Thursday, November 25, 2004

Giving thanks
On this day, I am most thankful for the men and women around the world who have volunteered to serve in uniform, and who do so on the cutting edge of freedom. I know they miss their families terribly, and their families worry for them every moment. It's never fun to be away from one's family on Thanksgiving; it's certainly awful to be in harm's way on this special holiday. Thankfully, however, these soldiers have their units and their leaders to rely on, and I know these bonds will help them persevere. But on this day, I hope you'll join me in thinking of them, and the hard work they do on our behalf.
Admin note
I'm traveling for Thanksgiving, and will resume writing on Monday. Please come back then.

Tuesday, November 23, 2004

A New Legal Framework for the War on Terror
Harvard law professor Philip Heymann (former Deputy Attorney General) and a smart crew of operators and lawyers has a new study titled "Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terrorism". It's a joint project between Harvard's Belfer Center for Science and International Affairs, and the National Memorial Institute for the Prevention of Terrorism located in Oklahoma City. It is one of the most comprehensive and balanced treatment of these issues that I've seen since Sept. 11, and it deserves your attention. Here is a brief look inside the report:
It has now been over three years since the 9/11 terrorist attacks. Fundamental changes in domestic and international law have occurred since 9/11, new institutions have been created, and unprecedented practices have been adopted. It is now time to assess many of these changes. Our mission is not to judge whether these changes were either wise or necessary in the aftermath of the attacks, but to determine whether these changes, or others, will be wise in the decades ahead. Politics is irrelevant to this determination. We are, instead, concerned with a system of laws that will govern the United States not simply today but through the course of a threat that is likely to be present for generations to come. The recommendations in this Report seek to provide such guidance.

We began by identifying ten of the most important and difficult issues that the United States must address in combating terrorism in the coming decades:
- Coercive Interrogations
- Detentions of Suspected Enemies and Terrorists
- Trying Suspected Terrorists in Military Commissions
- Targeted Killing (Assassinations)
- U.S. Communications Intercepted During the Targeting of Foreign Persons Abroad
- Information Collection (Data-Mining)
- Identification of Individuals and Collection of Information for Federal Files
(Biometric Information)
- Surveillance of Domestic Religious and Political Meetings
- Distinctions Based on Group Membership (Profiling)
- Oversight of New Measures taken in the `War on Terrorism'
Since the 9/11 attacks, the U.S. government has made choices that could permanently alter long accepted U.S. traditions and precedents regarding separation of powers, the rights of citizens and relations among nations. Yet these concerns about democratic liberties and lawfulness are no more or less important than competing concerns about national security and government's ability to prevent another terrorist attack. Our effort has been to find ways to recognize and honor both sets of concerns simultaneously.

For each of the ten issues, we have provided short hypothetical arguments to illustrate the competing viewpoints that have characterized the national debate since 9/11. We value the priorities of both sides. Our approach is to demonstrate that it is possible to combat terrorism and provide security while at the same time preserving democratic freedoms. The danger posed by terrorism today is far greater than it has been in the past, so we agree the United States must adopt a new strategy both at home and abroad to combat this far more dangerous terrorist threat. Fighting terrorism, however, does not require wholesale abandonment of national principles and traditions — foregoing the legitimacy that only legislative and judicial powers can provide and leaving individual rights to the executive branch's discretion.

We believe that the competing concerns of national security and democratic freedom can largely be reconciled by the intelligent use of legislative and judicial processes to both support and constrain executive branch authority. Only in this way can we provide the security that the country needs without the dangers inherent in decades of unchecked discretionary powers vested in the executive

Thus, the ten recommendations in this Report seek to find balance between these competing concerns.
The report is a long one, weighing in at 195 pages. But its text is relatively straightforward, and accessible to anyone who has been following these issues through the mainstream media. (In other words, you don't need to be a lawyer to read it.) I think this report is vulnerable to criticism that it abandons principle for pragmatism. However, given the nature of the threat we face and the cost of strict adherence to principle, that may be a choice we have to make.

