Twice in recent months military and political leaders from Israel have reportedly cancelled trips to Britain out of concern that they might be arrested for alleged war crimes.
Officials from other countries could soon face a similar greeting — not only in Britain but also in France, Germany, Japan and other nations that are members of the International Criminal Court.
In May, the international court’s member states will meet in Kampala, Uganda, to consider adding a new crime of aggression to the offenses the court can prosecute. If they include it, all member nations will be required to arrest officials accused of that crime — even if they come from countries that refuse to join.
The Rome conference that created the international court in 1998 gave it power to prosecute four international crimes. One was aggression. Unable to reach consensus on what the term meant, the conference left it undefined. As a result, the crime of aggression has not been prosecutable.
But that would change if the newly-proposed definition were adopted. Under it, any political or military leader would be guilty of the crime of aggression if he exercises control or direction over any use of armed force that represents a manifest violation of the United Nations Charter.
Sensible enough in concept, the definition is maddeningly vague in application, largely because it is based upon a 1974 General Assembly resolution that was aimed at guiding state conduct, not defining individual criminal liability.
What constitutes a “manifest” violation of the charter? The truth is it’s impossible to say. The charter prohibits any non-defensive use of force not authorized by the Security Council. Yet five years ago a U.N. high-level panel found that violations of the charter’s use-of-force rules have been too numerous to count. By one count, the panel noted, force had been used 200 times from 1945 to 1989; by another count, 680 times. In almost all those conflicts, every nation involved contended that it acted lawfully. No impartial tribunal existed to decide which side was right.
Which individuals within those “aggressor” states exercised control or direction over the military actions in question? Again, one can only guess. Preparation for armed conflict engages numerous high-level diplomats, lawyers, intelligence analysts and, sometimes, legislators.
Precisely who exercises control or direction is therefore unclear. What is clear is that, had the proposed crime existed over recent decades, every U.S. president since John F. Kennedy and hundreds of political and military leaders from other countries would have been subject to potential indictment, arrest and prosecution.
Concern about potentially politicized prosecution is one reason that China, Russia, India and the United States have not become members of the international court.
Yet it would not matter for officials from those states that their countries have declined to join. Military action by their states could still be characterized as “aggression” under the proposed definition. If that action were to occur within the territory of a member state — there are now 110 — an indictment could issue. Other member states would thereafter be required to arrest the accused, who would then be transferred to The Hague to stand trial.
Max Weber wrote of the imperative of “calculability” in a legal system, the need to ensure that risks can be identified and addressed with reasonable predictability. In the contemporary international legal order, the “principle of legality” assumes this function. The principle requires that a criminal defendant be given clear notice as to what conduct is illegal before it occurs. Its aim is to provide a modicum of systemic stability by discouraging arbitrary arrest and prosecution.
The proposed new crime will undermine that principle, which lies at the heart of the rule of law. It will force hundreds of political and military leaders who act in good faith to guess when and where they will be arrested in their international travels. It will strain relations among allies and exacerbate tensions among adversaries. It will bollix an international equilibrium that already is precarious enough.
The 1998 treaty that established the International Criminal Court provides that it will be applied “consistent with internationally recognized human rights.” If the parties to the treaty honor that commitment in Kampala, they will reject this misbegotten new definition of aggression.
If the review conference seeks to define aggression along the lines proposed by the working group, it will only serve to undercut the legitimacy of international law. Indeed, given the current nature of state practice with respect to the use of force and the lack of compliance with the UN Charter framework, I am led to the conclusion that aggression cannot be defined as a crime under international law at this time.
In my view the Review Conference should work on refining the workings of the Court on the issues it currently addresses– war crimes, crimes against humanity, and genocide. As for aggression, it should remain, at present, a matter for the Security Council to determine. As Article 39 of the UN Charter provides:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. (emphasis added)
And it remains useful to note that while the Security Council has determined that there have been “threats to the peace” and “breaches of the peace,” never in its history has the Council found that an “act of aggression” has occurred– adding great credence to Glennon’s argument.
“There are still pros and cons to be considered,” Justice John Paul Stevens said in his Supreme Court chambers on Friday afternoon, reflecting on his reluctance to leave a job he loves after almost 35 years. But his calculus seemed to be weighted toward departure, and he said his decision on the matter would come very soon.
“I do have to fish or cut bait, just for my own personal peace of mind and also in fairness to the process,” he said. “The president and the Senate need plenty of time to fill a vacancy.”
Hints about Justice Stevens’s possible departure started in September, when he confirmed that he had hired only a single law clerk, instead of the usual four, for the term that will start this fall. In occasional public statements since then, Justice Stevens, the leader of the court’s liberal wing, said he had not yet made up his mind. But the White House is bracing for a summertime confirmation battle, the second of the Obama presidency.
Justice Stevens, who will turn 90 this month, said he did not like to give interviews “because it saves an awful lot of time if you don’t.” But he was courtly and candid in reviewing the trajectory of his tenure on the court and in summing up what he had learned about the role of the judge in American life.
I am particular struck by this comment:
“What really for me marks a conservative judge is one who doesn’t decide more than he has to in order to do his own job,” he said, relaxed in shirt sleeves and his signature bow tie in chambers floodlit by April sunshine. “Our job is to decide cases and resolve controversies. It’s not to write broad rules that may answer society’s questions at large.”
Needless to say, the entire piece is worth reading.
In case you missed this, Dr. Michael Sulick, Director of the National Clandestine Service, recently delivered an address at Fordham University. After his address, Dr. Sulick was asked about waterboarding. The Fordham press release explains:
Sulick followed his lecture with a lengthy question-and-answer session, although he prefaced it by saying he would not comment on any issue that might influence policy. Questions were submitted by Fordham students in advance and read aloud by USG members. When asked if the Obama administration’s ban on waterboarding has had serious consequences on the war against terror, Sulick answered in general terms.
“I don’t think we’ve suffered at all from an intelligence standpoint,” he said, “but I don’t want to talk about [it from] a legal, moral or ethical standpoint.”
At a time when much discussion is focusing on the similarities between the way in which the Obama Administration and the Bush Administration approached terrorism, it is good to be reminded that there are very critical differences.
BELGRADE, March 31 (Reuters) – Serbia’s parliament apologised on Wednesday for the 1995 killing of thousands of Bosnian Muslims in Srebrenica, but the process only highlighted how deeply polarised the country remains about its wartime past.
The resolution expressed sympathy to victims and apologised for not doing enough to prevent the massacre, but stopped short of calling the killings “genocide”.
The ruling coalition of pro-Western Democrats and Socialists hopes to win EU and investor favour with measure, which was adopted after debate over nearly 13 hours broadcast on live television ending after midnight.
“We are taking a civilised step of politically responsible people, based on political conviction, for the war crime that happened in Srebrenica,” said Branko Ruzic, whose Socialist party was led by strongman Slobodan Milosevic during the 1990s.
Bosnian Serb forces led by General Ratko Mladic killed about 8,000 Bosnian Muslim men and boys after taking over the eastern enclave that was put under the U.N. protection. The massacre is Europe’s worst atrocity since World War Two.
One Western diplomat stationed in Bosnia when the Srebrenica massacre occurred said passing the resolution without arresting Mladic meant little.
“As a substitute, it’s offensive, it’s an insult. Done in tandem with a legal step, then it’s significant,” the diplomat said. “If they think they can let Mladic run free for another 15 years, it’s a grave injustice.”
Belgrade applied for European Union membership in December but must capture and send Mladic to the war crimes tribunal in The Hague before starting talks. The former general, hailed as a hero by many Serbs, is believed to be hiding in Serbia.
SUPPORTERS, OPPONENTS RAISE VOICE
For some parliamentarians, the resolution was unjust for ignoring war crimes against Serbs.
In Srebrenica “the crime was no greater than in other places”, said opposition deputy Velimir Ilic, citing neighbouring Croatia’s moves against Serbs during the war. “We can’t put everything else off to the side.”
Others, such as Cedomir Jovanovic of a liberal opposition party, criticised it for not deeming Srebrenica genocide.
“We wanted a completely different resolution but apparently that is not possible,” he told the parliament. “Our society does not have the sufficient strength.”
Dozens protested in front of the parliament, some carrying pictures of Mladic and Bosnian Serb wartime leader Radovan Karadzic, who is on trial in The Hague for the Srebrenica genocide.
Another group carried small signs saying: “Srebrenica was not in my name.”
Prime Minister Mirko Cvetkovic told Reuters last week the resolution should help improve the strained ties with Bosnia.
“Srebrenica for us is an event that in the long run should open the door for future cooperation,” he said.
Yet many in Bosnia, where 100,000 died during the 1992-95 war, found the Serbian resolution too little, too late.
“Many criminals who slaughtered and killed our children fled to Serbia where they live as free citizens and enjoy full rights,” said Munira Subasic, the head of a Srebrenica women’s association who lost her son and husband at Srebrenica.
“There is no apology for the crimes. The justice can only be served once all the criminals responsible for the atrocity are named and held accountable,” she told Reuters Television.
A previous post contained State Department Legal Adviser Harold Koh’s Address before the American Society of International Law last week. As the post demonstrated, one of the areas that Koh discussed was the legality of targeted killings. Koh noted:
In U.S. operations against al Qaeda and its associated forces– including lethal operations conducted with the use of unmanned aerial vehicles– great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.
Recently, a number of legal objections have been raised against U.S. targeting practices. While today is obviously not the occasion for a detailed legal opinion responding to each of these objections, let me briefly address four:
First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.
Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.
Third, some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.
Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
Over at IntLawGrrls, Diane Marie Amann reports on Justice Stevens’s observations on targeting killings. She begins with the this quote from Koh’s Address:
[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.
