The Honorable Alberto Mora

WILLIAM V. O’BRIEN LECTURE

IN INTERNATIONAL LAW AND MORALITY

GEORGETOWN UNIVERSITY

APRIL 30, 2013

ALBERTO MORA

My sincere thanks to Georgetown University for having conferred on me the distinction of being asked to present today the William O’Brien Lecture in International Law and Morality. I also wish to thank my friends, Mark Lagon and Tony Arend, for their support of Georgetown’s decision to extend the invitation.  I am honored to be able to support Mark and Tony’s academic work in my capacity as a member of the Advisory Board of the Master of Science in Foreign Service Program, one of the programs that help make the School of Foreign Service one of the world’s leading centers for international affairs research and study.

The O’Brien Lecture was established by the School of Foreign Service and the Government Department to honor Dr. O’Brien’s many years of distinguished scholarship on war, morality, and the legal dimensions of international affairs.  Dr. O’Brien’s work on these issues not only continues to resonate, but it has also clearly continued to influence the University.  This is evidenced by the leadership in these areas provided by Alex Aleinikoff, my college classmate and good friend, while a member of the faculty and then Dean of the Law Center.  It is also evidenced by the major contributions made by David Cole and Neal Katyal – among many other current or former Georgetown faculty members – to the national debate on the legal issues of the War on Terror in their roles as lawyers, scholars, and public intellectuals.

Today, my focus will be on the self-inflicted and still-unhealed wounds our nation has suffered from our decision to adopt torture and cruel, inhuman, and degrading treatment as weapons of war.  I’ll cover briefly what we did; how and why we came to do so; the damage to our country that resulted and continues; and our accountability, or lack of it, for our actions.  As I say, our national wounds are still unhealed.  In large measure this is because we have not yet assembled the full historical record, we have not yet grasped the full consequences of our actions, and we have not yet even begun to address the unavoidable issue of accountability.

Before turning to the principal topic, however, there are two preliminary issues to discuss.  Both issues inform how I address the larger issue of detainee treatment in the War on Terror.

The first preliminary issue is the distinction between torture, on the one hand, and cruel, inhuman, and degrading treatment, on the other.  As we know, there is a legal distinction between torture and cruelty.  Cruelty is legally considered the lower level of abuse and the distinction between the two is critical to the application of criminal law.  Yet cruelty can be as effective as torture in destroying human dignity and as destructive medically and psychologically of the person; I consider there to be little or no moral distinction between one and the other.  The debate over the past decade has been hampered by a lack of discipline or even simple awareness about the distinction between the two categories of abuse. This has served to muddle public understanding.  The controversy should not be only about whether we tortured, it should be about whether we inflicted cruelty.  In the debate on detainee treatment we have focused too much on torture and not enough on cruelty, thus failing to bring enough moral attention to abuse that we should consider as reprehensible as torture. Fidelity to human rights principles and our existing laws requires that the application of all pain – not only severe pain – be prohibited.

The second preliminary issue is to identify the strategic objectives of the United States in the defense of our nation.  In my view there are two, and they are the same today as they were in the immediate aftermath of September 11.  The first strategic objective is to defend the safety of our lives and the security of our territory.  The second strategic objective is to defend our values and our way of life those values helped create.  Both objectives are equally precious and we pursue them simultaneously.  We neither surrender the security of our people nor do we surrender the flag by abandoning or compromising our values.

Each of us here understands that the United States is defined by our values; each of us understands that one of the characteristics of our free society is that we accept a greater measure of risk from those internal and external enemies who may wish to do us harm; and each of us understands that the challenge of defending our freedom has never been without cost.  Since 9/11, thousands of men and women, both civilian and military, have put themselves at risk and in some cases sacrificed their lives at home and abroad defending our freedoms.  Those sacrifices don’t cause us to question or alter our values; instead, they fuel our determination to treasure them even more.

Everyone here will be aware that there have been occasions during our history – usually during wartime or other times of danger – when our nation has mistakenly transgressed our laws and values in pursuit of security.  Such excesses occurred during the Civil War, World Wars I and II, and the Cold War.  We all recall with shame and revulsion the internment of U.S. citizens of Japanese ancestry during World War II as one such historical example.   And we all recall how these patently illegal internments were found to be lawful by the Supreme Court in 1944 in its Korematsu decision.

