0ply with international lawE witho#tna0in any co#ntry.

:N ailsAnderson 125Kenneth Anderson is a professor of international law at Washinton "ollee of4aw, A0erican niversity, Washinton, D."., and a visitin fellow at the Hoover 9nstit#tion. Hespecialies in international law, h#0an rihts and the laws of war, as well as international

8#siness law, international develop0ent, and not-for-profit law. Before :oinin the A0erican

niversity law fac#lty, he was fo#ndin director of the H#0an Rihts Watch Ar0s Division andlater eneral co#nsel to the Ipen Society 9nstit#teSoros Lo#ndations., ++'$+, 1Why Doesthe @ Still ;istM1, www.hoover.orp#8licationsdefinin-ideasarticle$+/*$6

What e;actly is the nited @ations and, for that 0atter,why is there still a nited @ ations at allMHow has it 0anaed to s#rviveover ti0e, fro0 $* down to the presentOgiven its long record ounderperormance8 re)uent outright ailure8 and even more re)uent irrelevanceM In thenited @ationsG core iss#esOcollective peace and sec#rity, develop0ent, and#niversal h#0anval#esand rihtsOits record ismediocre, #nless one co#nts sheer instit#tional persistence as eno#h. And that record isparticularly poor concerningthe iss#e fro0 which the collective spran in $*% international peace andsecurity thro#h the collective itself. Why, then, has not the r#thless evol#tionary loic of history pr#ned it as a failedinstit#tional saplin in a relentlessly co0petitive forest, as the 4ea#e was pr#nedM !he te;t8oo2s in international law andoraniations provide one set of answers to acco#nt for the persistence of the nited @ations. !hey tell #s the heroic story of thenited @ationsG fo#ndin in $* and the first 0eetins in San Lrancisco7 leanor Roosevelt et al. !hey tell #s a8o#t the efforts ofthe Second World War Allies to create an oraniation that wo#ld 8e a8le to esta8lish tr#e collective sec#rity and avoid the fatalOand predicta8leOerrors of international oraniations that yielded, a0on other thins, the failed 4ea#e of @ations and the na\veKello-Briand >act. !hey descri8e the present-day oraniation as an atte0pt to provide lo8al overnance in a recalcitrant world.!hey tend, a8ove all, to tell a proressive 0oral historyOWhi historyEOof advances toward reater and 8etter international orderthro#h international law and oraniations. Acco#nts fro0 the field of international relations tend to 8e 0ore s2eptical, 8#t theirs2epticis0 co0es typically fro0 a realist perspective. !he s2epticis0 is descriptive rather than nor0ative. !hese international-relations acco#nts do not necessarily challene the nor0ative oals of the nited @ations and international order 8#t instead note:#st how diffic#lt the tas2 is and the li0ited s#ccess the instit#tion has had. B#t descriptive and nor0ative acco#nts of the nited@ations, s#ccesses and fail#res, seen fro0 the o#tside are not the only acco#nts that 0atter. Ine wo#ld et a rather differentperspective on the nited @ations than either of these 8i-pict#re e;ternal acco#nts 8y per#sin the instit#tionGs finances. Lor those5few6 willin to delve into its internal 8#det, 0anae0ent, fiscal control, acco#ntin, 0anaerial str#ct#res, and la8or relations, astri2in oraniational 8east e0eres. !he oraniationGs priorities are 0irrored in its 8#dets and fiscal str#ct#res that allocate itsreso#rces. !his is a pict#re of the nited @ations characteried 8y rent-see2in and so0eti0es o#triht corr#ption, lac2 of fiscaldiscipline or control, and a chief e;ec#tive officer, the secretary-eneral, who has no e;act idea how 0any people wor2 for hisoraniation. !hese are not facts that 0any e;perts on @ diplo0acy choose to pay 0#ch attention to. Rather, the diplo0ats oftenfind the0 tireso0e when forced on their attention, for they distract fro0 the rand iss#es of diplo0acy and international law that

0a2e the nited @ations e;citin. !he international-relations specialists find that they distract fro0 acco#nts of power relationsa0on states at the nited @ations. B#t they are s#rely relevant, too, in esta8lishin the ter0s of S-@ relations. et none of theseacco#nts of the nited @ations, #sef#l and interestin tho#h each 0ay 8e, provides 0#ch of a 8asis for #idin the nited States inits dealins with the nited @ations. !hat re


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nited @ationsG leiti0acy and how the pec#liar li0its of that leiti0acycontribute to theinstitutions most persistent large-scale eature#paralysis, a very partic#lar 2ind of paralysis, to 8e s#re,8eca#se it consists of 0archin, constant 0archin, 8#t 0archin in place. "all it i00o8ilit] perp]t#elle. !he nited @ationsconsists of deep contradictions. =ore e;actly, the nited @ations consists of antino0iesOprofo#nd, connected opposites that are8a2ed intoE the instit#tionGs str#ct#re, history, incentives, and 0otivations. !he nited @ations is an independent instit#tion withindependent lo8al clai0s to overn7 the nited @ations is a 0ere instr#0entality of the 0e08er states. !he nited @ations is aninstit#tion 8ased aro#nd the soverein e