Amann continues:
Upon hearing these words, my mind jumped at once to my 2005 interview of U.S. Supreme Court Justice John Paul Stevens (above right), for whom I had the privilege of clerking and about whom I am writing a jurisprudential biography. (photo credit) Stevens served as a Navy codebreaker at Pearl Harbor from 1942-1945, and earned a Bronze Star for that service.The relevant passage from my 2006 article entitled John Paul Stevens, Human Rights Judge described Stevens’ thoughts about perhaps the most famous targeted killing of World War II:
One event days before Stevens’s twenty-third birthday would stay with him for the rest of his life. The architect of the Pearl Harbor attack was Admiral Isoroku Yamamoto, who had learned English from a missionary and become a Babe Ruth fan while studying at Harvard in the 1920s. On April 14, 1943, Americans discovered that Yamamoto [right] was about to travel to the front. Unbeknownst to the Japanese, Stevens explained in an interview more than sixty years later, “We had broken the code.” On Roosevelt’s orders, U.S. pilots downed Yamamoto’s plane over a Solomon Islands jungle on April 18, Easter Sunday. “I was on duty on the day they brought the plane down,” Stevens said, “The message was, ‘We bagged one eagle and two sparrows,’ indicating success in the mission.” The kill buoyed the spirits of many, who knew that getting Yamamoto would, as Stevens put it, “have a tremendous strategic advantage.”
Stevens’ own thoughts were more complex:
But the incident troubled the young officer. “I remember thinking that the planners must have engaged in a lot of deliberation before deciding to go along with the plan,” Stevens said. “I have read a number of books on it since and discovered that was not the case. They were concerned that targeting him would reveal that they had broken the code.” Accounts of the killing indicate that U.S. Admiral Chester A. Nimitz and others—in communications laced with foxhunting terms—debated only the tactical benefits and costs. “But they had no humanitarian concerns at all of the kind that troubled me,” Stevens said. That fact “kind of surprised me,” he continued, particularly given that Yamamoto “had spent time in the United States and had friendships among high-ranking American officers.”
Stevens reaffirmed this sensibility in a just-published New Yorker interview. There author Jeffrey Toobin tracked the Yamamoto account in my 2006 article (without, alas, citation to same). Implicitly linking the Yamamoto incident to his later discussion of Stevens’ post-9/11 jurisprudence, Toobin contributed this insight:
The morality of military action became a lifelong preoccupation.
It’s also worth noting that Stevens’ concerns respecting that targeted killing had a profound effect on his capital punishment jurisprudence. The passage in my 2006 article thus continued:
Appearing before the Chicago Bar Association decades later, Stevens alluded to the event without naming the target. The Justice told his audience that the experience had sown doubts in his mind about another instance in which the state takes the life of a named individual; that is, capital punishment. Recalling that talk, Stevens affirmed that the Yamamoto incident led him to conclude that “[t]he targeting of a particular individual with the intent to kill him was a lot different than killing a soldier in battle and dealing with a statistic. . . . In my mind, there is a difference between statistics and sitting on a jury and deciding whether to kill a single person.”
Stevens’ linkage of targeted killing amid armed conflict with the targeting for execution of a convicted murderer provokes further thoughts:
► As my 2006 article observed,
That superior officers expressed no qualms in 1943 about targeting Yamamoto suggests earlier sources for Stevens’s “humanitarian” unease.
My 2010 article John Paul Stevens and Equally Impartial Government (now available in pdf here, and soon to be in print in the UC Davis Law Review) sets forth a story of Stevens’s family that might have encouraged careful thought about the power of the state.
► It bears particular mention that although Stevens harbored what he called “humanitarian concerns” years before he would decide to enter law school, his were, fundamentally, the concerns of a lawyer. They signaled a visceral sense that the process of law, no less than law’s substance, places valuable constraints on state power.
The quote [from Koh’s Address] at the very top of this post stands in conflict with that sense of justice.
Professor Richard Stites at Georgetown * (On photo, see note below)
My friend and distinguished Georgetown colleague, Professor Richard Stites, died on March 7 in Helsinki. Stites was a brilliant scholar and teacher, whom I met with I was a student at Georgetown University in the 1970’s. My first contact with Richard came when I was enrolled in Professor David Goldfrank’s History of Russia class. Stites taught the other section of that course, and many of my friends were taking it. During the second semester, the two classes collaborated on “revolutionary theater,” where they enacted episodes from Russian history. As far as I can recall, these skits were Richard’s idea and reflected the innovation and passion that he brought to his life’s work. When I returned to Georgetown as a faculty member in the 1980’s, I continued to see Richard as an amazing person– a committed intellectual, devoted to teaching and writing about Russian. And I came to understand that he was a true character.
Richard Stites, 78, a Georgetown University historian whose books on popular culture and the role of women set new standards in the study of Russian and Soviet history, died March 7 at a hospital in Helsinki, where he had a second home. He had cancer of the esophagus.
While many other scholars of Russian history examined the records of statesmen, soldiers and revolutionaries, Dr. Stites focused on films, dance halls and entertainment. In a series of books and articles, he cast light on the tastes of the proletariat and on cultural trends ignored by more traditional historians.
The Bolshevik Revolution of 1917 dramatically changed life in Russia, but Dr. Stites found common threads woven across time.
“The Russians enjoy a kind of . . . ineffable longing for something far away, something lost, something unattainable,” he said in a 1993 interview with National Public Radio. “Pathos is very much a part of their high culture as well as their popular culture. For example, Russian movies . . . had to have Russian endings. That is to say, everybody had to die.”
In his influential 1992 book “Russian Popular Culture: Entertainment and Society Since 1900,” Dr. Stites used pulp fiction, rock-and-roll lyrics, circuses and jokes to reveal the Russian character in fresh and surprising ways.
“Popular culture is part of history because it is as much a human experience as war, slavery, revolution and work,” he wrote in the Los Angeles Times in 1989. “Looking at its themes and styles is the best way to uncover values held by millions of people about life, love, friendship, success and the outer world.”
Dr. Stites could speak or write 10 languages and liked to conduct his research as close to the source as he could get.”Many years living and studying in Moscow and Leningrad,” journalist Katrina vanden Heuvel wrote in The Washington Post in 1993, “frequenting places where scholars are rarely found — sleazy nightclubs, movie houses, vaudeville theaters, pop concerts and workers’ clubs — brought him face to face with the country’s lower-depth realities.”
Early in his career, Dr. Stites concentrated on the little-known contributions of women in Russian society, which he described in his 1978 book, “The Women’s Liberation Movement in Russia.” His 1988 book, “Revolutionary Dreams: Utopian Vision and Experimental Life in the Russian Revolution,” analyzed the cultural underpinnings of the 1917 revolution. “Serfdom, Society, and the Arts in Imperial Russia” (2005) explored the influence of serfs who became actors and artists. At the time of his death, Dr. Stites was completing a book on European revolutionary movements of the 1820s.
A Georgetown colleague, David M. Goldfrank, called him “absolutely one of the more important Russian historians of recent times.”
Richard Thomas Stites was born in Philadelphia on Dec. 2, 1931. He graduated from the University of Pennsylvania in 1956 and received a master’s degree in history from George Washington University in 1959.
In accepting a job at Lycoming College in Pennsylvania in the early 1960s, he agreed to study Russian history and received a doctorate from Harvard University in 1968. He taught in Copenhagen, at Brown University and the Lima campus of Ohio State University before coming to Georgetown in 1977. A faculty member until his death, Dr. Stites always insisted that his students, whether freshmen or postgraduates, make use of the Library of Congress.
His marriages to Dorothy Jones, Tatyana Tereshchenko and Elena Stites ended in divorce.
Survivors include two children from his first marriage, Tod Stites and Thomas Stites, both of Hyattsville; a son from his second marriage, Andrei Stites of Washington; and a daughter from a relationship, Alexandra Stites of Moscow.
Dr. Stites lived in Washington but for many years maintained an apartment in Helsinki, where he did research at the Slavonic Library.
He became something of an expert on all things Finnish, including the concept of “krapula,” or hangover. Interviewed for a Washington Post Magazine article one morning in 2006 after a boisterous evening with colleagues, Dr. Stites admitted that he was in a state of krapula.
“There’s a whole culture of krapula in this country,” he said. “You would never show up for work in the U.S. and tell people about your hangover. In Finland, everyone understands.”
Portions of the message send out by the Provost to Georgetown Faculty:
Richard Stites was a proud native of Philadelphia, where he was born December 2, 1931. He received his B.A. in History from the University of Pennsylvania in 1956, his M.A. in History from George Washington University in 1959, and his Ph.D. in Russian History from Harvard University in 1968. Richard Stites taught at Lycoming College in Pennsylvania, the International College in Copenhagen, Brown University, and The Ohio State University (Lima campus) before joining Georgetown University’s faculty in 1977. He read and/or spoke nine languages apart from English.Professor Stites specialized in modern Russian cultural and social history. His extraordinarily long list of influential publications includes scores of articles, at least five edited or co-edited volumes, a major co-authored textbook, A History of Russia: Peoples, Legends, Events, Forces (Houghton-Mifflin, 2004), and the following single-authored books: The Women’s Liberation Movement in Russia: Feminism, Nihilism, and Bolshevism, 1860-1930 (Princeton University Press, 1978; 2nd edn 1991); Revolutionary Dreams: Utopian Vision and Social Experiment in the Russian Revolution (Oxford University Press, 1989; 2nd edn 1991); Russian Popular Culture: Entertainment and Society since 1900 (Cambridge University Press, 1992); and Serfdom, Society, and the Arts in Imperial Russia: The Pleasure and the Power (Yale University Press, 2008). Revolutionary Dreams won the 1989 Wayne S. Vucinich Prize of the American Association for the Advancement of Slavic Studies. At the time of his death, he was in the final stages of completing yet another major manuscript: The Four Horsemen: Revolution and Counter-revolution in Post-Napoleonic Europe.