But, as many if not enough Americans fully understand, our own generation has made our own mistakes.  In ways not compelled by the 9/11 terrorists, we also departed from our laws and values during the War on Terror and, by doing so, we damaged them.  The greatest damage came from our embrace of cruelty.  Our fundamental mistake was in forgetting the wisdom in Albert Camus’ observation that a nation fighting for its values – as we have fought for our values in the War on Terror even if we sometimes lost sight of this strategic objective – must take care that it not kill those values with the very weapons used in their defense.

Whatever else may be said in the future about this war, it is historically significant because we as a nation – despite our laws, values, and traditions – consciously applied cruelty against captives and sought to amend or reinterpret our laws so as make this – which was illegal – legal.  What Korematsu signifies for World War II, the decision to apply waterboarding to our captives represents to the War on Terror.

I make this point because each time we applied cruelty, each time we hold open the possibility that we may apply cruelty again, each time we fail to render a full accounting of our actions, each time we fail to hold those responsible for the application of cruelty accountable, and each time we fail to provide a remedy for those who were its victims, we acted or act not only contrary to values, but also to our strategic interest.

I.  DID WE TORTURE?

Did the United States torture?  Indisputably.  We did so both directly and by outsourcing torture through extraordinary renditions.  The evidence is massive, deep, and no longer deniable.

Here’s how we waterboarded Abu Zubaydah, according to journalist Kurt Eichenwald in his book 500 Days:

Zubaydah was brought into a room and strapped down on a gurney, which was leaned back about fifteen degrees.  After Zubaydah exhaled, leaving his lungs collapsed, one of the interrogators held a black cloth against his mouth while another poured water from a plastic bottle onto his face.  The liquid flowed into his mouth and nose; the cloth acted like a one-way valve, allowing water to run in but preventing Zubaydah from coughing it out.  The fluid filled his head, sinuses, and throat.  Even though, because of the incline of the gurney, no liquid could enter his lungs, Zubaydah sucked in the water as he struggled to breathe, experiencing an uncontrollable sense of impending death.  He was drowning man who could not drown.   (p. 338.)

This was torture.

And here’s how we treated Mohammed al-Qahtani, the detainee believed to be the “Twentieth Hijacker”.  According to journalist Jane Mayer:

Qahtani had been subjected to a hundred and sixty days of isolation in a pen perpetually flooded with artificial light.  He was interrogated on 48 of 54 days, for eighteen to twenty hours at a stretch.  He had been stripped naked; straddled by taunting female guards; …forced to wear women’s underwear on his head and to put on a bra; threatened by dogs; placed on a leash; and told that his mother was a whore.  [He] had been subjected to a phony kidnapping, deprived of heat, given large quantities of intravenous liquids without access to a toilet, and deprived of sleep for three days.  [At one point,] Qahtani’s hear rate had dropped so precipitately, to thirty-five beats a minute, that he required cardiac monitoring.

This was torture, too.  Indeed, in 2009 the former Army General Counsel and then-Convening Authority for the Military Commissions, Susan Crawford, dismissed all war crimes charges against Qahtani based on her official determination that he had been tortured.  She stated:  “We tortured Qahtani.  His treatment met the legal definition….”

And, once again, back to Zubaydah.  Here is how the Department of Justice’s Office of Legal Counsel, in an astonishing memorandum dated August 1, 2002, responded in part to the CIA General Counsel’s request for legal advice as to how he could employ insects in Zubaydah’s interrogation:

In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah.  As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar.  If you do so…, you must inform him that the insects will not have a sting that would produce death or severe pain.  If, however, you were to place the insect in the box without informing him that you are doing so, then, in order not to commit a predicate act, you should not affirmatively lead him to believe that any insect is present which has a sting that could produce severe pain or suffering or even cause his death.

