Eugene Volokh's Blog, page 2647
December 20, 2011
Johnson Goes Libertarian
Former New Mexico Governor Gary Johnson has decided to drop out of the GOP primaries and run for President as a Libertarian. (You didn't know Johnson was running for President? Didn't you see him in all the debates? Oh . . wait, the two-term former governor didn't get to participate.)
Standards of Review in Patent Law: A Comment on Kappos v. Hyatt
In Kappos v. Hyatt, to be argued on January 9th, the Supreme Court will consider the standards of review in Section 145 patent proceedings brought in federal district court. You can read Ronald Mann's preview of the case here at SCOTUSBlog. As it happens, I wrote a law review article on patent law standards of review relatively early in my career that discusses Section 145 standards of review in some detail — and that suggests how the Court should rule in Hyatt. The article is Rethinking Patent Law in the Administrative State, 42 William & Mary Law Review 127 (2000). Although I haven't written in patent law for a while, I thought I would blog my thoughts about the Hyatt case and the broader issues it raises.
In my view, the key to understanding Hyatt is recognizing that the regulatory model used by the patent system predates the administrative state. The patent system adopts the model of a unilateral contract offer, not of the modern delegated discretion model that became popular starting in the late 19th Century. Specifically, the patent system promotes progress in the useful arts by trying to incentivize inventions through an offer: Anyone who files a patent application that satisfies the requirements of patentability gets the property right of a patent for a particular period of time. This is essentially a unilateral contract offer, in which the desired conduct is acceptance of the offer by creating an invention and filing a patent claim about it. Notably, this regulatory mechanism is very different from the administrative-law regulatory model. The administrative-law regulatory model works by delegating some amount of substantive lawmaking power to the agency, and then letting the agency regulate in its area of delegated discretion. Patent law is different: Congress hardwired in the specific standards of patentability (subject to judicial interpretation) instead of delegating power to the Commerce Department to go off and regulate inventions.
Why does this matter for patent law standards of review? It matters because the standards of review that make sense in the context of regulatory scheme that harnesses the dynamic of a contract offer are very different from the standards of review that make sense in the context of delegated power to an agency. When Congress delegates regulatory power to an agency, it has to provide for deferential review: Standards of review distribute power, and if you want to give an agency power you need to defer to its decisions within that zone of power. But the proper standards of review for a regulatory scheme that harnesses the dynamic of a contract offer are (and should be) different.
To see why, we need to understand the close analogies between patent law actions and traditional contract disputes. The standards of patent law define the terms of an offer by the government, expressed as a unilateral contract offer to the public: The filing of a successful patent application constitutes acceptance of the offer. Of course, the trick is that the patent application may or may not satisfy the standards of patent law; in a contractual sense, it may or may not constitute an acceptance. If the government agrees that its offer was accepted, it is contractually entitled to issue the patent. But if the government contends that its offer was not accepted, the government will decline to issue the patent because no contractual obligation exists. The important idea is that the patent office acts as the agent of the offeror: Its judgment that a patent must or must not be issued should be understood as the judgment of an offeror that his unilateral contact offer has or has not been accepted.
That brings us to Section 145 actions, the subject of the dispute in Hyatt. Section 145 states in relevant part:
An applicant dissatisfied with the decision of the Board of Patent Appeals and Interferences . . . may, . . . have remedy by civil action against the Director in the United States District Court for the District of Columbia . . . . The court may adjudge that such applicant is entitled to receive a patent for his invention, as specified in any of his claims involved in the decision of the Board of Patent Appeals and Interferences, as the facts in the case may appear, and such adjudication shall authorize the Director to issue such patent on compliance with the requirements of law.