Richard Stites won research awards and fellowships from the Russian Research Center at Harvard, the Kennan Institute for Advanced Russian Studies, the Guggenheim Foundation, the Harriman Institute for the Advanced Study of the Soviet Union, and the National Endowment for the Humanities. He was selected for numerous IREX exchanges with Russia, he taught for a time at the US Army Russian Institute in Garmisch-Partenkirchen, Germany, and he was Fulbright Professor at the University of Helsinki in 1995. In 2003, he was awarded an honorary doctorate from the University of Helsinki—a degree that came complete with a ceremonial sword that he afterwards wore with a combination of pride and good humor at Georgetown convocation and commencement ceremonies. In 2007, he was appointed the School of Foreign Service Board of Visitors Distinguished Professor in International Studies at Georgetown.
A giant in his scholarly field, Richard Stites was also an unusually devoted and successful teacher and mentor at all levels of undergraduate and graduate education, and a source of inspiration to colleagues and students alike. His loss will be felt profoundly in the School of Foreign Service, the Department of History, Georgetown University, and the international community of scholars.
A Memorial Service for Richard will be held on Friday, April 9th from 3:00-5:00pm in Gaston Hall. More information on the service can be found here. A memorial site on Richard can be found here.
* On the picture above, Richard’s dear friend, Professor Howard Spendelow, offers the following note:
As for this photo, this is about as dressed-up as Richard ever got (except when a tux was required). Note the Harvard PhD robe (1968), Vicennial Medal (1997), and the hat and sword from the University of Helsinki honorary degree (2003), ΦΑΘ cords, and the ever-present neck amulet. Not visible: ΑΣΝ Jesuit Honor Society medal. On the right lapel, a значок for the Sesquicentennial of Mikhail Glinka, and below that, just barely visible, a pin commemorating the 70th anniversary of Martin’s Tavern. Photo courtesy of Georgetown University Office of the Registrar
Yesterday, Department of State Legal Adviser Harold Koh delivered an address at the Annual Meeting of the American Society of International Law on the Obama Administration and International Law. The video clip above is from Koh’s discussion of targeted killings, including the use of unmanned aerial vehicles.
Harold Hongju Koh Legal Adviser, U.S. Department of State
Annual Meeting of the American Society of International Law
Washington, DC
March 25, 2010
Thank you, Dean Areen, for that very generous introduction, and very special thanks to my good friends President Lucy Reed and Executive Director Betsy Andersen for the extraordinary work you do with the American Society of International Law. It has been such a great joy in my new position to be able to collaborate with the Society on so many issues.
It is such a pleasure to be back here at the ASIL. I am embarrassed to confess that I have been a member of ASIL for more than 30 years, since my first year of law school, and coming to the annual meeting has always been a highlight of my year. As a young lawyer just out of law school I would come to the American Society meeting and stand in the hotel lobby gaping at all the famous international lawyers walking by: for international lawyers, that is as close as we get to watching the Hollywood stars stroll the red carpet at the Oscars! And last year at this time, when this meeting was held, I was still in the middle of my confirmation process. So under the arcane rules of that process, I was allowed to come here to be seen, but not heard. So it is a pleasure finally to be able to address all of you and to give you my perspective on the Obama Administration’s approach to international law.
Let me start by bringing you special greetings from someone you already know. [play video]
As you saw, my client, Secretary Clinton very much wanted to be here in person, but as you see in the headlines, this week she has been called away to Mexico, to meeting visiting Pakistani dignitaries, to testify on Capitol Hill, and many other duties. As you can tell, she is very proud of the strong historical relationship between the American Society and the State Department, and she is determined to keep it strong. As the Secretary mentioned, I and another long time member of the Society, your former President Anne Marie Slaughter of the Policy Planning Staff join her every morning at her 8:45 am senior staff meeting, so the spirit of the American Society is very much in the room (and the smell of the Society as well, as I am usually there at that hour clutching my ASIL coffee mug!)
Since this is my first chance to address you as Legal Adviser, I thought I would speak to three issues. First, the nature of my job as Legal Adviser. Second, to discuss the strategic vision of international law that we in the Obama Administration are attempting to implement. Third and finally, to discuss particular issues that we have grappled with in our first year in a number of high-profile areas: the International Criminal Court, the Human Rights Council, and what I call The Law of 9/11: detentions, use of force, and prosecutions.
I. The Role of the Legal Adviser
First, my job. I have now been the Legal Adviser of the State Department for about nine months. This is a position I first heard of about 40 years ago, and it has struck me throughout my career as the most fascinating legal job in the U.S. Government. Now that I’ve actually been in the job for awhile, I have become even more convinced that that is true, for four reasons.
First, I have absolutely extraordinary colleagues at the Legal Adviser’s Office, which we call “L,” which is surely the greatest international law firm in the world. Its numbers include many current lawyers and alumni who are sitting here in the audience, and it is a training ground for America’s international lawyers [To prove that point, could I have a show of hands of how many of you in the audience have worked in L sometime during your careers?] Our 175 lawyers are spread over 24 offices, including four extraordinary career deputies and a Counselor of International Law, nearly all of whom are members of this Society and many of whom you will find speaking on the various panels throughout this Annual Meeting program.
Second, I have extraordinary clients and you just saw one, Secretary Hillary Clinton, who is a remarkably able lawyer. Of course, another client of mine, the President, is also an outstanding lawyer, as are both Deputy Secretaries, the Department’s Counselor, the Deputy Chief of Staff, and a host of Undersecretaries and Assistant Secretaries.
Third, each day we tackle extraordinarily fascinating legal questions. When I was a professor, I would spend a lot of time trying to think up exam questions. For those of you who are professors, this job literally presents you with a new exam question every single day. For example, I had never really thought about the question: “can you attach a panda?” Or the question, can Mu’ammar al-Qadhafi erect a tent in Englewood, New Jersey, notwithstanding a contrary local ordinance? To be honest, I had never really thought about those questions. But rest assured, in the future,many Yale law students will.
Fourth and finally, my position allows me to play extraordinary and varied roles. Some government lawyers have the privilege for example, of giving regular advice to a particularly prominent client or pleading particular cases before a particular court. But the Legal Adviser must shift back and forth constantly between four rich and varied roles: which I call counselor, conscience, defender of U.S. interests, and spokesperson for international law.
As Counselor, I mean obviously, that the Legal Adviser must play all the traditional functions of an agency general counsel, but with a twist. Like every in-house counsel’s office, we do buildings and acquisitions, but those buildings may well be in Afghanistan or Beijing. We review government contracts, but they may require contracting activities in Iraq or Pakistan. We review employment decisions, but with respect to employees with diplomatic and consular immunities or special visa problems.
But in addition to being counselors, we also serve as a conscience for the U.S. government with regard to international law. The Legal Adviser, along with many others in policy as well as legal positions, offers opinions on both the wisdom and morality of proposed international actions. For it is the unique role of the Legal Adviser’s Office to coordinate and render authoritative legal advice for the State Department on international legal issues, or as Dick Bilder once put it, to “speak law to power.” In this role, the Legal Adviser must serve not only as a source of black letter advice to his clients, but more fundamentally, as a source of good judgment. That means that one of the most important roles of the Legal Adviser is to advise the Secretary when a policy option being proposed is “lawful but awful.” As Herman Pfleger, one former Legal Adviser, put it: “You should never say no to your client when the law and your conscience say yes; but you should never, ever say yes when your law and conscience say no.” And because my job is simply to provide the President and the Secretary of State with the very best legal advice that I can give them, I have felt little conflict with my past roles as a law professor, dean and human rights lawyer, because as my old professor, former legal adviser Abram Chayes, once put it: “There’s nothing wrong with a lawyer holding the United States to its own best standards and principles.”
A third role the Legal Adviser plays is defender of the United States interests in the many international fora in which the U.S. appears– the International Court of Justice, where I had the honor recently of appearing for the United States in the Kosovo case; the UN Compensation Commission; the Iran-US Claims Tribunal; NAFTA tribunals (where I was privileged to argue recently before a Chapter XI tribunal in the Grand River case) – and we also appear regularly in US domestic litigation, usually as of counsel to the Department of Justice in a case such as the Supreme Court’s current case of Samantar v. Yousuf, on which this Society held a panel this morning.
A fourth and final role for the Legal Adviser, and the reason I’m here tonight, is to act as a spokesperson for the US government about why international law matters. Many people don’t understand why obeying our international commitments is both right and smart, and that is a message that this Administration, and I as Legal Adviser, are committed to spreading.
II. The Strategic Vision
That brings me to my second topic: what Strategic Vision of international law are we trying to implement? How does obeying international law advance U.S foreign policy interests and strengthen America’s position of global leadership? Or to put it another way, with respect to international law, is this Administration really committed to what our President has famously called “change we can believe in”? Some, including a number of the panelists who have addressed this conference, have argued that there is really more Continuity than Change from the last administration to this one.
To them I would answer that, of course, in foreign policy, from administration to administration, there will always be more continuity than change; you simply cannot turn the ship of state 360 degrees from administration to administration every four to eight years, nor should you. But, I would argue—and these are the core of my remarks today– to say that is to understate the most important difference between this administration and the last: and that is with respect to its approach and attitude toward international law. The difference in that approach to international law I would argue is captured in an Emerging “Obama-Clinton Doctrine,” which is based on four commitments: to: 1. Principled Engagement; 2. Diplomacy as a Critical Element of Smart Power; 3. Strategic Multilateralism; and 4. the notion that Living Our Values Makes us Stronger and Safer, by Following Rules of Domestic and International Law; and Following Universal Standards, Not Double Standards.
As articulated by the President and Secretary Clinton, I believe the Obama/Clinton doctrine reflects these four core commitments. First, a Commitment to Principled Engagement: A powerful belief in the interdependence of the global community is a major theme for our President, whose father came from a Kenyan family and who as a child spent several years in Indonesia.