As Professor Joseph Lavitt has pointed out, this bizarre passage could have been lifted textually from George Orwell’s book 1984, the principal distinction being that Orwell wrote of the use of rats, not caterpillars, in the torture of the book’s protagonist.  It has not been established that the CIA did use insects during interrogation.  But the passage crystalizes the tenor of the advice consistently given to interrogators and acted upon by many of them during the War on Terror:  You may place as many insects as you wish on the detainee; the insects may sting the detainee as many times as they can; and the detainee can experience endless pain and suffering, just as long as the pain does not reach the level of severe pain and suffering or death. If the OLC gave this advice in good faith, it can only be because they assumed that pain can be modulated with such precision; that there were interrogators and medical professionals in attendance trained to modulate the pain skillfully; and that part of their skill included the ability to gauge scientifically how a given interrogation technique would affect any detainee at any given moment, regardless of differences in his medical condition or tolerance to pain.  But we know none of this is true – pain cannot be modulated with such precision, and never could; those interrogators and doctors skilled in the exquisitely fine application of torment don’t exist, and never did; and we can’t really know how the same interrogation techniques will affect different detainees.  When mere pain spiked into the realm of severe pain, who could have detected and documented it?  And what happens then – to the interrogators, and the doctors, and the lawyers, and the policy-makers who miscalculated?

In these cases and these ways — and in many more cases and ways — the United States tortured.  This was the conclusion of the International Committee of the Red Cross, which, after interviewing detainees held in Guantanamo, informed the U.S. government in February 2007 that its treatment of certain detainees held there constituted torture. This was the conclusion reached more recently by the Constitution Project’s bi-partisan Task Force on Detainee Treatment, which released its compilation of the evidence in a comprehensive, two-year, 600-page Report issued on April. And this is the conclusion that any impartial observer is compelled to reach after a review of the facts.

II.  WHY DID WE TORTURE?

How did our Nation come to use torture in this war?

This policy originated in the aftermath of 9/11.  At Guantanamo and elsewhere, U.S. authorities held in detention individuals thought to have information on other impending attacks against the United States.  It was believed that, unless this information was obtained, more Americans could die.  Spurred by this belief, our government made legal and policy decisions providing, in effect, that for some of those detainees labeled as “unlawful combatants,” harsh interrogation methods could be applied.  Many of the methods approved and applied constituted cruel, inhuman, and degrading treatment – a degree of abuse that the Eighth Amendment and the constitutional jurisprudence of the Fifth and Fourteenth Amendments have long outlawed.  And, as we have seen, torture was also applied.

In my opinion, the authorization to apply torture and cruelty rested on six beliefs or assumptions.  The first five are clearly false but the sixth is still at issue.  These six assumptions are:

First, the use of harsh interrogation techniques was necessary if our nation was to be protected against further loss of life.  This was false.

Second, no law prohibited the application of cruelty.  Thus, the government could direct the use of cruelty as a matter of policy depending on the dictates of perceived military necessity.  This, too, was false.

Third, the President’s constitutional commander-in-chief authorities included the unabridged discretion to order torture and other forms of abuse.  Any existing or proposed law or treaty that would purport to limit this discretion would be an unconstitutional limitation of his powers.  False.

Fourth, the use of cruelty in the interrogation of unlawful detainees held abroad would not implicate or adversely affect our values, our domestic legal order, our international relations, or our security strategy.  False in every particular.

Fifth, if this abuse were disclosed or discovered, virtually no one would care.  Because, to the contrary, many people in fact cared intensely, this too was false.  And,

Sixth, if the abuse were discovered, no one responsible would be held accountable.

Whether this last assumption will be proven true or false is still problematic.  It is difficult to envisage that our system of justice would fail to respond to a crime such as torture, but so far it has. To this point, the assumption has been proven correct.

The treatment meted to Zubaydah and Qahtani illustrates the results of the policy that ensued from these false assumptions:  not all unlawful combatants in custody were mistreated, but it is enough to say that some were; not all were treated as badly as Zubaydah and Qahtani, but many were treated just as badly; and not all who were mistreated were abused as a result of official policy, but many were.

The number of those abused is probably greater than the public record, such as it is, currently documents.  In the end, history will ultimately judge what the cause and level of the abuse was for each detainee – whether it was torture or some lesser cruelty – and whether it resulted from official commission, omission, or occurred despite every reasonable effort to prevent the mistreatment.  Whatever the ultimate historical judgment, however, it is established fact that the brutal interrogation of detainees was officially sanctioned and that abuse occurred as a consequence.  No matter how circumscribed these policies were, or how short their duration, or how few the victims – for as long as these policies were in effect our government had adopted and practiced what only can be labeled as a policy of cruelty that included torture.

III.  WHAT WERE THE HARMS?

The application of cruelty and torture harmed and continues to harm our nation’s legal, foreign policy, and national security interests in multiple ways.  I’ll discuss each of these harms.