The contract analogy is easy to see, I hope: Section 145 actions are just breach of contract disputes. The applicant thinks that he has accepted the offer; the government says he hasn't. The applicant therefore can file a breach of contract action in the District Court seeking the remedy of specific performance of the contract. The standard of review for a Section 145 action therefore should be the same as the standard of review in a contract law dispute: The review should be de novo, in light of all the available evidence. As I wrote in my article:
Patent law and contract law . . . traditionally offer matching de novo standards of review to findings of fact. Until recently, successful patent applicants were entitled to bring plenary actions against the patent office in United States District Court. Such suits were styled "bills in equity" during the nineteenth century, much like analogous breach of contract suits seeking specific performance from offerors. Congress later codified the right to a de novo trial at 35 U.S.C. § 145. Section 145 permits "dissatisfied" applicants to bring a civil action against the Commissioner of the PTO in the United States District Court for the District of Columbia, and authorizes the court to "adjudge that such applicant is entitled to receive a patent for his invention." Although applicants can waive their rights to review under Section 145 by bringing a Section 141 suit directly before the Federal Circuit, Section 145 historically permitted applicants to sue the PTO in district court in a de novo action that proceeds afresh without any deference to the PTO's findings of fact or interpretations of law.
The courts' de novo review of the PTO's factual findings are mirrored by the de novo review that courts give to offerors' factual claims in breach of contract disputes. Consider the Brooklyn Bridge dispute between A and B [in which A says that he'll pay anyone $100 if they walk across the Brooklyn Bridge, and B goes across the bridge and demands the money]. A claimed that B jogged across the bridge, and B insisted that he walked. The reviewing court would not defer to A's view, accepting A's belief that B jogged unless it was "clearly erroneous" or "unsupported by substantial evidence." Instead, the court would make independent factual findings and then resolve the dispute based on its own view of the facts.
And this is backed by a very good policy reason that is at the heart of patent law: You're less likely to invest a lot of your time and money trying to accept a unilateral contract offer if you know a court won't enforce the contract if the offeror denies your claim. Rather, if you're going to make that investment, you want to know that a court will enforce the contract and give you the benefit you're entitled to receive. And the whole point of patent law is to encourage people to make that investment: The point of the law is to induce the kind of valuable research that leads to new inventions that will benefit the public. So to make the patent system work best, applicants should be able to seek de novo review of the rejection of their application in the district court in Section 145 actions.
This is just a general sketch of the argument, and just one application of a broader point. For more details, read the article itself.
A Couple of Other Good Reads on Drones and Targeted Killing
While I am thinking about drones — and, like Orin, stalling on my exam grading — let me add two drone and targeted killing links.
The first is a Wall Street Journal news article by Adam Entous and Julian Barnes, on debates in Washington (and beyond) on whether (and if so what kinds and capabilities) drones should be sold to NATO allies (e.g. Italy or Turkey), and other allies and not-so allies (e.g., Gulf states). It is an important article that, like others from the WSJ national security team, distills a lot of lengthy research and background investigation.
The article also raises a question I have sometimes addressed in blog posts — is the US triggering an arms race in drones? As I've said repeatedly, drone technology has the following conceptual parts: flying, computer hardware and software, weapons (if weaponized), sensors, and the communications link. Of these, flying is the easiest and triggers no arms race because over the next few years or decades, everyone will do it, with widespread application in civil aviation. The weapons can be difficult to duplicate — if one cares especially about discrete applications of force, minimizing collateral damage, otherwise it's not so hard to stick a missile on a drone. Sensors — in their ramifying complexity, different kinds of sensors, plus the computer and software integration — are the most difficult part of the drone; this might trigger a race to reverse engineer US technology, but it isn't really an arms race; these sensors will be developed for many non-military purposes anyway. The communications link is the weak link of a drone — it might be hijacked, broken, or otherwise attacked, and an arms race is likely to develop that crosses robotics with cyber in the development of defenses and counters to comm link weaknesses.
So I'd say that the US has an interest in maintaining its advantages while it can — but this will not revolve around "drones" in the flying machine sense, but instead other technological parts of drones. There is room here for intelligent tinkering with export controls — but with respect to advanced sensors, software, and cyber-comm parts of the drone, and likely advanced weaponry, as well. The real drones arms race, in a military sense, is much more likely to be over the question of protecting or attacking drones in the air — stealth technologies, communications link weaknesses, the stuff that makes them vulnerable or protects them from attack.
The second article appeared today in the Washington Post, by Karen DeYoung. It features many very interesting interviews (the most interesting are unsourced and background; given the topic, one understands why). It walks through the current state of the several drone warfare programs conducted by the US. The article is particularly focused in the question of the secrecy of the drone programs, however, and the government's refusal to acknowledge them under rules of covert programs.