Second, a commitment to what Secretary Clinton calls “smart power”—a blend of principle and pragmatism” that makes “intelligent use of all means at our disposal,” including promotion of democracy, development, technology, and human rights and international law to place diplomacy at the vanguard of our foreign policy.
Third, a commitment to what some have called Strategic Multilateralism: the notion acknowledged by President Obama at Cairo, that the challenges of the twenty-first century “can’t be met by any one leader or any one nation” and must therefore be addressed by open dialogue and partnership by the United States with peoples and nations across traditional regional divides, “based on mutual interest and mutual respect” as well as acknowledgment of “the rights and responsibilities of [all] nations.”
And fourth and finally, a commitment to living our values by respecting the rule of law, As I said, both the President and Secretary Clinton are outstanding lawyers, and they understand that by imposing constraints on government action, law legitimates and gives credibility to governmental action. As the President emphasized forcefully in his National Archives speech and elsewhere, the American political system was founded on a vision of common humanity, universal rights and rule of law. Fidelity to [these] values” makes us stronger and safer. This also means following universal standards, not double standards. In his Nobel lecture at Oslo, President Obama affirmed that “[a]dhering to standards, international standards, strengthens those who do, and isolates those who don’t.” And in her December speech on a 21st Century human rights agenda, and again two weeks ago in introducing our annual human rights reports, Secretary Clinton reiterated that “a commitment to human rights starts with universal standards and with holding everyone accountable to those standards, including ourselves.”
Now in implementing this ambitious vision—this Obama-Clinton doctrine based on principled international engagement, smart power, strategic multilateralism, and the view that global leadership flows to those who live their values and obey the law and global standards—I am reminded of two stories.
The first, told by a former teammate is about the late Mickey Mantle of the American baseball team, the New York Yankees, who, having been told that he would not play the next day, went out and got terrifically drunk (as he was wont to do). The next day, he arrived at the ballpark, somewhat impaired, but in the late innings was unexpectedly called upon to pinch-hit. After staggering out to the field, he swung wildly at the first two pitches and missed by a mile. But on the third pitch, he hit a tremendous home run. And when he returned to the dugout, he squinted out at the wildly cheering crowd and confided to his teammates, “[t]hose people don’t know how hard that really was.”[1]
In much the same way, I learned that the making of U.S. foreign policy is infinitely harder than it looks from the ivory tower. Why? Because, as lawyers, we are accustomed to the relatively orderly world of law and litigation, which is based on a knowable and identifiable structure and sequence of events. The workload comes with courtroom deadlines, page limits and scheduled arguments. But if conducting litigation is like climbing a ladder, making foreign policy is much more like driving the roundabout near the Coliseum in Rome.
In this maze of bureaucratic politics, you are only one lawyer, and there is only so much that any one person can do. Collective government decision-making creates enormous coordination problems. We in the Legal Adviser’s Office are not the only lawyers in government: On any given issue, my office needs to reach consensus decisions with all of the other interested State Department bureaus, but our Department as a whole then needs to coordinate its positions not just with other Government Law Offices, which include: our lawyer clients (POTUS/SecState/DepSecState); White House Lawyers: WHCounsel/NSC Legal Counsel/USTR General Counsel; DOD Lawyers (OGC, Jt Staff, CoComs, Services, JAGs); DOJ Lawyers (OLC, OSG, Litigating Divisions-Civ., Crim, OIL, NSD); IC Lawyers (DNI, CIA); DHS Lawyers, not to mention lawyers in the Senate and House.
To make matters even more complex, we participate in a complicated web of legal processes within processes: The Policy Process, The Clearance Process, The Interagency Process, The Legislative Process; and once a U.S. position is developed, an Intergovernmental Lawyering Process. So unlike academics, who are accustomed to being individualists, in government you are necessarily part of a team. One obvious corollary to this is that as one government lawyer, your views and the views of your client are not the only views that matter. As Walter Dellinger observed when he worked at OLC:
[U]nlike an academic lawyer, an executive branch attorney may have an obligation to work within a tradition of reasoned, executive branch precedent, memorialized in formal written opinions. Lawyers in the executive branch have thought and written for decades about the President’s legal authority… When lawyers who are now [in my office] begin to research an issue, they are not expected to turn to what I might have written or said in a floor discussion at a law professors’ convention. They are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch’s legal positions.[2]
Now to say that is not to say that one Administration cannot or should not reverse a previous administration’s legal positions.But what it does mean, as I noted at my confirmation hearings is that government lawyers should begin with a presumption of stare decisis–that an existing interpretation of the Executive Branch should stand– unless after careful review, a considered reexamination of the text, structure, legislative or negotiating history, purpose and practice under the treaty or statute firmly convinces us that a change to the prior interpretation is warranted.
So that is what I mean when I say it’s harder than it looks. And as those listening who have served in government know, it is a lot harder to get from a good idea to the implementation of that idea than those outside the government can imagine.
That brings me to my second, shorter story: about two Irishmen walking down the road near Galway. One of them asks the other, “So how do you get to Dublin?” And the other answers, “I wouldn’t start from here.”
In the same way, given the choice, no one would have started with what we inherited: the worst recession since the Depression, with conflicts in Iraq, Afghanistan, against Al Qaeda. Add to this mix a difficult and divided political environment, which makes it very difficult to get 60 Senate votes for cloture, much less the 67 you would need for treaty ratification, and such thorny carryover issues as resuming international engagement, closing Guantanamo, not to mention tackling an array of new challenges brought to us by the 21st century: climate change, attendant shifts in the polar environment; cyber crime, aggression and terrorism, food security, and global health just to name a few. Just to round things out, throw in a 7.0 earthquake in Haiti, another earthquake in Chile, four feet of snow in Washington, and you might well say to yourselves, to coin a phrase, “I wouldn’t start from here.”
But that having been said, how have we played the hand we have been dealt? What legal challenges do we face? There are really five fields of law that have occupied most of my time: what I call the law of international justice and dispute resolution, the law of 9/11, the law of international agreements, the law of the State Department, and the law of globalization. Tonight I want to focus on the first two of these areas: the law of international justice and dispute resolution and the law of 9/11. For they best illustrate how we have tried to implement the four themes I have outlined: principled engagement, multilateralism, smart power, and living our values. III. Current Legal Challenges
A. International Justice and Dispute Resolution
By International justice and Dispute resolution, I refer to the U.S.’s renewed relationship to international tribunals and other international bodies. Let me address two of them: the International Criminal Court and the U.N. Human Rights Council. As President Obama recognized, “a new era of engagement has begun and renewed respect for international law and institutions is critical if we are to resume American leadership in a new global century.”
1. The International Criminal Court
With respect to the U.S. relationship to the ICC, let me report on my recent participation in the Resumed 8th Session of ICC Assembly of States Parties in New York, from which I have just returned. Last November, Ambassador-at-Large for War Crimes Stephen Rapp and I led an interagency delegation that resumed engagement with the Court by attending a meeting of the ICC Assembly of States Parties (ASP). This was the first time that the United States had attended such a meeting, and this week’s New York meeting continued that November session. As you know, the United States is not party to the Rome Statute, but we have attended these meetings as an Observer. Our goal in November was to listen and learn, and by listening to gain a better understanding of the issues being considered by the ASP and of the workings of the International Criminal Court.
Significantly, although during the last decade the U.S. was largely absent from the ICC, our historic commitment to the cause of international justice has remained strong. As you all know, we have not been silent in the face of war crimes and crimes against humanity. As one of the vigorous supporters of the work of the ad hoc tribunals regarding the former Yugoslavia, Rwanda, Cambodia, Sierra Leone, and Lebanon, the United States has worked for decades, and we will continue to work, with other States to ensure accountability on behalf of victims of such crimes. But as some of those ad hoc war crimes tribunals enter their final years, the eyes of the world are increasingly turned toward the ICC. At the end of May, the United States will attend the ASP’s Review Conference in Kampala, Uganda. There are two key items on the agenda: stock-taking and aggression.
In the current situation where the Court has open investigations and prosecutiosn in relation to four situations, but has not yet concluded any trials, the stock-taking exercise is designed to address ways to strengthen the Court, and includes issues such as state cooperation; complementarity; effect on victims; peace and justice; and universality of membership. Even as a non-State party, the United States believes that it can be a valuable partner and ally in the cause of advancing international justice. The Obama Administration has been actively looking at ways that the U.S. can, consistent with U.S. law, assist the ICC in fulfilling its historic charge of providing justice to those who have endured crimes of epic savagery and scope. And as Ambassador Rapp announced in New York, we would like to meet with the Prosecutor at the ICC to examine whether there are specific ways that the United States might be able to support the particular prosecutions that already underway in the Democratic Republic of Congo, Sudan, Central African Republic, and Uganda.
But as for the second agenda item, the definition of the crime of aggression, the United States has a number of serious concerns and questions. The crime of aggression, which is a jus ad bellum crime based on acts committed by the state, fundamentally differs from the other three crimes under the Court’s jurisdiction—genocide, war crimes, and crimes against humanity—which are jus in bello crimes directed against particular individuals. In particular, we are concerned that adopting a definition of aggression at this point in the court’s history could divert the ICC from its core mission, and potentially politicize and weaken this young institution. Among the States Parties we found strongly held, yet divergent, views on many fundamental and unresolved questions.
First, there are questions raised by the terms of the definition itself, including the degree to which it may depart from customary international law of both the “crime of aggression” and the state “act of aggression.” This encompasses questions like what does it mean when the current draft definition requires that an act of aggression must be a “manifest” –as opposed to an “egregious” violation of the U.N. Charter?
A second question of who decides. The United States believes that investigation or prosecution of the crime of aggression should not take place absent a determination by the UN Security Council that aggression has occurred. The UN Charter confers on the Security Council the responsibility for determining when aggression has taken place. We are concerned by the confusion that might arise if more than one institution were legally empowered to make such a determination in the same case, especially since these bodies, under the current proposal, would be applying different definitions of aggression.