40/89

platonic nited @ations co#ld 8e fo#nd definitively wantin. !he persistence of lo8al h#nerM9nevita8ly it 0eans we 0#st co00it ever 0ore deeply to the nited @ations and ive 0ore to its develop0ent prora0.Ano#t8rea2 of epide0ic diseasesweeps the planetM "learly, we need to invest 0ore in @ aencies and sho#ld have done soearlier. @#clear war 8rea2s o#t 8etween reional powersM !h e pro8le0 0#st s#rely have 8een thatins#fficient e0phasis was placed on enae0ent thro#h the nited @ationsG 0#ltilateraldisar0a0ent and n#clear nonproliferation neotiations. The : nited N ations always remains

the deault answer 8 no matter what the )uestion and no matter how badly its own ailurescontributed to the problem7 > it is somehow not the answer or today8 then certainly it isthe answer or tomorrow. And even if it is not the answer riht now, we sho#ld act as tho#h it were in order that it 0ay8eco0e the answer for to0orrow. Lor so0e people, this is a eneral proposition, directly an article of faith a8o#t lo8al overnanceand the nited @ations as its historical vessel. Ithers 0aintain that they have an open 0ind, and so the nited @ations 0iht notnecessarily 5as a 0atter of historical necessity6 8e the answer to lo8al coordination. B#t so0ehow, there t#rns o#t to 8e nothin infact that co#ld alter their co00it0ent to the instit#tion, 8eca#se of what it represents for the f#t#re or, at least 0ini0ally, 8eca#se italways t#rns o#t to 8e the hypothesied least-8ad alternative. !he first is straiht-#p @ platonis07 the second is a f#nctional,

constr#ctive @ platonis0. However one ets there, the final res#lt is the sa0e.=uture possibilitieshold the present hostage8 and so every ailure must inally be e/cused7 @o 0atter what the


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2NC


42/89

C&


43/89

overview

C& is a ma.or8 clear reversal o administration policy % their evidence is describinge/ecutive eorts to maintain e/isting policy through minor reorms li(e whitepapers % undamentally not the Cthats odds

C& is suicient#(ey lin(s to the a involve restraining drone stri(es and ensuringaccountability or both stri(es7 rone court does that by having .udicial oversight8the C& does that by ensuring that "R@N can review means procedures andresults#as(al says that ensures continuous review8 minimi0es error8 andlegitimates the program


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ue process

Solves due process signal while avoiding the net beneits=i2e reyuss, >h.D. in J#rispr#dence, Jan +'12, @I!% =y Lellow A0ericans, We Are?oin to Kill o#% !he 4eality of !aretin and Killin .S. "itiens A8road, ( Cand. 4. Rev.+*

!he cr#; of the 0atter is what process is d#e to a .S. citien 8efore he can 8e 2illed in 0ilitarystri2es 8y his own overn0ent in response to his role in plannin and cond#ctin 0ilitaryoperations aainst the nited States. Lirst and fore0ost, the .S. citien is entitled to a ne#traldecision0a2in process. n+/ !his need not ta2e the for0 of a trial in an Article 999 co#rt. n+/)Rather, the e/ecutive can create a neutral decisionma(ing body within an agencyor purposes o determining whether a :7S7 citi0en will be (illed. n+/ Thisunction could be served admirably8y the JA? "orps or a si0ilar oraniationwithinthe e/ecutive branch.!he first deter0ination this ne#tral 8ody will have to 0a2e in all instances is the proposedtaret3s co08atant stat#s and his level of participation in the operations aainst the nited

States. !he decision0a2er will have to deter0ine whether the person tareted for 2illin is alawf#l or #nlawf#l co08atant, a civilian 5which a#to0atically 8ars the taretin of thatindivid#al for 2illin6, or one P+'Q of the 0any proposed hy8rids. n+*' 9f the decision0a2erfinds that the proposed taret is actively participatin in 0ilitary operations aainst the nitedStates, then it can 0ove on to the ne;t stae of its decision0a2in. Itherwise, the taret wo#ldnot 8e lawf#l. n+*$Ince the decision0a2er deter0ines that the taret is lawf#l, .S. citien tarets 0#st 8e p#t onnotice that their lives will 8e forfeited if they fail to t#rn the0selves over to the a#thorities. n+*+Ince the overn0ent provides notice, the decision0a2er can decide the s#fficiency of thisnotice, which sho#ld e08race the totality of the circ#0stances. 9f notice is s#fficient, then theprocess can contin#e. 9f there has not 8een s#fficient notice, then the overn0ent 0#st provideadditional notice. n+*/

Havin deter0ined that the .S. citien is a lawf#l taret with s#fficient notice, thedecision0a2er then will eval#ate the citien3s a8ility to choose to e;ercise his rihts to availhi0self of the co#rt syste0. 9f the decision0a2er finds that the taret has the a8ility to choose

what he will do and has decided not to e;ercise his rihts, then the process can contin#e.@e;t, it falls on the decision0a2er to eval#atewhether or not it is possi8le to capt#re theindivid#al. n+** !his part of the inrocess"la#se dictates these proced#res. !he proced#res ens#re a :#st deter0ination of the taret3s


45/89

per0issi8ility as a 0ilitary 0atter and the s#8:ective intent of the taret not to avail hi0self ofthe f#rther protections to which he is entitled as an A0erican citien. A ne#tral decision0a2ersho#ld 8alance the tareted citien3s life aainst the ris2 he poses. 9f the decision co0es o#taainst hi0, then the 0ilitary 0ay la#nch a stri2e.