A.        The Legal Harm

The first harm was to our laws.  The acceptance of cruelty is contrary to and damages our values and legal system by discarding the basic principle that all human beings have the right to be free from cruelty and that the highest purpose of law is to protect human dignity.

Cruelty damages and ultimately would transform our constitutional structure because cruelty is incompatible with the philosophical premises upon which the Constitution is based.  Our Founders drafted our Constitution inspired by the belief that law could not create, but only recognize, certain inalienable rights – rights vested in every person, not just citizens, and not just here, but everywhere.

These rights form the shield that protects core human dignity.  Because of this shield, due process is required; the equal protection of the law is mandated; slavery is outlawed; coerced confessions are prohibited and, if obtained, excluded from use as evidence; the vote is extended to all citizens who have attained their majority; racial discrimination is forbidden; and all men and women are to be treated equally.  Also, and most relevantly for purposes of today’s discussion, the Eighth Amendment prohibits cruel punishment and the constitutional jurisprudence of the Fifth and Fourteenth Amendments outlaws cruel treatment that “shocks the conscience”.  These are just a few of our rights that issue from the foundation of personal dignity.

These rights, to be sure, have been enlarged and gained greater definition during the course of our history.  But to have adopted and applied a policy of cruelty anywhere within this world was to say that our Founders and the successor generations were wrong about their belief in the rights of the individual, because there is no right more fundamental than the right to be safe from cruel and inhumane treatment.

If we can lawfully abuse Zubaydah and Qahtani the way they were abused – however reprehensible their acts may have been – it is because they did not have the inalienable right to be free from cruelty.  And if that is the case, then the foundation upon which our own rights are based starts to crumble, because it would then ultimately be left to the discretion of the state whether and how much cruelty may be applied to each of us or to any person.

The infliction of cruel treatment damages not only the victims, but also the fabric of the law itself in two ways.  It does so because if cruelty is taken out of the law’s ambit and placed within the realm of policy, the scope of the law is then, by definition, diminished.  Also, cruelty violates the important principle of law that Professor Jeremy Waldron terms the “principle of non-brutality.”  He writes:

Law is not savage.  Law does not rule through abject fear and terror, or by breaking the will of those whom it confronts….  [There is] an enduring connection between the spirit of the law and respect for human dignity – respect for human dignity even in extremis, where law is at its most forceful and its subjects at their most vulnerable.  [T]he rule against torture … is vividly emblematic of our determination to sever the link between the law and brutality, between the law and terror, and between law and the enterprise of breaking a person’s will.

B.  The Harm to our Foreign Policy Interests

The second category of the harm from cruelty is to our foreign policy interests.  In sum, the effects and consequences of cruelty were contrary to our long-term and over-arching strategic foreign policy interests, including many of the principal institutions, alliances, and rules that we have nurtured and fought for over the past sixty years.

America’s international standing and influence stems in no small measure from the effectiveness of a foreign policy that harmonized our policy ends and means with our national values.  The employment of cruelty not only betrayed our values, thus diminishing the strength of our example and our appeal to others, it impaired our foreign policy by adopting means inimical to our traditional national objective of enhancing our security through the spread of human rights protected by the rule of law.

From World War II until today, American foreign policy has been grounded in strong measure on a human rights strategy.  We have fought tyranny and promoted democracy not only, or even primarily, because it was the right thing to do, but because the spread of democracy made us safer and protected our freedoms.  In ways that echoed the development of our own domestic legal system, we successfully promoted the development of a rules-based international order based on the rule of law.  Across the world, human rights principles, international treaties and laws – particularly humanitarian and international criminal law – and many domestic constitutions and legal systems owe their character, acceptance, and relevance to our inspiration, efforts, or support.

Let’s look at three examples, out of many, of these foreign policy achievements:

• First, the Nuremberg Trials.  Nuremberg represents a triumph of American justice and statesmanship that launched the modern era of human rights and international criminal law, treated prisoner abuse as an indictable crime, helped cement the principle of command responsibility, and started the process whereby national sovereignty no longer served as a potential shield to protect the perpetrator of crimes against humanity from the long arm of justice;

• Second, the Geneva Conventions.  The Geneva Conventions, as do most of the major human rights treaties adopted and ratified by our country during the last century, forbid the application of cruel, inhuman, and degrading treatment to all captives.  Thousands of American soldiers have benefited from these conventions; and

• Third, the German Constitution.  The Constitution has helped transform a country that helped launch two of the most destructive wars in history into the responsible society it is today.  Its article one, section one, states:  “The dignity of man is inviolable.  To respect and protect it is the duty of all state authority.”  That this should be an element of the German Constitution today reflects credit only on the German nation and its citizens.  However, hat it should have been adopted by Germany in 1949, the year the constitution was first ratified, reflects credit on an American foreign policy that had integrated our national focus on human dignity as an operational objective.