Third, there are questions about how such a crime would potentially affect the Court at this point in its development. For example, how would the still-maturing Court be affected if its Prosecutor were mandated to investigate and prosecute this crime, which by its very nature, even if perfectly defined, would inevitably be seen as political– both by those who are charged, as well as by those who believe aggressors have been wrongly left uncharged? To what extent would the availability of such a charge place burdens on the Prosecutor in every case, both those in which he chooses to charge aggression and those in which he does not? If you think of the Court as a wobbly bicycle that is finally starting to move forward, is this frankly more weight than the bicycle can bear?
Fourth, would adopting the crime of aggression at this time advance or hinder the key goals of the stocktaking exercise: promoting complementarity, cooperation, and universality? With respect to complementarity, how would this principle apply to a crime of aggression? Do we want national courts to pass judgment on public acts of foreign states that are elements of the crime of aggression? Would adding at this time a crime that would run against heads of state and senior leaders enhance or obstruct the prospects for state cooperation with the Court? And will moving to adopt this highly politicized crime at a time when there is genuine disagreement on such issues enhance the prospects for universal adherence to the Rome Statute?
All of these questions go to our ultimate concern: has a genuine consensus yet emerged to finalize a definition of the crime of aggression? What outcome in Kampala will truly strengthen the Court at this critical moment in its history? What we heard at the Resumed Session in New York is that no clear consensus has yet emerged on many of these questions. Because this is such a momentous decision for this institution, which would bring about such an organic change in the Court’s work, that we believe that we should leave no stone unturned in search of genuine consensus. And we look forward to discussing these important issues with as many States Parties and Non States Parties as possible between now and what we hope will be a successful Review Conference in Kampala.
2. Human Rights Council
In addition to reengaging with the ICC, the United States has also reengaged the U.N. Human Rights Council in Geneva. Along with my long time friend and colleague, Assistant Secretary of State for Democracy, Human Rights and Labor Michael Posner, who has my old job, and Assistant Secretary of State for International Organizations Esther Brimmer, I had the privilege of leading the first U.S. delegation to return to the Human Rights Council this past September.
You know the history: In March 2006, the UN General Assembly voted overwhelmingly to replace the flawed Human Rights Commission with this new body: the Human Rights Council. The last Administration participated actively in the negotiations in New York to reform the Commission, but ultimately voted against adoption of the UNGA resolution that created the HRC, and decided not to run for a seat.
The UNGA resolution that created the HRC made a number of important changes from the commission process: it created the Universal Periodic Review process, a mandatory process of self-examination and peer review that requires each UN member state to defend its own record before the HRC every four years. The Obama Administration would like our report to serve as a model for the world. Accordingly we are preparing our first UPR report, which will be presented this November, with outreach sessions in an unprecedented interagency listening tour being conducted in about ten locations around the United States to hear about human rights concerns from civil society, community leaders, and tribal governments. Second, the HRC and its various subsidiary bodies and mechanisms meet far more frequently throughout the year than did the Commission, a pace that exhausts delegations. Third, the election criteria were revised. So while HRC membership still includes a number of authoritarian regimes that do not respect human rights, the election requirement of a majority of UNGA votes in often competitive elections has led to certain countries being defeated for membership and others declining to run for a seat. The rule that only one-third of membership (16 members) can convene a special session, has led to a disproportionate number of special sessions dedicated to criticism of Israel, which already is the only country with a permanent agenda item dedicated to examination of its human rights practices: an unbalanced focus that we have clearly and consistently criticized.
When the Obama Administration took office, we faced two choices with respect to the Human Rights Council: we could continue to stay away, and watch the flaws continue and possibly get worse, or we could engage and fight for better outcomes on human rights issues, even if they would not be easy to achieve. With the HRC, as with the ICC and other for a, we have chosen principled engagement and strategic multilateralism. While the institution is far from perfect, it is important and deserves the long-term commitment of the United States, and the United States must deploy its stature and moral authority to improve the UN human rights system where possible. This is a long-term effort, but one that we are committed to seeing through to success consistent with the basic goals of the Obama-Clinton doctrine: principled engagement and universality of human rights law. Our inaugural session as an HRC member in September saw some important successes, most notably the adoption by consensus of a freedom of expression resolution, which we co-sponsored with Egypt, that brought warring regional groups together and preserved the resolution as a vehicle to express firm support for freedom of speech and expression. This resolution was a way of implementing some of the themes in President Obama’s historic speech in Cairo, bridging geographic and cultural divides and dealing with global issues of discrimination and intolerance. We also joined country resolutions highlighting human rights situations in Burma, Somalia, Cambodia, and Honduras, and were able to take positions joined by other countries on several resolutions on which the United States previously would have been isolated, including ones on toxic waste and the financial crisis. The challenges in developing a body that fairly and even-handedly addresses human rights issues are significant, but we will continue to work toward that end.
At the March HRC session, which ends tomorrow, we have continued to pursue principled engagement by taking on a variety of initiatives at the HRC that seek to weaken protections on freedom of expression, in particular, the push of some Council Members to ban speech that “defames” religions, such as the Danish cartoons. At this session, we made supported a country resolution on Guinea and made significant progress in opposing the Organization of the Islamic Conference’s highly problematic “defamation of religions” resolution, even while continuing to deal with underlying concerns about religious intolerance. B. The Law of 9/11
Let me focus the balance of my remarks on that aspect of my job that I call “The Law of 9/11.” In this area, as in the other areas of our work, we believe, in the President’s words, that “living our values doesn’t make us weaker, it makes us safer and it makes us stronger.”
We live in a time, when, as you know, the United States finds itself engaged in several armed conflicts. As the President has noted, one conflict, in Iraq, is winding down. He also reminded us that the conflict in Afghanistan is a “conflict that America did not seek, one in which we are joined by forty-three other countries… in an effort to defend ourselves and all nations from further attacks.” In the conflict occurring in Afghanistan and elsewhere, we continue to fight the perpetrators of 9/11: a nonstate actor, Al Qaeda (as well as the Taliban forces that harbored al Qaeda).
Everyone here at this meeting is committed to international law. But as President Obama reminded us, “the world must remember that it was not simply international institutions — not just treaties and declarations — that brought stability to a post-World War II world. … [T]he instruments of war do have a role to play in preserving the peace.”
With this background, let me address a question on many of your minds: how has this Administration determined to conduct these armed conflicts and to defend our national security, consistent with its abiding commitment to international law? Let there be no doubt: the Obama Administration is firmly committed to complying with all applicable law, including the laws of war, in all aspects of these ongoing armed conflicts.As the President reaffirmed in his Nobel Prize Lecture, “Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct … [E]ven as we confront a vicious adversary that abides by no rules … the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is the source of our strength.” We in the Obama Administration have worked hard since we entered office to ensure that we conduct all aspects of these armed conflicts – in particular, detention operations, targeting, and prosecution of terrorist suspects – in a manner consistent not just with the applicable laws of war, but also with the Constitution and laws of the United States.
Let me say a word about each: detention, targeting, and prosecution.
1. Detention
With respect to detention, as you know, the last administration’s detention practices were widely criticized around the world, and as a private citizen, I was among the vocal critics of those practices. This Administration and I personally have spent much of the last year seeking to revise those practices to ensure their full compliance with domestic and international law, first, by unequivocally guaranteeing humane treatment for all individuals in U.S. custody as a result of armed conflict and second, by ensuring that all detained individuals are being held pursuant to lawful authorities.
a. Treatment
To ensure humane treatment, on his second full day in office, the President unequivocally banned the use of torture as an instrument of U.S. policy, a commitment that he has repeatedly reaffirmed in the months since. He directed that Executive officials could no longer rely upon the Justice Department OLC opinions that had permitted practices that I consider to be torture and cruel treatment — many of which he later disclosed publicly — and he instructed that henceforth, all interrogations of detainees must be conducted in accordance with Common Article 3 of the Geneva Conventions and with the revised Army Field Manual. An interagency review of U.S. interrogation practices later advised – and the President agreed – that no techniques beyond those in the Army Field Manual (and traditional noncoercive FBI techniques) are necessary to conduct effective interrogations. That Interrogation and Transfer Task Force also issued a set of recommendations to help ensure that the United States will not transfer individuals to face torture. The President also revoked Executive Order 13440, which had interpreted particular provisions of Common Article 3, and restored the meaning of those provisions to the way they have traditionally been understood in international law. The President ordered CIA “black sites” closed and directed the Secretary of Defense to conduct an immediate review – with two follow-up visits by a blue ribbon task force of former government officials – to ensure that the conditions of detention at Guantanamo fully comply with Common Article 3 of the Geneva Conventions. Last December, I visited Guantanamo, a place I had visited several times over the last two decades, and I believe that the conditions I observed are humane and meet Geneva Conventions standards.
As you all know, also on his second full day in office, the President ordered Guantanamo closed, and his commitment to doing so has not wavered, even as closing Guantanamo has proven to be an arduous and painstaking process. Since the beginning of the Administration, through the work of my colleague Ambassador Dan Fried, we have transferred approximately 57 detainees to 22 different countries, of whom 33 were resettled in countries that are not the detainees’ countries of origin. Our efforts continue on a daily basis. Just this week, five more detainees were transferred out of Guantanamo for resettlement. We are very grateful to those countries who have contributed to our efforts to close Guantanamo by resettling detainees; that list continues to grow as more and more countries see the positive changes we are making and wish to offer their support.