Monday, November 22, 2004

The cameraman speaks
The New York Times reports this morning that NBC freelance videographer Kevin Sites has posted a lengthy note on his website discussing the events of last week — where his camera captured a young U.S. Marine fatally shooting a wounded Iraqi insurgent. Mr. Sites has not commented until now, and I've heard that he was quite upset over the whole matter, especially the extent to which it's alienated him from his embedded unit.
BAGHDAD, Iraq, Nov. 21 - A marine who appears to shoot and kill an unarmed and wounded Iraqi prisoner in an NBC News video was not aware that the incident was being recorded, and moments later approached the cameraman with seemingly remorseful words - "I didn't know, sir, I didn't know" - according to the first public description of the events by the cameraman, Kevin Sites, since his brief and somewhat ambiguous initial report.

No weapons were visible inside the Falluja mosque where the shooting took place, on Nov. 13, and the wounded Iraqi made no sudden or threatening moves before the marine shot him, Mr. Sites writes on his Web site,, in an entry posted Sunday night.

Mr. Sites, a freelance photojournalist who had been hired by NBC News, made it clear that as a veteran of covering wars around the globe, he understood the ugliness and complexity of battle. Nevertheless, he said of the incident in the mosque, "it appeared to me very plainly that something was not right."

His account also raises new questions about another group of marines who entered the mosque just before Mr. Sites and fired on the prisoners - they had been left there, already wounded, after a battle the day before. Mr. Sites was so surprised that the prisoners he had seen there the day before had been attacked again that he informed a Marine lieutenant of the fact before the final shooting - the one he captured on tape - took place.

The video obtained by Mr. Sites has received sensational play around the world, particularly in the Arab news media.

Mr. Sites calls the posting on his Web log an "Open Letter to the Devil Dogs of the 3.1," or the Third Battalion, First Marines. "Since the shooting in the mosque, I've been haunted that I have not been able to tell you directly what I saw," he wrote, "or explain the process by which the world came to see them as well."
Recommend that you check out Kevin Sites' commentary for yourself. It's the only first-hand report we have of this incident, and it provides a great deal of context to what we saw on the videotape. I still believe that we should hold our condemnation of this Marine and let the military justice system sort this out based on all of the mitigating factors in play. I think Mr. Sites' commentary will help the public understand what happened, although I'm not sure how this will affect the story. We'll see.

Related Posts:

  1. The cameraman speaks
  2. A tragedy, not an atrocity

Sunday, November 21, 2004

The functional utility of espionage
Christopher Baker, a former Marine Corps infantry officer and law school classmate of mine, recently published a very provocative paper (large PDF file) on the functional utility of espionage in the international arena that I highly recommend for anyone interested in this area. Clandestine espionage has long been neglected in international law, largely because of its shadowy nature and the reluctance of states to publicly endorse or condemn it. Nonetheless, Mr. Baker argues that it serves an important function, and that states rely on espionage to reinforce treaty and alliance relationships, and to maintain the peace.
This essay argues that international law neither endorses nor prohibits espionage, but rather preserves the practice as a tool by which to facilitate international cooperation. Espionage functionally permits states not only to verify that their neighbors are complying with international obligations, but also to confirm the legitimacy of those assurances that their neighbors provide. States are more willing to cooperate across various functional lines because espionage is available as a tool by which to monitor foreign behavior.

* * *
... spying complements the monitoring and verification regimes positively recognized within many international treaties to better enable functional cooperation. Distinguishable from conventional verification measures, espionage serves as an extension of monitoring regimes, and thereby enables functional cooperation. This essay concludes that the continued functional relevance of espionage is rooted in the growth of modern, transnational threats that increasingly threaten international security.
Comments: I thought the article presented a very interesting argument for the importance of espionage in the international legal system. Ironically, for a piece about the law, the argument strongly supports the status quo -- that is, a dearth of law governing this subject so that states may continue to engage in clandestine means of espionage. This is one of those places where the absence of law has allowed states to pursue rational policies based on interest and realist considerations -- and it's worked. And best of all, this paper is short. Judge Richard Posner, who's sharply criticized law reviews for their length and lack of academic discipline, would applaud Mr. Baker and his editors for this piece.

The article appears in the American University International Law Review, and the citation for the article is 19 Am. U. Int'l L. Rev. 1091.