/ecutive review processes solve the aAfsheen John Radsan, Willia0 =itchell "ollee of 4aw, and Richard W. =#rphy, !e;as !echniversity School of 4aw, +''?, D#e >rocess and !areted Killin of !errorists, ,papers.ssrn.co0sol/papers.cf0Ma8stract^id[$/*/

et as a practical matter8 the .udicial role:#st identified is vanishingly small. J#stice!ho0as is s#rely correct that the e;ec#tive 0#st do0inate decisions a8o#t who lives and dies in

war. This ma(es e/ecutive sel-control all the more important Oand leads to o#r

second clai0. D#e process is everywhere. Lor a cent#ry, de8ate has 8#88led over the e;tra-territorial reach of the "onstit#tion./' !he loic of Bo#0ediene Fs five-:#stice 0a:ority opinion is

that the D#e >rocess "la#se 8inds the e;ec#tive worldwideOfro0 Alas2a to Vi08a8we./$ !hisd#ty e;ists even for 0atters that cannot or sho#ld not 8e s#8:ect to sinificant:#dicial control7the e;ec#tive 0#st o8ey the "onstit#tion even if no co#rt is in a position to say so. Honorin thiso8liation re


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Transparency

Transparency is .ust as eective as the aSCR 135Sec#rity "o#ncil Report 5S"R6 is an independent not-for-profit oranisation. 9t wasfo#nded on the 8elief that consistent, 8alanced, hih-


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atO lin(s to politics

@nly Congressional moves to reclaim war power authority triggersthe war power and politics disad

Willia0 Dowell, Sydney Stein professor in A0erican politics at the niversity of "hicao,?E$/, All Syria >olicy 9s 4ocal,www.foreinpolicy.co0articles+'$/''/all^syria^policy^is^local^o8a0a^conressMpae[f#ll

Lro0 a political standpoint, see2in conressional approval for a li0ited 0ilitary stri2e aainstthe Syrian rei0e, as >resident Barac2 I8a0a on Sat#rday anno#nced he wo#ld do, 0ade lotsof sense. And let3s 8e clear, this call has everything to do with political considerations,and close to nothin to do with a newfo#nd co00it0ent to constit#tional fidelity.!he first reason is e0inently local. I8a0a has proved perfectly willin to e;ercise 0ilitary force

witho#t an e;press a#thoriation, as he did in 4i8ya -:#st as he has e;panded and drawn down0ilitary forces in Afhanistan, withdrawn fro0 9ra


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0e08ers of "onress can fi; the 0edia3s attention -and with it, the p#8lic3s -on the costs of war,which can have political reperc#ssions 8oth at ho0e and a8road.!hin2, then, a8o#t the stated reasons for so0e 2ind of 0ilitary action in Syria. @o one is #nderthe ill#sion that a short, tareted stri2e is oin to overt#rn the Assad rei0e and pro0ptlyrestore so0e se08lance of peace in the reion. 9n the short ter0, the stri2e 0iht act#allye;acer8ate and prolon the conflict, 0a2in the event#al o#tco0e even 0ore #ncertain. And

even the 8est-planned, 0ost-considered 0ilitary action won3t o e;actly accordin to plan.=ishaps can occ#r, innocent lives 0ay 8e lost, terrorists 0ay 8e e08oldened, and anti-

A0erican protests in the reion will li2ely flare even hotter than they c#rrently are.!he core ar#0ent for a 0ilitary stri2e, however, centers on the i0portance of strenthenininternational nor0s and laws on che0ical and 8ioloical weapons, with the hope of deterrintheir f#t#re deploy0ent. !he Assad rei0e 0#st 8e p#nished for havin #sed che0ical

weapons, the ar#0ent oes, lest the ne;t a#tocrat in power considerin a si0ilar co#rse ofaction thin2 he can do so with i0p#nity.B#t herein lies the doubt it7Havin one to "onress on this crisis, 0#st he do so on every f#t#re oneM @o."onsistency is hardly the hall0ar2 of 0odern presidents in any policy do0ain, and certainly not

0ilitary affairs. So0eti0es presidents see2 "onress3s approval for 0ilitary action, other ti0esthey reartisans and political co00entators will point o#t the inconsistencies,

8#t their o8:ections are li2ely to 8e drowned o#t in r#sh to war.@bamaLs decision does not usher in a new era o presidential power, nor does itper0anently re0a2e the way we as a nation o to war. >t relects a temporary politicalcalculation-and in 0y view, the riht one -of a president in a partic#larly to#h spot. Laced

with a larer war he doesn3t want, an i00ediate crisis with few ood options, and ye

legal restraints k

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