During the past year, we completed an exhaustive, rigorous, and collaborative interagency review of the status of the roughly 240 individuals detained at Guantanamo Bay when President Obama took office. The President’s Executive Order placed responsibility for review of each Guantanamo detainee with six entities –the Departments of Justice, State, Defense, and Homeland Security, the Office of the Director of National Intelligence (ODNI), and the Joint Chiefs of Staff – to collect and consolidate from across the government all information concerning the detainees and to ensure that diplomatic, military, intelligence, homeland security, and law enforcement viewpoints would all be fully considered in the review process. This interagency task force, on which several State Department attorneys participated, painstakingly considered each and every Guantanamo detainee’s case to assess whether the detainee could be transferred or repatriated consistently with national security, the interests of justice, and our policy not to transfer individuals to countries where they would likely face torture or persecution. The six entities ultimately reached unanimous agreement on the proper disposition of all detainees subject to review. As the President has made clear, this is not a one-time review; there will be “a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.” Similarly, the Department of Defense has created new review procedures for individuals held at the detention facility in Parwan at Bagram airfield, Afghanistan, with increased representation for detainees, greater opportunities to present evidence, and more transparent proceedings. Outside organizations have begun to monitor these proceedings, and even some of the toughest critics have acknowledged the positive changes that have been made.
b. Legal Authority to Detain
Some have asked what legal basis we have for continuing to detain those held on Guantanamo and at Bagram. But as a matter of both international and domestic law, the legal framework is well-established. As a matter of international law, our detention operations rest on three legal foundations. First, we continue to fight a war of self-defense against an enemy that attacked us on September 11, 2001, and before, and that continues to undertake armed attacks against the United States. Second, in Afghanistan, we work as partners with a consenting host government. And third, the United Nations Security Council has, through a series of successive resolutions, authorized the use of “all necessary measures” by the NATO countries constituting the International Security Assistance Force (ISAF) to fulfill their mandate in Afghanistan. As a nation at war, we must comply with the laws of war, but detention of enemy belligerents to prevent them from returning to hostilities is a well-recognized feature of the conduct of armed conflict, as the drafters of Common Article 3 and Additional Protocol II recognized and as our own Supreme Court recognized in Hamdi v. Rumsfeld.
The federal courts have confirmed our legal authority to detain in the Guantanamo habeas cases, but the Administration is not asserting an unlimited detention authority. For example, with regard to individuals detained at Guantanamo, we explained in a March 13, 2009 habeas filing before the DC federal court –and repeatedly in habeas cases since — that we are resting our detention authority on a domestic statute – the 2001 Authorization for Use of Military Force (AUMF) – as informed by the principles of the laws of war. Our detention authority in Afghanistan comes from the same source.
In explaining this approach, let me note two important differences from the legal approach of the last administration. First, as a matter of domestic law, the Obama Administration has not based its claim of authority to detain those at GTMO and Bagram on the President’s Article II authority as Commander-in-Chief. Instead, we have relied on legislative authority expressly granted to the President by Congress in the 2001 AUMF.
Second, unlike the last administration, as a matter of international law, this Administration has expressly acknowledged that international law informs the scope of ourdetention authority. Both in our internal decisions about specific Guantanamo detainees, and before the courts in habeas cases, we have interpreted the scope of detention authority authorized by Congress in the AUMF as informed by the laws of war. Those laws of war were designed primarily for traditional armed conflicts among states, not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is “necessary and appropriate” under the AUMF requires some “translation,” or analogizing principles from the laws of war governing traditional international conflicts.
Some commentators have criticized our decision to detain certain individuals based on their membership in a non-state armed group. But as those of you who follow the Guantanamo habeas litigation know, we have defended this position based on the AUMF, as informed by the text, structure, and history of the Geneva Conventions and other sources of the laws of war. Moreover, while the various judges who have considered these arguments have taken issue with certain points, they have accepted the overall proposition that individuals who are part of an organized armed group like al Qaeda can be subject to law of war detention for the duration of the current conflict. In sum, we have based our authority to detain not on conclusory labels, like “enemy combatant,” but on whether the factual record in the particular case meets the legal standard. This includes, but is not limited to, whether an individual joined with or became part of al Qaeda or Taliban forces or associated forces, which can be demonstrated by relevant evidence of formal or functional membership, which may include an oath of loyalty, training with al Qaeda, or taking positions with enemy forces. Often these factors operate in combination. While we disagree with the International Committee of the Red Cross on some of the particulars, our general approach of looking at “functional” membership in an armed group has been endorsed not only by the federal courts, but also is consistent with the approach taken in the targeting context by the ICRC in its recent study on Direct Participation in Hostilities (DPH).
A final point: the Obama Administration has made clear both its goal not only of closing Guantanamo, but also of moving to shift detention responsibilities to the local governments in Iraq and Afghanistan. Last July, I visited the detention facilities in Afghanistan at Bagram, as well as Afghan detention facilities near Kabul, and I discussed the conditions at those facilities with both Afghan and U.S. military officials and representatives of the International Committee of the Red Cross. I was impressed by the efforts that the Department of Defense is making both to improve our ongoing operations and to prepare the Afghans for the day when we turn over responsibility for detention operations. This Fall, DOD created a joint task force led by a three-star admiral, Robert Harward, to bring new energy and focus to these efforts, and you can see evidence of his work in the rigorous implementation of our new detainee review procedures at Bagram, the increased transparency of these proceedings, and closer coordination with our Afghan partners in our detention operations.
In sum, with respect to both treatment and detainability, we believe that our detention practices comport with both domestic and international law. B. Use of Force
In the same way, in all of our operations involving the use of force, including those in the armed conflict with al Qaeda, the Taliban and associated forces, the Obama Administration is committed by word and deed to conducting ourselves in accordance with all applicable law. With respect to the subject of targeting, which has been much commented upon in the media and international legal circles, there are obviously limits to what I can say publicly. What I can say is that it is the considered view of this Administration—and it has certainly been my experience during my time as Legal Adviser—that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.
The United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.
As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks. As you know, this is a conflict with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks against us and our allies while hiding among civilian populations. That behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians. Of course, whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses. In particular, this Administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:
First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and
Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.
In U.S. operations against al Qaeda and its associated forces– including lethal operations conducted with the use of unmanned aerial vehicles– great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.
Recently, a number of legal objections have been raised against U.S. targeting practices. While today is obviously not the occasion for a detailed legal opinion responding to each of these objections, let me briefly address four:
First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.
Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.
Third, some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.
Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
In sum, let me repeat: as in the area of detention operations, this Administration is committed to ensuring that the targeting practices that I have described are lawful. C. Prosecutions:
The same goes, third and finally, for our policy of prosecutions. As the President made clear in his May 2009 National Archives speech, we have a national security interest in trying terrorists, either before Article III courts or military commissions, and in keeping the number of individuals detained under the laws of war low.
Obviously, the choice between Article III courts and military commissions must be made on a case-by-case basis, depending on the facts of each particular case. Many acts of terrorism committed in the context of an armed conflict can constitute both war crimes and violations of our Federal criminal law, and they can be prosecuted in either federal courts or military commissions. As the last administration found, those who have violated American criminal laws can be successfully tried in federal courts, for example, Richard Reid, Zacarias Moussaoui, and a number of others.
With respect to the criminal justice system, to reiterate what Attorney General Holder recently explained, Article III prosecutions have proven to be remarkably effective in incapacitating terrorists. In 2009, there were more defendants charged with terrorism violations in federal court than in any year since 9/11. In February 2010, for example, Najibullah Zazi pleaded guilty in the Eastern District of New York to a three-count information charging him with conspiracy to use weapons of mass destruction, specifically explosives, against persons or property in the United States, conspiracy to commit murder in a foreign country, and provision of material support to al-Qaeda. We have also effectively used the criminal justice system to pursue those who have sought to commit terrorist acts overseas. On March 18, 2010, for example, David Headley pleaded guilty to a dozen terrorism charges in U.S. federal court in Chicago, admitting that he participated in planning the November 2008 terrorist attacks in Mumbai, India, as well as later planning to attack a Danish newspaper.
As the President noted in his National Archives speech, lawfully constituted military commissions are also appropriate venues for trying persons for violations of the laws of war. In 2009, with significant input from this Administration, the Military Commissions Act was amended, with important changes to address the defects in the previous Military Commissions Act of 2006, including the addition of a provision that renders inadmissible any statements taken as a result of cruel, inhuman or degrading treatment. The 2009 legislative reforms also require the government to disclose more potentially exculpatory information, restrict hearsay evidence, and generally require that statements of the accused be admitted only if they were provided voluntarily (with a carefully defined exception for battlefield statements).
IV. CONCLUSION
In closing, in the last year, this Administration has pursued principled engagement with the ICC and the Human Rights Council, and has reaffirmed its commitment to international law with respect to all three aspects of the armed conflicts in which we find ourselves: detention, targeting and prosecution. While these are not all we want to achieve, neither are they small accomplishments. As the President said in his Nobel Lecture, “I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor ideals by upholding them not when it’s easy, but when it is hard.” As President Obama went on to say, even in this day and age war is sometimes justified, but “this truth”, he said, “must coexist with another – that no matter how justified, war promises human tragedy. The soldier’s courage and sacrifice is full of glory … But war itself is never glorious, and we must never trumpet it as such. So part of our challenge is reconciling these two seemingly irreconcilable truths – that war is sometimes necessary, and war at some level is an expression of human folly.”
Although it is not always easy, I see my job as an international lawyer in this Administration as reconciling these truths around a thoroughgoing commitment to the rule of law. That is the commitment I made to the President and the Secretary when I took this job with an oath to uphold the Constitution and laws of the United States. That is a commitment that I make to myself every day that I am a government lawyer. And that is a commitment that I make to each of you, as a lawyer deeply committed—as we all are—to the goals and aspirations of this American Society of International Law.
Thank you.
[1] Jim Bouton, Ball Four: My Life and Hard Times Throwing the Knuckleball in the Big Leagues 30 (1970).