Each of these achievements has returned massive dividends to our nation.  We are all the better for them.  However imperfectly these precedents, rules, or laws may be observed or enforced, they have helped shape public opinion world wide, created global standards of conduct, and influenced the behavior of foreign individuals, groups, and nations in ways that are overwhelmingly supportive of our national interest and objectives.

But we need to recognize that when we adopted our policy of cruelty we sabotaged these policies and achievements.  Consider the following:  Because of cruelty:

• We rendered incoherent a core element of our foreign policy — the protection of human dignity through the rule of law;
• We abused the letter and spirit of the Geneva Conventions;
• We weakened the Nuremberg principle of command responsibility;
• We damaged he very fabric of human rights and international law and fostered a spirit of non-compliance with both;
• We fostered the incidence of prisoner abuse around the world;
• We created a deep legal and political fissure between ourselves and our traditional allies; and
• We fueled public disrespect for our country around the world, thus hampering the achievement of our foreign policy objectives; and
• In the case of Germany, we committed actions flatly contrary to its inviolable constitutional requirement to protect human dignity.

None of this has been to our benefit, yet all of these harms were among the costs we suffered when we adopted the policy of cruelty.  These are among the self-inflicted wounds we caused to ourselves when we abused Zubaydah and Qahtani and adopted the policies that permitted their mistreatment and that of others.

C.  The Harm to our National Security

Let me now turn to the third category of harm, that to our national security.  Simply stated, our nation’s defenses were materially and demonstrably weakened, not strengthened, by the policy and practice of cruelty.  Cruelty made us weaker, not stronger.  Not only did it blunt our moral authority, it sabotaged our ability to build and maintain the broad alliances needed to prosecute the war effectively, it diminished our military’s operational effectiveness, and it had adverse consequences on the battlefield.

In the War on Terror, our national security is achieved not solely through military action, but also through the simultaneous use of ideas and communications, political persuasion, intelligence and law enforcement, and diplomacy.  The attacks on the World Trade Center, the Madrid railway station, and the London buses, among many others, evidenced a terrorist ideology that would obliterate human dignity.  Our defense to this assault cannot be solely military.  These terrorist acts emanated from specific ideas that fostered and propagated this cycle of hate — ideas that must be combated by our own ideas and ideals.  Our defense must also consist of rallying to our mutual defense those who share our values and our vision of a humane civilization.

This is not a war we can fight alone.  Our political and military strategy must be geared to building and sustaining a large, unified alliance that cooperates across the spectrum of the conflict.  Yet we will not be able to build this alliance unless we are able to articulate a clear set of political objectives and prosecute the war using methods consistent with those objectives; we will not be able to build this alliance unless we construct with our leading allies a common legal architecture that is true to our shared values; and we will not be able to establish that common legal architecture if were to insist, as we once did, on the discretionary right to apply cruel treatment to detainees.

When our nation adopted our policy of cruelty we compromised our ability to accomplish these national security objectives.  Here are four examples of the strategic damage to our national security that we suffered:

• First, because the cruel treatment of prisoners constitutes a criminal act in every European jurisdiction, European cooperation with the United States across the spectrum of activity — including military, intelligence, and law enforcement – diminished once this practice became apparent;
• Second, almost every European politician who sought to fully ally his country with the U.S. effort on the War on Terror incurred a political penalty as a consequence, as the political difficulties of Prime Ministers Tony Blair and Jose Maria Aznar demonstrated;
• Third, our abuses at Abu Ghraib, Guantanamo, and elsewhere perversely generated sympathy for the terrorists and eroded the international good will and political support that we had enjoyed after September 11; and
• Fourth, we lost the ability to draw the sharpest possible distinction between our adversaries and ourselves and to contrast our two antithetical ideals.  By doing so, we compromised our ability to prosecute this aspect of the war – the war of ideas – from the position of full moral authority.