I am quoted several times in the Washington Post article, mostly for the proposition that the Obama administration needs to be more forthcoming on the legal and policy basis that it sees undergirding these programs, in both international and domestic law. The quotes are accurate and certainly reflect my view, but I would like to add some additional context. I call for greater transparency, but do not think I mean it in the way that most of the advocacy and human rights activists mean it.
For many of the critics, in my view, the call for transparency might be genuine — but it is also a stalking horse for a much broader agenda to curtail targeted killing and drone warfare as the Obama administration has conducted it. Since secrecy is a crucial element of success in such programs, calls for decreased secrecy might sound like — and indeed be sincerely meant — a call for increased transparency in order that outsiders can judge lawfulness. But objectively speaking, intended or not, the result would be to increase the flow of information to the potential targets of the programs and their supporters. I'm quite willing, and have said many times, that there is a balancing to be made here, and sensible observers have started by saying, tell us the legal justification, not the facts in particular cases. As others have noted, it doesn't really work that way as a process of legal reasoning — these determinations are highly fact specific, casuistical, and facts and law can't be prised apart in this way.
But okay, there is surely more that can be said, even within a necessary balancing — a balancing, however, that belongs to the US government and its constitutional processes, and should be limited to political branch oversight, in my view. Even with that, however, I see very little evidence that most of the advocacy groups would actually be happy with transparency as such. The real objective is to curtail the programs, particularly as conducted by the CIA; it would be disingenuous to hide the ball on that objective.
Since I think the programs, including those conducted by the CIA, are the single greatest contribution of the Obama administration to national security policy — counterterrorism on offense — my reasons for calling for greater transparency are more limited and much more nuanced. I have come round to agree with something Jack Goldsmith said over at Lawfare a couple of months ago, that as far as international law goes, there is not that much more to be said that hasn't already been said. This is not an international law account that depends fundamentally on some deep or textual parsing of cases of the International Court of Justice or other such documentary sources of international law. It is premised on a much broader assertion of state practice evidencing certain long-held understandings of international law related to self-defense and a number of other things.
The demand for ever more extensive international law justification is mostly a way of saying that one disagrees with the basic approach to understanding international law at that point. But then it is ships passing in the night, and there is not much point in going into the weeds because ultimately the US does not think the international law answers lie there. As far as US domestic law goes, the weeds — the work that Robert Chesney is doing on the interrelationships between Title 10 and Title 50 authorities, the military and the CIA, particularly — matter a great deal. But that is not really anything that the advocacy groups care about as such.
That is so, even though I believe that at least some of the things that trouble the advocacy groups become much less of an issue insofar as there is a gradual merger of Title 10 and Title 50 special operations. The military is never free to disregard the laws of war, and the intelligence community must adhere to Title 50 oversight processes which, one might think, points in the direction of the best of both worlds from an accountability process. Or at least an accountability process that accepts that reporting will not be made to NGOs.
The domestic law matters to me for a different reason — viz., that, as I was quoted in the article as saying, we really are groping our way toward a new paradigm in the use of force, made possible by new technologies and the understanding that, going forward, we are going to be dealing with non-state actors with counterterrorism tools, not counterinsurgency. I think we need some revamp of our Title 50 covert activities paradigm to deal with changing ways in which we project and use force, its oversight and accountability, and fundamental categories of acknowledgment. In doing so, the US government should see the development of its domestic law authorities as providing long-run state practice for how these new, more discrete technologies should be used — state practice that just possibly might shape the very, very long run of international law in this area.
The idea that covert action has jus in bello rules applicable to it is, after all, a new development all its own, at least to judge by how states have traditionally understood the conduct of their state covert forces in the past (rules? what rules? that would require that there be a category of activities). It is an important assertion of law that the category be understood to exist and to be governed by rules that limit when and where it can be undertaken (e.g., the "unwilling or unable" standard) and conduct rules (Harold Koh's ASIL assertion that even self-defense outside of formal armed conflict must still adhere to the basic standards of necessity, distinction and proportionality). These are important developments in state practice, and the US needs to find ways to communicate these as normative developments that undergird the legitimacy of its practices. That is not, I think, quite what Human Rights Watch or the ACLU think the agenda of transparency leads to.