[2] Walter Dellinger, After the Cold War: Presidential Power and the Use of Military Force, 50 U. Miami L. Rev. 107 (1995).
First, let me praise Harold Koh for stepping up to the plate. This is a plain, clear statement of the US view of the law and its application. It is measured, and yet exceedingly direct. My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States. As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare — most recently in a Weekly Standard article on exactly that theme, and again this week in a sharply worded statement to a House subcommittee hearing, and a clip on NPR this morning recorded several months ago with Ari Shapiro — this was an enormously positive step.
Second, on the substance. On first read, I think this is a great statement. It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces. But it also asserts self-defense several times as an alternative. I had been greatly concerned, frankly, that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view — that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens.
I want a chance to go over the written text and say something much more exact. But given how much, particularly this week on account of the Congressional testimony, my criticisms of the administration’s lawyers have been in the news, I would like to make it known as publicly as possible that, the Legal Adviser’s statement on targeted killing and drone technology is very positive, very strong, and admirably forthright. My congratulations and thanks to the Legal Adviser.
In this edition of UN Plaza, I speak with Charli Carpenter, a political scientist and human security analyst at the University of Massachusetts-Amherst. (She also blogs!) We chat about human security, the new Security Council report on Somalia; a new gender entity taking shape at the UN, and what Battlestar Gallactica can teach the United Nations. Enjoy!
Thomas Meaney (Columbia University) and Harris Mylonas (George Washington University) have an interesting take on the Greek tragedy in the European Community:
“What hasn’t yet shattered the EU just might make it stronger.”
This is particularly true for Germany. They argue that the German dithering over what to do about the financial crisis of Greece – and by extension, the Eurozone – was actually strategic. Allowing the crisis to come to a head – threatening to tear the European Union apart – actually benefits Germany in four ways:
(1) The crisis has caused the Euro to depreciate which will help German exports: “Germany has been hamstrung by a weak dollar and even weaker Chinese yuan. The devaluation of the euro relative to the dollar in the last three months by more than 10% has helped German exports recover from a devastating 19% drop in 2009.”
(2) The crisis may help Germany see one of their own nationals elected to head the European Central Bank:
“The candidacy of the longtime favorite, Italy’s Mario Draghi, has been severely compromised by his close ties with Goldman Sachs and its role in helping the Greek government’s attempt to conceal the full extent of its debt. Now Axel Weber, the current Bundesbank president, leads in the running, putting the Germans in a much better position to have one of their own head Europe’s leading financial institution.”
(3) The crisis – especially the fact that Europe allowed Greece to languish before agreeing to come to the rescue – has sharpened the German whip it’s been cracking at other debtor countries like Spain and Portugal:
“Germany now stands on much firmer ground when it comes to haranguing debtor nations in the Eurozone to get their books in order.”
(4) The crisis had increased support for the German stand against expanding the Eurozone:
“EU nations such as Estonia, Latvia, Lithuania and Denmark, which have not made it into the inner sanctum of the Eurozone, will now face a much longer wait.”
So while Germany seemed to struggle on the world stage as the financial meltdown in Greece threatened to wreak havoc on the rest of the German-led Eurozone, Germany may actually stand to improve its position in Europe. And if what’s good for Germany is good for the European Union, then this story may yet have a happy ending.
Every year, the Secretary of State hosts a briefing like this one. And while in that sense it may seem routine, this event is extraordinary because of its connection to who we are as a country and to the universal aspirations we seek to make real through our foreign policy.
The idea of human rights begins with a fundamental commitment to the dignity that is the birthright of every man, woman and child. Progress in advancing human rights begins with the facts. And for the last 34 years, the United States has produced the Country Reports on Human Rights Practices, providing the most comprehensive record available of the condition of human rights around the world.
These reports are an essential tool – for activists who courageously struggle to protect rights in communities around the world; for journalists and scholars who document rights violations and who report on the work of those who champion the vulnerable; and for governments, including our own, as they work to craft strategies to encourage protection of human rights of more individuals in more places.
The principle that each person possesses equal moral value is a simple, self-evident truth, but securing a world in which all can exercise the rights that are naturally theirs is an immense practical challenge. To craft effective human rights policy, we need good assessments of the situation on the ground in the places we want to make a difference. We need a sophisticated, strategic understanding of how democratic governance and economic development can each contribute to creating an environment in which human rights are secured. We need to recognize that rights-protecting democracy and rights-respecting development reinforce each other. And we need the right tools and the right partners to implement the right policies.
Human rights may be timeless, but our efforts to protect them must be grounded in the here and now. We find ourselves in a moment when an increasing number of governments are imposing new and crippling restrictions on the nongovernmental organizations working to protect rights and enhance accountability.
New technologies have proven useful both to oppressors and to those who struggle to expose the failures and the cowardice of the oppressors. And global challenges of our time – like food security and climate change; pandemic disease; economic crises; and violent extremism – impact the enjoyment of human rights today, and shape the global political context in which we must advance human rights over the long term.
Human rights are universal, but their experience is local. This is why we are committed to holding everyone to the same standard, including ourselves. This year, the United States is participating in the Universal Periodic Review process in conjunction with our participation in the UN Human Rights Council. In the fall, we will present a report, based on the input of citizens and NGOs, gathered online and in face-to-face meetings across the country attended by senior government officials. Assessing opportunities for progress and soliciting citizen engagement is one way that we demonstrate our commitment in word and deed to the basic principles that guide us toward a more perfect union and a more peaceful world.
As we work to protect human rights at home and abroad, we remember that human rights begin, as Eleanor Roosevelt said, “in small places close to home.” So when we work to secure human rights, we are working to protect the experiences that make life meaningful, to preserve each person’s ability to fulfill his or her God-given potential – the potential within every person to learn, discover and embrace the world around them; the potential to join freely with others to shape their communities and their societies so that every person can find fulfillment and self-sufficiency; the potential to share life’s beauties and tragedies, laughter and tears with the people they love.
The reports released today are a record of where we are. They provide a fact base that will inform the United States’ diplomatic, economic and strategic policies toward other countries in the coming year. These reports are not intended to prescribe such policies, but they provide essential data points for everyone in the United States Government working on them. I view the these reports not as ends in themselves, but as an important tool in the development of practical and effective human rights strategies by the United States Government. That is a process to which I am deeply committed.
The timeless principles enshrined in the Universal Declaration of Human Rights are a North Star guiding us toward the world we want to inhabit – a just world where, as President Obama has put it, peace rests on the “inherent rights and dignity of every individual.” With the facts in hand and the goals clear in our heads and our hearts, we recommit ourselves to continue the hard work of making human rights a human reality.
It’s now my pleasure to invite Mike Posner, Assistant Secretary of Democracy, Human Rights, and Labor to the podium.
The Global Network Initiative (GNI) is pleased to announce the appointment of Susan Morgan as its first Executive Director. As Executive Director, Ms. Morgan will be responsible for continuing to make GNI a leading voice in defending and promoting freedom of expression and privacy in the information and communications technology industry worldwide. Ms. Morgan comes to GNI at a pivotal time and will be focused on advancing GNI’s goals, including increasing membership, encouraging collective action, overseeing the learning and accountability framework, and acting as a public advocate and spokesperson for GNI.
“Technology has the potential to dramatically increase access to information and protect personal privacy. However, increasing demands from governments to limit content, restrict freedom of expression and monitor users represent a worrying threat to human rights,” said Ms. Morgan.
“GNI can lead the way in helping companies make thoughtful and responsible decisions that protect the freedom of expression and privacy rights of hundreds of millions of Internet and communications technology users around the world,” Ms. Morgan said. “I am delighted to join GNI and look forward to building its global leadership role as we encourage more companies and their stakeholders to join us in this multi-stakeholder effort to protect freedom of expression and privacy worldwide.”
Ms. Morgan expects to begin her role at GNI in May of this year, joining from British Telecommunications (BT), where she was head of corporate responsibility (CR) strategy, policy and business planning. She played a key role in BT’s approach to external reporting and corporate accountability. She also led work on assessing corporate responsibility risk and opportunity. Ms. Morgan has more than fifteen years of experience in both the for-profit and non-profit sectors.
Today, GNI also announces the formation of its Board of Directors. The GNI Board of Directors consists of eight representatives from companies, four from non-governmental organizations (NGOs), two from the academic community, two from investment firms, and an independent Chair. All the NGO, academic and investor seats on the Board are filled, and five company seats remain open for companies that join GNI.
Finally, GNI has published on its website a Governance Charter that establishes a formal decision-making and accountability structure for GNI. The Charter describes how GNI will be governed in order to ensure integrity, accountability and effectiveness.
The Global Network Initiative is a multi-stakeholder group of companies, civil society organizations (including human rights and press freedom groups), investors and academics dedicated to protecting and advancing freedom of expression and privacy in the Information and Communications Technology (ICT) sector.
Many congrats to Ms. Morgan on the new position! For more information on the Global Network Initiative, check out their website.
Michael Samway, Anthony Clark Arend, Ebele Okobi-Harris, and Michael Callahan
It was my great pleasure today to visit the Yahoo! Campus in Sunnyvale, California. Yahoo! has an extremely active Business and Human Rights Program that supports a wide-variety of specific initiatives. In 2007, Yahoo! made a very generous contribution to Georgetown University to establish the Yahoo! International Values, Communications, Technology, and Global Internet Fellowship Fund. This Fund supports the work of the Yahoo! Fellow in Residence and two Junior Yahoo! Fellows– who are students in the Master of Science in Foreign Service Program (MSFS). This year’s Yahoo! Fellow in Residence is the brilliant, Evgeny Morozov. In addition to his research, Evgeny is teaching an MSFS course this semester on The Internet and Democracy.