All of these factors contributed to the difficulties our nation has experienced in forging the strongest possible coalition in the War on Terror.  But the damage to our national security also occurred not only at the strategic, but also at the operational and tactical military levels.  Consider these following five points:

• First, according to senior flag-rank officers in our military, the proximate cause of the Abu Ghraib debacle was the legal advice authorizing abusive treatment of detainees that issued from the Department of Justice’s Office of Legal Counsel in 2002;
• Second, other senior officers maintain that the first and second identifiable causes of U.S. combat deaths in Iraq were, respectively, Abu Ghraib and Guantanamo, because of their effectiveness as symbols in helping attract and field insurgent fighters into combat;
• Third, at various different points, some allied nations refused to participate in combat operations with us out of fear that, in the process, enemy combatants captured by their forces could be abused by U.S. or other forces;
• Fourth, at other times, allied nations refused to train with us in joint detainee capture and handling operations, also because of concerns about U.S. detainee policies.  Of course, if you don’t train together, you can’t fight together; and
• Fifth, our policy of treating detainees harshly could have stiffened our adversaries’ resolve on the battlefield by inducing them to fight harder rather than surrender because of fear of capture, and this could have led to loss of American lives.

Each of these points demonstrates how our policy of cruelty weakened our national security and our defenses.  Whatever intelligence obtained through our use of harsh interrogation tactics may have been, on the whole the military costs of these policies and practices greatly damaged our overall efforts and impaired our effectiveness in the war.

Every military officer I have spoken with on this issue – including dozens of Service Chiefs and other four-star admirals and generals – describe of the authorization to engage in cruel interrogations as contemptible and contrary to our national interest.  The reason for this was captured by in a May 2007 letter by General David Petraeus, who was at the time commander of forces in Iraq, to his troops.  He said:  “Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right. Adherence to our values distinguishes us from our enemy. This fight depends on securing the population, which must understand that we – not our enemies – occupy the moral high ground.”  Petraeus was right, but the policy of cruelty that we adopted at the start of the War on Terror went contrary to his advice.

I’ve spoken of the harms of torture, but was there a benefit?  I don’t see it, but there are many in our country who disagree.  Many are of the opinion that the only criterion by which to decide whether to use torture or not is whether it is effective in yielding actionable military intelligence.  This continues to be the view of many of the architects of the policy of torture in the past administration, who also maintain that torture was indeed instrumental in locating Osama bin Laden and otherwise keeping our country safe.

Are they right?  The weight of the evidence strongly suggests that they are not.  In December 2008, the Senate Committee on the Armed Services concluded in a report entitled “Inquiry into the Treatment of Detainees in U.S. Custody,” which was issued without dissent, that brutal interrogation techniques “damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemy, and compromised our moral authority.”  Such, too, was the conclusion of the Constitution Project’s report.  And this is also the reported conclusion of the Senate Select Committee on Intelligence’s still-classified, 6,000-page report on CIA interrogation, which is likely to be the definitive study on this issue.

But let’s suppose that the claims of those who support the torture polices were true, that the abuse did produce useful intelligence:  would the policies then be justified?  My answer would still be “No” – our values prohibit torture and the net results of its use – as I hope I’ve demonstrated – were overwhelmingly contrary to our national interest.

IV.          ACCOUNTABILTY

President Obama has commendably barred the use of cruel interrogation techniques, but he has said his administration would not further investigate past detention policies or actions.  There have been almost no prosecutions for the use of torture and, judging from current indications, there not likely to be any in the near term.  Similarly, those who allege they were victimized by torture have almost uniformly been barred from gaining access to the courts and obtaining a judicial remedy. It is as if a blanket amnesty shields all those who engaged in the practice of cruelty from the consequences of their actions.

It is difficult to accept this result.  Justice does not allow crimes to go unpunished or victims of deliberate harm to be prevented from seeking a remedy.  We cannot claim to support human rights while at the same time maintain that we are exempt from the consequences of violating those rights or from our own accountability.  We cannot hold others to standards we are unwilling to apply to ourselves.  If human rights are important to us – as they are – and their expanded observance around world to be in our vital national interest – as it is – then we cannot fail to recognize the damage that failing to hold ourselves accountable would continue to inflict.  How do we ask others to hold themselves accountable for torture if we’re unwilling to be accountable ourselves?