Finally, I expressed concern in the article's quotes that the legitimacy of these covert activities was far too much based around the legitimacy of this particular administration — far too much a function of the Obama administration and the bona fides with which it entered office. The reason I worry about this is simple. Whether there is a new administration in 2012 or 2016, there will eventually be a new president of some party. The Obama administration — correctly in my view — is committing the US to a strategic path of counterterrorism that depends in important ways on drone warfare and targeted killing; it is committing the US to this as a strategic, operational, indeed budgetary path for much longer than it can possibly be around.
I applaud this — make no mistake — but I also think for that very reason that the Obama administration has a special obligation to do everything possible to ensure that these tools are fully available to future presidents — and that means undergirding their legal and political legitimacy as much as the line item of drones in the budget. This is a serious legitimacy question, and one that DeYoung's article spells out very well in its discussion of reaction to these policies among our allies (keeping silent on them, neither publicly criticizing nor endorsing, even after utterly depending on drones in Libya).
The advocacy groups, for their part, are merely clearing their throats with calls for transparency, threats of lawsuits on behalf of drone victims. Not to put too fine a point on it, in my estimation they are pre-positioning themselves for a possible Republican administration come 2012 when, suddenly, policies that required merely greater transparency and deferential discussion and all that when it was the Obama administration become accusations of war crimes once again. The administration has an obligation to look down the years, ten years, twenty years, down the road, and protect the presidency in a policy that is substantively the right one — a signal contribution of this administration to the discrete and targeted protection of the United States.
Do North Koreans Really "Revere" Kim Jong Il?
This otherwise reasonable CNN article about recently deceased North Korean dictator Kim Jong Il claims that he was "revered at home" by his people, despite a negative reputation abroad:
Regarded as one of the world's most-repressive leaders, Kim Jong Il always cut a slightly bizarre figure. His diminutive stature and characteristically bouffant hair have been parodied by some in the West....
But for the citizens of his Democratic People's Republic of Korea, Kim was well regarded....
Analysts say it is easy for outsiders to demonize Kim Jong Il, a dictator who spent an estimated 25% or more of his country's gross national product on the military while many in his country went hungry.
But in North Korea, closed off from outside influences, fearful of threats from its neighbors, and subjected to decades of political socialization on top of a long tradition of a strict hierarchical system, Kim Jong Il is viewed positively by most people, said Han Park of the Center for Study of Global Issues.
"The level of reverence for Kim Jong Il in North Korea is quite underestimated by the outside," Park said. "He is regarded by many as not only a superior leader but a decent person, a man of high morality.
How do CNN and Han Park know that North Koreans "revere" the late "Dear Leader"? It's true, as the article notes, that many North Koreans routinely say they revere him, and recently publicly lamented his death. But any North Korean who fails to express such support for the regime (or, worse, expresses even the slightest criticism) is likely to end up in a concentration camp or worse. So such expressions of support cannot be taken at face value.
There is actually plenty of evidence suggesting that most North Koreans do not in fact support their regime, or revere the Dear Leader who subjected them to starvation and mass murder. The fact that hundreds of thousands risk their lives trying to escape to China, Russia, or South Korea is a powerful data point, just as in the similar case of Cuba. It's a safe bet that people who risk their lives to flee a regime probably don't revere its leaders. No doubt many more would flee if not for the fact that the regime kills or imprisons any would-be refugees who are caught.
The fact that the government maintains a police state even more repressive than the USSR is an indication that the regime's leaders themselves do not believe they have broad popular support regardless of what they may say in public. If they did, they wouldn't feel as much of a need to resort to repression to keep themselves in power.
It's difficult to say how much genuine popular support the North Korean government enjoys. But if I had to bet, I would guess that the majority of the population would be more than happy to rid themselves of the Kims and their cronies at the first opportunity. Indeed, I doubt that North Koreans are much different in this respect from the people of the Soviet Union and Eastern Europe. Many Western observers took the latter's statements of support for communism at face value too, and were therefore surprised when communism collapsed in a wave of popular unrest after the shackles of repression were loosened in 1989–91.
This is not to deny that there are North Koreans who genuinely revere the Kim dynasty. Every regime has at least some beneficiaries, and decades of indoctrination have surely had an impact. Some people really do love Big Brother. But a great many others are only pretending to do so for the sake of self-preservation.