Many, many thanks to Michael Callahan, Executive Vice President, General Counsel and Secretary of Yahoo!, Michael Samway, Vice President and Deputy General Counsel, and Ebele Okobi-Harris, Director, Business and Human Rights Program, for meeting with me today and showing me around the Yahoo! Campus. Michael Samway was a student of mine twenty-years ago, and it was great to see him again in Sunnyvale! We at Georgetown are looking forward to seeing the two Michaels and Ebele in April at a special Georgetown conference sponsored by the Yahoo! Fund and featuring Evegeny’s work!
My wife Tracy and I are excited to be in San Francisco again! Tomorrow night I will be giving a talk for the Georgetown University Alumni Club of Northern California entitled “Terrorists: Criminals or Combatants?” I will post comments about the evening.
New Under Secretary of the Air Force, Erin Conaton
As numerous posts have noted, Erin Conaton’s nomination to be Under Secretary of the Air Force had been “on hold” for some time. Yesterday, the Senate finally confirmed her. The Air Force Times reports:
The Air Force has a No. 2 civilian leader for the first time since August 2007.
The Senate confirmed Erin Conaton as undersecretary of the Air Force on March 4 after months of political wrangling.
Jeff Sessions and Richard Shelby, the Republican senators from Alabama, had placed holds on her nomination because they were upset over the Air Force’s handling of the KC-X tanker competition, among other things. The holds were lifted without explanation.
At a Senate Armed Services Committee hearing earlier that day, Sessions told Air Force Secretary Michael Donley that he was still upset about the tanker competition and that “this [was] not going to go away.”
Sessions spokeswoman Sarah Haley declined to comment on why the holds were lifted. Shelby’s office could not be reached for comment.
Conaton was nominated by President Obama on Nov. 10.
Many, many congrats to my friend Erin on her confirmation! She will be a wonderful asset to the Air Force and exercise great leadership in her new position!
Over at The Vreelander, my great friend and Georgetown colleague, Professor James Raymond Vreeland, calls upon the Obama Administration to fight against protectionist impulses in the United States. He posts:
Congress is flirting with “Buy America” again, “complaining that money is going to projects that are creating jobs in foreign countries.” They’re pointing to the “Buy America” provisions in the 2009 stimulus package, which call for American firms to be favored over foreign firms when making government purchases.
Back in ’09, President Obama correctly observed that favoring US companies over foreign ones could “trigger a trade war” and send a message to the world that “we’re just looking after ourselves.” Indeed, the Buy America provisions have provoked outrage from important trading partners across the globe.
Yet, President Obama’s gentle leadership on this issue is not enough. We need his bold and courageous style to explain in no uncertain terms why protectionism is wrong for the United States.
On March 18, 2008, then-candidate Barack Obama gave the most important speech on race in the United States since Martin Luther King, Jr. spoke in the 1960s. He addressed fears that people have of others who are different from them. He explained that he was running for president because “we cannot solve the challenges of our time unless we solve them together.” The speech showed courage of leadership on a divisive issue, and it inspired many to vote for him.
These days, people are worried about the economy, and it is easy to let fears about people who are different – people of foreign countries – be our scapegoat.
Yet, let’s look back at other periods of stormy economy history. It is widely agreed that the world plunged deeper into the Great Depression of the 1930s because of insular “beggar-thy-neighbor” policies. Governments sought to bail out their own countries at the expense of their neighbors.
Now, as we live through times of economic woe, with crisis in country after country, isolationism is certainly tempting. We are seduced by ugly nationalism to deal with international problems, just as we have so many times faltered and turned to racism domestically. These poisonous fruits, however, can only spell further disaster.
So, while President Obama sometimes nudges in the right direction on this issue, his gentle prodding to tone down nationalist demands are simply insufficient.
We need bold global leadership from someone who understands the ways in which all people – from Kansas to Kenya, from Illinois to Indonesia, from Pennsylvania Avenue to Pakistan – are intimately connected. This is why we elected President Obama.
We need our President to forthrightly explain to the American people exactly why a Buy America approach is wrong:
We live in a globalized, multi-polar world.
Simply put, we cannot solve the financial challenges of our time unless we solve them together.
In a potential reversal, White House advisers are close to recommending that President Barack Obama opt for military tribunals for self-professed Sept. 11 mastermind Khalid Sheik Mohammed and four of his alleged henchman, senior officials said.The review of where and how to hold a Sept. 11 trial is not over, so no recommendation is yet before the president and Obama has not made a determination of his own, officials said. The review is not likely to be finished this week.
Officials spoke Thursday on condition of anonymity because they weren’t authorized to discuss private deliberations.
Attorney General Eric Holder decided in November to transfer Mohammed and the four other accused terrorists from the prison at the U.S. naval base at Guantanamo Bay, Cuba, to New York City for civilian trials. That was initially supported by city officials, but was later opposed because of costs, security and logistical concerns.
When opposition ballooned further into Congress and an attempted Christmas airline bombing brought massive scrutiny to Obama’s terrorism policies, the administration said it would review Holder’s trial decision and consider all options for a new location.
In addition to local opposition to a trial, the administration faces pressure on its goal of closing Guantanamo on another front. Republicans in Congress have proposed barring prosecutions of terrorism defendants in federal courts or in reformed military commissions located in the United States.
Rep. Peter King, R-N.Y., has proposed legislation that would prevent the Obama administration from putting Mohammed and other terrorists on trial in any American community. Sen. Lindsey Graham, R-S.C., joined by about half the Senate’s Republicans and a few Democrats, has made a similar proposal.
Separate from the internal trial review, the White House is in still-ongoing negotiations with lawmakers over those proposals, including how to secure funding from Congress to hold terrorism trials and to close the Guantanamo prison and replace it with another facility in the United States.
The Obama administration views civilian trials for terrorists as an important demonstration of the U.S. commitment to rule of law. Officials also have cited the numerous terrorism trials already held successfully in U.S. criminal courts.
This would, I believe, be an unfortunate development. What message would such a reversal send to the rest of the world? That our criminal justice system is “too good” for these persons? It would have been better if the initial decision had been to op for military trials. But if the Administration now reverses, it makes the United States appear all the more to be seeking a forum most conducive to a conviction (even though, of course, military trials themselves will not guarantee such conviction.)
Over at The Monkey Cage, my friend and Georgetown colleague, Erik Voeten, posts:
I wrote the previous post on UN peacekeeping as this was something I used to track closely but haven’t followed in the past five years. I was struck by the numbers as I gathered some graphs for teaching the other day. Holger Schmidt, who knows much more about this topic than I do, wrote to point me to two interesting papers that offer a much more systematic analysis of recent trends. The first, a 2009 article (gated) in the Journal of Peace Research by Alex Bellamy and Paul Williams, shows that Western countries engage in quite a significant amount of peacekeeping but for various reasons prefer to do so outside the UN framework. The second, Jim Lebovic presented at the 2010 ISA conference, shows how patterns of contributions have shifted markedly in the second wave of post Cold War UN peacekeeping. Abstracts [follow] . . . .
Alex J. Bellamy and Paul D. Williams The West and Contemporary Peace Operations Journal of Peace Research 2009 46: 39-57
In recent years, senior UN officials have raised concerns about the decline of Western contributions to UN peace operations. Although this is a worrying trend for supporters of the UN, it does not mean that the West is playing a smaller role in peace operations per se. Instead, the West has increased its contribution to `hybrid’ peace operations and missions that take place outside of the UN system. This article examines the West’s contribution to both UN and non-UN peace operations since the Brahimi Report and assesses whether its contribution has markedly changed and what impact any changes have had on international peace and security. It proceeds in three sections. The first provides a historical overview of the West’s ambivalent relationship with UN peace operations since 1948. The second analyses the West’s contribution to UN, hybrid and non-UN peace operations. The final section explores what Western policies mean for international peace and security by assessing their impact on the UN’s authority, the extent to which they save lives and their contribution to building stable peace. The article concludes that while in the short term the West’s willingness to participate in hybrid operations displays a commitment to finding pragmatic solutions to some difficult problems, over the longer term this approach may weaken the UN’s ability to maintain international peace and security.
Lebovic, James. “Passing the Burden: Contributions to UN Peace Operations in the Post-Cold War Era” Paper presented at the annual meeting of the Theory vs. Policy? Connecting Scholars and Practitioners, New Orleans Hilton Riverside Hotel, The Loews New Orleans Hotel, New Orleans, LA, Feb 17, 2
This paper assesses the changing composition of personnel contributions to UN peace operations (UNPOs). It proceeds as follows. It examines statistical evidence to establish that participation in UN missions grew enormously in the post-Cold War period and that increased participation by less-wealthy (aid-receiving) countries accounts overwhelmingly for these trends. Next, it assesses realist and non-realist accounts for state involvement in UNPOs and a potential role for international institutions in these operations should their staffing depend on “aid-hungry” states that seek to exchange their labor for the benefits of UNPO participation. It then presents a research strategy that focuses on global aid distribution patterns to determine whether UNPO personnel contributions are increasingly driven by financial and development motives, specifies a model (and discusses its constituent variables), and then tests it on cross-sectional time-series data for the 1992-2008 period. The paper concludes that the second post-Cold War decade was a significant departure from the first: whereas the capabilities and political preferences of contributors accounted for change in their personnel contributions to UNPOs in the first post-Cold War decade, an aid imperative helped account for such change in the 2001-08 period.
QUESTION: (In Spanish.) INTERPRETER: The journalist was just asking how the U.S. intends to negotiate to get the United Kingdom to sit at the table and address the Malvinas issue. And he was then asking about this setting up of the fund. So, what’s the reserves of the country? SECRETARY CLINTON: As to the first point, we want very much to encourage both countries to sit down. Now, we cannot make either one do so, but we think it is the right way to proceed. So we will be saying this publicly, as I have been, and we will continue to encourage exactly the kind of discussion across the table that needs to take place.
Check out Adam Liptak’s 
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My friend and Georgetown colleague, James Raymond Vreeland 
Over at 