I recognize that we do not yet have the sufficient will as a nation to face this issue.  But I think there will come a time when we will.  That time will come when we as a nation more fully accept the truth of how we treated detainees.  We’ve made some progress, but more progress will be needed.  The release of the Senate Intelligence Committee report on CIA interrogations is the necessary next step.  That report will help strip away the veils and the euphemisms and, by doing so, will help bring clarity.  With that more precise understanding of the facts in our possession, we will then be able to turn with greater resolve to the unavoidable and necessary question of accountability.

V.        THE FUTURE

Before 9/11, the national consensus held that neither cruel treatment nor punishment could be applied to human beings.  This was — then — a consensus cemented by the convergence of our national values, our laws, our foreign policy interests, our human rights principles, and even our military doctrine.

Now, there is no longer a consensus.  Now, many Americans are of the view that cruel treatment or even torture may and should be applied against our enemies, or those who may possibly be our enemies, if doing so could make us safer.  And many others who have not yet abandoned our traditional abhorrence of cruel treatment are now asking how much abusive treatment can be applied lawfully to these captives.  What was once unspeakable is now a subject of polite conversation.  Cruelty, once held in disrepute, has been – astonishingly – rehabilitated, tolerated, and even embraced by many.

We know that, if there is another terrorist attack, the numbers of those who support cruelty will rise again.  They will press the case that the national security requires harsh interrogations, and demand that our values yield to the purported dictates of the threat.

This is why we need to restore now the national consensus against cruelty, why we need to revert to a legal standard that clearly outlaws cruel treatment anywhere and defines it as a criminal offense, and why we need to ensure accountability for those who engage in it.

The issue of cruelty cannot be reduced simply to what happens in the interrogation room or to whether some of the information obtained through its application may have had some use.  It is, as Sen. John McCain has said, about who we are as a nation.  It is about remaining faithful to our heritage and constitutional order.  It is about who we wish to become and what kind of world we wish to live in.  It is about protecting human dignity at home and abroad.  It is about mounting the most effective defense to the terrorist threat, a defense that is weakened when we depart from our values.  And it is about our understanding – to return to Camus’ formulation – that cruelty is the weapon whose use would destroy the very values we seek to protect.

My thanks again to the University for inviting to present the O’Brien Lecture and to each of you for being here.

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Alberto Mora served as the General Counsel to the Department of the Navy from 2001-2006 and was an outspoken critic of American policies regarding the treatment of detainees. Mora is currently Vice President, Secretary and General Counsel of Mars, Inc. He previously served as Vice President and General Counsel, International, for Wal-Mart Stores, Inc. He serves on the Boards of Directors Human Rights First and Freedom House and is a member of the Board of Advisors of the MSFS Program at Georgetown University.

Prof Harrison will spend 10-15 minutes discussing what motivated him to write the book and how it can be used to resuscitate strategy in the fields of foreign policy, national security and international business. Following the presentation, Professor Anthony Clark Arend, Director of MSFS, will moderate a panel discussion between Professor Harrison, Professor Alejandra Bolanos (from National Defense University) and Professor Audrey Bracey Deegan (formerly with Deloitte and McKinsey). The discussion will center around the differences and similarities between the security and business domains in terms of how strategy is conducted. Strategic Thinking in 3D argues that there are universal principals of strategy which transcend the traditional boundaries between national security and international business. The panel discussion will address the common threads of strategy, but also bring out some of the significant differences across the different fields.

Coffee and light snack will be served.

The Supreme Court issued its Opinion in Kiobel v. Royal Dutch Petroleum this morning. Chief Justice Roberts writing the Opinion of the Court:

We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.

.  .  .

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present  in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

WOW! I will attempt to post more– although I am going out of the country today and may be delayed.

HT: Paul Hughes

Alberto Mora

Former General Counsel at the U.S. Department of the Navy, Alberto J. Mora, will deliver the William V. O’Brien Lecture at Georgetown University on Tuesday, April 30 at 5:00 in McNeir Auditorium. The Lecture is open to the public. To register for the event please go to this link.