Unfortunately, it is all too common for Western observers to take professions of loyalty to repressive regimes at face value. In previous posts, I discussed cases involving Cuba and Iran. The latter was a 2007 study that came just two years before a large-scale popular protest movement against the regime revealed that the regime was far less popular than surface appearances suggested.
UPDATE: In the original version of this post, I forgot to link the CNN article that inspired it. The problem has been fixed.
UPDATE #2: This more recent CNN video describes some of the North Korean government's mechanisms of repression and social control. Perhaps the author of the first article should watch the video and consider its implications for his own piece.
Final Version of "An Equilibrium-Adjustment Theory of the Fourth Amendment"
I'm pleased to say that the final version of my latest article has been posted at the journal's website: An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011).
Purdy Responds
Jed Purdy has posted an interesting (and extremely polite) response to my critique of his article on the Roberts Court and Lochner here.
How About the Brandenburg Gate?
Some New Hampshire lawmakers want to protect their liberty-loving residents from inadvertently running afoul of Massachusetts law:
Some New Hampshire lawmakers are backing a bill that would put up border signs warning drivers about to enter Massachusetts.
Signs welcoming drivers to other states are common on major roads, but lawmakers said travelers on back roads might not realize they're crossing a border and may be subject to different laws.
"You have to think about the fact that there is a huge amount of laws that change when you go from New Hampshire to Massachusetts," said Rep. Jennifer Coffey, R-Andover. "You don't want to get caught on the other side of the line with illegal fireworks in an uninsured vehicle without your seat belt."
Some of these would be helpful on the Virginia-DC border too.
"Set Interac Free"
I have an op-ed today in Canada's National Post co-authored with Philippe Bergevin of the C.D. Howe Institute: "Set Interac Free." The op-ed addresses the issue of payment card regulation and innovation in Canada. The op-ed is based on a comment that Phil and I filed on a Canadian Task Force project, "The Way We Should Pay" and ongoing research that he and I are conducting.
DOD and NATO Should Undertake Libya Targeting Review to Establish State Practice of Lawful Targeting
CJ Chivers and Eric Schmitt have a lengthy and important front-page story in this past Sunday's New York Times detailing scores of instances of civilian collateral damage from NATO air operations in the Libya fighting. Anyone dealing with laws of war, humanitarian intervention, targeting standards, and technology and war needs to read this article closely. Although I have no special factual knowledge beyond the public and media accounts, I incline to believe that these accounts are correct and that the real numbers are considerably higher. (This is apart from a separate question of violations of the laws of war committed by the Libyan rebels as NATO co-belligerents and whether NATO has any attributional responsibility for the actions of these forces, or for negligence in failing to take reasonable steps to restrain these forces. That legal issue is not considered in this post or in the original NYT article.)
I am an uncompromising advocate of precision technologies in warfare, including drones and other remotely controlled machines that, by removing the issue of soldiers defending themselves, allow for more careful targeting decisions. I'm also a strong advocate of the Obama administration's targeting killing programs, both by the military and the CIA. That said, proponents of precision targeting through better technology have long risked raising expectations well beyond what technology supports at any given moment. Gains in civilian protection come incrementally, much of it through trial and error, a combination of technology and experience gained about operations using it in the field. Either over-promising too much, too soon or demands that any "improvement" meet a zero damage, strict liability standard has the effect of stopping improvement in its tracks because improvements come incrementally, one grinding step at a time. Magic bullets come after a long series of unmagic ones.
Unsurprising but nonetheless disappointing was the initial reaction of NATO officials to these Times reporters in their inquiries. It amounted to a shrug of the shoulders:
By NATO's telling during the war, and in statements since sorties ended on Oct. 31, the alliance-led operation was nearly flawless — a model air war that used high technology, meticulous planning and restraint to protect civilians from Colonel Qaddafi's troops, which was the alliance's mandate. "We have carried out this operation very carefully, without confirmed civilian casualties," the secretary general of NATO, Anders Fogh Rasmussen, said in November.
"Without confirmed civilian casualties"? Not confirmed only because NATO refused to make inquiries. Only after the Times reporters gave NATO officials a 27 page memo documenting collateral damage deaths in particular sites in Libya did NATO change its stance:
Two weeks after being provided a 27-page memorandum from The Times containing extensive details of nine separate attacks in which evidence indicated that allied planes had killed or wounded unintended victims, NATO modified its stance. "From what you have gathered on the ground, it appears that innocent civilians may have been killed or injured, despite all the care and precision," said Oana Lungescu, a spokeswoman for NATO headquarters in Brussels. "We deeply regret any loss of life."
That is not an offer by NATO to conduct an investigation; it's a dismissal of the issue. NATO will conduct an after-action review in the form of "lessons learned" — a quite essential and useful exercise for guiding future operations — but apparently not a formal legal review of targeting. This seems to me a grave mistake, for reasons I'll detail below — and particularly a lost opportunity for the United States. NATO should conduct a legal review of targeting in the Libya campaign, and the United States military should likewise undertake its own review of all NATO targeting in Libya. I do not find anything in the Chivers and Schmitt report that looks to be negligent under the proportionality standard for collateral damage in the laws of war. Liability is not the issue or the reason for a formal legal review (I suppose it might arise in a very extreme case of gross and wanton recklessness, but the legal presumption in favor of the commander's good faith judgment on issues of proportionality is profound, and that does not appear to be an issue in what the Times writes).
The real reason for doing this is, instead, that the Libya hostilities offer an opportunity for the United States to examine targeting standards as state practice. State practice defended as lawful, as undertaken by the United Kingdom, France, and other allies, in an operation undertaken on their initiative, and with their own equipment, intelligence, legal officers, targeting standards and operational law.
This is an opportunity for the US to enunciate a legal baseline of state practice in targeting regarded as lawful in particular factual circumstances by its closest allies. And to do so in circumstances that are not Afghanistan after ten years of war, but instead a new situation, with vastly less intelligence and other capabilities than are available today in the Afghanistan conflict. Circumstances, however, in which the targeting, and collateral damage, was regarded by our closest allies and friends as being fully compliant with the laws of war. And a conflict in which the usual outside human rights groups were lobbying for it as humanitarian intervention, and so had far less incentive than usual to try and use the situation to raise the bar on what constitutes lawful targeting.
Thus, the fundamental reason US DOD should insist on an event-by-event legal review of targeting state practice is implicitly to reiterate that the standards applied in Afghanistan today are proper and virtuous — and also that they far, far exceed any legal requirement. And that the US's NATO allies demonstrated important state practice which they regarded as lawful in the conduct of the Libya operations. Because the next time the US goes to war, it will likely be a lot closer in its initial intelligence and information about targeting to what just took place in Libya than what goes on today in Afghanistan. The US should be able to draw upon the detailed, incident-by-incident state practice of its closest allies, and their defense of those practices as lawful, as support for its own conduct.
That's my basic policy take-away — a plea to DOD to insist on a serious analysis of what was regarded in Libya as lawful targeting, including acknowledgment of its limitations and regrettable yet lawful collateral damage. Ideally there would be an internal version. But also, importantly, a public version aimed at emphasizing that the "commander's discretion" under the law of war is real and that the laws of war provide a firm safe harbor for commander's decisions on targeting — and doing so on the basis of evaluating the particular targeting practices in the Libya operation by allied NATO forces.
Below the fold, a little more discussion of the Times article itself and the crucial role of ground level intelligence in the conduct of drone warfare and targeted killing.
I have pointed out in earlier blog posts at both Volokh and Opinio Juris that Libya is an important marker of operational targeting law. Chivers and Schmitt reach more or less the same conclusion:
The failure to thoroughly assess the civilian toll reduces the chances that allied forces, which are relying ever more heavily on air power rather than risking ground troops in overseas conflicts, will examine their Libyan experience to minimize collateral deaths elsewhere. Allied commanders have been ordered to submit a lessons-learned report to NATO headquarters in February. NATO's incuriosity about the many lethal accidents raises questions about how thorough that review will be.
The lasting significance of NATO and US Defense Department review of targeting rules in Libya is different from what Chivers and Schmitt argue that it is, however. They argue that the failure to investigate collateral damage incidents mirrors the early period of the Afghanistan war, and that it was on account of investigations of collateral damage that led in Afghanistan to tightening of the rules on targeting, thus reducing collateral deaths:
NATO's experience in Libya also reveals an attitude that initially prevailed in Afghanistan. There, NATO forces, led by the United States, tightened the rules of engagement for airstrikes and insisted on better targeting to reduce civilian deaths only after repeatedly ignoring or disputing accounts of airstrikes that left many civilians dead.
One can debate whether NATO — i.e., the US — repeatedly ignored or disputed these accounts. Far more important — and the real lesson of the debate over Libyan collateral damage — is that the tightening of targeting rules for airstrikes became possible over the course of that decade-long war mostly on account of two developments: better technology, such as drones and more precise weaponry, and crucially better intelligence. Or, more exactly, the accumulation of far greater intelligence and means of gathering intelligence about Afghanistan. One intelligence officer remarked to me a year ago that parts of Afghanistan are the most mapped areas on earth. The intelligence gathering runs from physical, political, and social geography to human intellligence gathered on the ground — which is, by many accounts, the key reason for the US success with its counterterrorism targeted killing campaign — but the accumulation over ten years is a, if not "the," crucial reason why the US has been able to shift to narrower and more demanding targeting standards.
I would recommend to any journalists reading this post that they read closely Gregory McNeal's new article on the extraordinarily fine-tuned targeting and damage mitigation standards in Afghanistan today. They have reached the point where "law" is not really an issue — the standards are so exacting that even one anticipated civilian death in a pre-planned operation requires the sign-off of the theatre commander or higher (at least as of that article's final date). It is obvious, however, that no such level of planning, review, collateral damage mitigation exercise, etc., could meaningfully take place for most of the Libya operation — not from lack of desire to minimize collateral damage, but from lack of accumulated intelligence of all kinds by which such review could have some real effect.
One can insist in a targeting review on any standards one likes, in other words, but if you don't know a vast amount about the target environment, it won't actually improve your targeting. In Afghanistan at this point, that information includes detailed knowledge about the load-bearing of the earthen walls of compounds, anthropological surveys about likelihood of civilians in the streets after dark, and lots of other things that have never been imagined to be asked about Libya, let alone answered.
Although I don't doubt that NATO/US officials wanted to avoid awkward questions about collateral damage early on in the Afghanistan war — who wouldn't? — and although I don't doubt that awkward questions helped raise the profile of the issue, the actual ability to do anything about it arose from technology, experience, and the accumulation of intelligence. The technology can be transferred from one place to another, and so can part of the operational experience. But intelligence accumulation, especially local geography in all its senses and ground-level human intelligence, as well as the operational experience that those convey with respect to the new precision technologies — no, those are not transferrable. And note that the US ability to engage in its remarkably low collateral damage operations has required many years of patient, unsung work by both military intelligence and the oft-reviled CIA.
So the ability to make good on demands for lower collateral damage is in considerable part a side benefit of an entire decade of war. If you want those kinds of possibilities in Libya, you need to have those kinds of intelligence capabilities on the ground. If you don't have them, but you think — on grounds of imperative national security, imperative demands of humanitarian intervention, or any other reason — that you must use force, you can set your standards as high as you like, you can conduct as many after-action reviews, you can bring in the ICC prosecutor. Either you won't attack at all, or else your targeting will continue to be less precise — by orders of magnitude less precise — than Afghanistan today. Fixing the problem requires not just insistent demands for it, and not just technology — but detailed intelligence, which takes time to develop. The key point is that targeting in Libya resembled Afghanistan in the early days because the intelligence framework was not there. As for drones — they are an important element in gathering intelligence, but when it comes to firing missiles, the drone is the last kinetic step in a long process of intelligence accumulation. The less intelligence, the less ability to use the drone precisely.
I worry that the US might be passively or inadvertently allowing the implicit legal bar to be raised regarding the quality of targeting. In some of my conversations with JAG lawyers who have served as legal advisors on targeting, they sometimes take for granted everything that is now available for the Afghanistan theater — and assume that it will be there for every other situation. It's almost inevitable after a decade of fighting there — for many, their entire operational law careers have been framed by Afghanistan and Iraq. It is hard to keep in mind that there will be other wars in which there is not a decade of intelligence built up over years and on the backs of many unfortunate and regrettable — but lawful — mistakes.
I've raised this occasionally in guest lectures at the JAG school, and I find there is often a palpable double-take when students think about what it would be like to arrive in a new conflict. I think as well that there is much greater awareness of this issue precisely on account of the Libya fighting. But I also hope there is long term awareness in DOD and other agencies of the need to remind the public that the legal threshold is much, much lower than what we are able to do in Afghanistan. The casuistical, incident-by-incident analysis of state practice in Libya helps keep that in mind. And a public release of a version of that analysis, in order to emphasize precisely those limits to the US and NATO's interlocutors in the public and among the advocacy groups.
December 19, 2011
The First Amendment and International Agreements
An interesting opinion in In re Request from the United Kingdom Pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Dolours Price (D. Mass. Dec. 16), involving a subpoena by the UK government pursuant to a UK-US treaty seeking evidence from a Boston College oral history project. Here are some excerpts, though they only give a flavor of what's going on in this rather long and complex opinion:
The Trustees of Boston College move to quash or modify subpoenae requesting confidential interviews and records from the oral history project known as the "Belfast Project." The subpoenae were issued by a commissioner pursuant to 18 U.S.C. § 3512, the United Kingdom Mutual Legal Assistance Treaty ("UK–MLAT"), and a sealed Order of this Court. The government asserts that the terms of the UK–MLAT requires the Court to grant its order and deny any motion to quash absent a constitutional violation or a federally recognized testimonial privilege. Boston College asks the Court to review the subpoenae under the standard set forth in Federal Rule of Criminal Procedure 17(c)(2), where "the court may quash or modify the subpoena if compliance would be unreasonable or oppressive." This Court is asked to determine what sort of discretion an Article III court has to review or quash a subpoena brought under the authority of the UK–MLAT....
In 2001, Boston College sponsored the Belfast Project, an oral history project with the goal of documenting in taped interviews the recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the "Troubles" in Northern Ireland from 1969 forward. The research also sought to provide insight into the minds of people who become personally engaged in violent conflict. As such, its progenitors saw it as a vital project to understanding the conflict in Northern Ireland and other conflicts around the world. The Belfast Project was housed at the Burns Library of Rare Books and Special Collections at Boston College. Boston College sponsored the project due to its ongoing academic interest in Irish Studies and its prior role in the peace process in Northern Ireland....
Boston College argues that the First Circuit recognizes protections for confidential academic research material and that these protections apply to the targets of the commissioner's subpoenae....
[The] legal commitments that the United States made in approving the Treaty coincide with the general legal rule preventing journalistic or academic confidentiality from impeding criminal investigations. See Branzburg v. Hayes, 408 U.S. at 692 (rejecting "the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it"); United States v. Smith, 135 F.3d 963, 971 (5th Cir.1998) ("Branzburg will protect the press if the government attempts to harass it. Short of such harassment, the media must bear the same burden of producing evidence of criminal wrongdoing as any other citizen."). " '[T]he public ... has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege." Here, there is no recognized privilege.
As the subpoenae state, the information is sought in reference to alleged violations of the laws of the United Kingdom, namely murder, conspiracy to murder, incitement to murder, aggravated burglary, false imprisonment, kidnapping, and causing grievous bodily harm with intent to do grievous bodily harm.... These are serious allegations and they weigh strongly in favor of disclosing the confidential information....
In this case, this Court must weigh significant interests on each side. The United States government's obligations under the UK–MLAT as well as the public's interest in legitimate criminal proceedings are unquestioned. The Court also credits Boston College and the Burns Library's attempts to ensure the long term confidentiality of the Belfast Project, as well as the potential chilling effects of a summary denial of the motion to quash on academic research. With such significant interests at stake, the Court will undertake an in camera review of the interviews and materials responsive to the commissioner's subpoenae.
This Court DENIES the motions of the Trustees of Boston College to quash the commissioner's subpoenae, and GRANTS Boston College's request for in camera review of materials responsive to the subpoenae to the Court. This Court ORDERS Boston College to produce copies of all materials responsive to the commissioner's subpoenae to this Court for in camera review by noon on December 21, 2011, thus allowing time for Boston College to request a stay from the Court of Appeals. Absent a stay, this Court promptly will review the materials in camera and enter such further orders as justice may require.
This strikes me as correct as a matter of First Amendment law, and indeed an application of the standard principles that would generally apply to domestic criminal investigations; I don't see the court restricting First Amendment rights in the name of international agreements here. Still, it struck me as an interesting and noteworthy example of how First Amendment questions sometimes arise in treaty cases.
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