Mora served as General Counsel from 2001 to 2007 and was an outspoken critic of America policies regarding the treatment of detainees. In 2006, he was given the John F. Kennedy Profile in Courage Award. The announcement for the Award reads:

In December 2002, Alberto J. Mora, then general counsel of the United States Navy, was alerted by Navy investigators to reports that detainees held by the U.S. military at Guantanamo Bay were being subjected to cruel and unlawful interrogation practices. Mora, whose civilian position accorded him a rank equal to that of a four-star general, soon came to learn that the cruel and abusive practices of United States military interrogators at Guantanamo were the result of significant policy shifts at the highest levels of the U.S. government. Over the next three years, Mora waged a campaign inside the Bush Administration to prevent military and civilian leaders from codifying any policy that might implicitly or explicitly sanction the mistreatment of Guantanamo detainees as part of the war on terror.

Mora, a Republican who had led a distinguished career in public service and international law prior to his appointment to the Navy, argued that a policy allowing cruelty toward prisoners at Guantanamo left the door open for American military personnel to engage in torture of the kind that was later exposed at the Abu Ghraib prison in Baghdad, Iraq. Mora did not know of the abuse at Abu Ghraib when he warned Pentagon and other administration officials that the mistreatment of terror suspects and other prisoners would carry grave political consequences for the United States, and might expose U.S. interrogators and policy makers to criminal prosecution. In a 2004 internal memo to the Navy inspector general, Mora outlined his efforts to prevent the Administration from grounding policy in what he believed were flawed legal arguments that would permit the mistreatment of detainees and set off politically and morally disastrous chain reactions. The memo was made public in February 2006. Accounts of widespread prisoner abuse in Iraq, Afghanistan and at Guantanamo have continued to escalate. Earlier this year, Alberto Mora retired from his service to the U.S. government and returned to the private sector.

For his moral courage and his commitment to upholding American values, Alberto Mora is honored with the 2006 Profile in Courage Award.

Mora is currently Vice President, Secretary and General Counsel of Mars, Inc. He previously served as Vice President and General Counsel, International, for Wal-Mart Stores, Inc. He serves on the Boards of Directors Human Rights First and Freedom House and is a member of the Board of Advisors of the MSFS Program at Georgetown University.

THE WILLIAM V. O’BRIEN LECTURE IN INTERNATIONAL LAW AND MORALITY

The William V. O’Brien Lecture in International Law and Morality was established by the School of Foreign Service and the Department of Government to honor Dr. O’Brien for his many years of distinguished service to Georgetown University on the occasion of his retirement in 1993.

Born and raised in the Washington area, Dr. O’Brien was associated with Georgetown University for over half a century.  He received his B.S.F.S., M.S.F.S., and Ph.D. from Georgetown.  Dr. O’Brien joined the faculty of the Department of Government in 1953, became a full professor of Government in 1966, and twice served as chairman of the Government Department (1974-77) and (1983-84).  He became Professor Emeritus upon his retirement.  Dr. O’Brien passed away in 2003.

Dr. O’Brien’s scholarship on war, morality and the legal dimensions of international affairs has gained him international recognition.  Among his many published works are The Conduct of Just and Limited War, Law and Morality in Israel’s War with the PLO, and The Nuclear Dilemma and the Just War Tradition.  Dr. O’Brien was also an important figure in contemporary policy debates, and was active as an advisor to the American Catholic Bishops on morality and strategic nuclear deterrence.

The O’Brien Lecture brings a distinguished scholar or practitioner to Georgetown to speak on an aspect of international law and morality.  Dr. O’Brien gave the inaugural lecture on April 16, 1993.  Previous lecturers have included Thomas M. Franck, Father J. Bryan Hehir, Louis J. Freeh, Abiodun Williams, Mark P. Lagon, and Paul D. Clement.

Professor Myres McDougal

My dear friend (of over forty years!) and former fellow board member of the Virginia Journal of International Law, Steve Bainbridge, posts:

When I took International Law at Virginia, it turned out to be a course not about law but about the legal methodology of Myres McDougal. I hated it. No, I mean I hated it. Incomprehensible mumbo jumbo. So imagine my amusement when I ran across this tidbit in Henry Manne’s oral history:

I went [to Yale Law School on a post-graduate fellowship] and discovered a man named Myres McDougal, who was one of the more famous law professors of the era. He and Harold Lasswell, the famous political scientist, had devised a schemata for using the social sciences to approach law. It was called Law, Science, and Policy. All graduate students were required to immerse themselves in this, if you’ll pardon me, garbage. I say “garbage” because I think there’s only one rigorous social science and that’s economics, and Law, Science, and Policy had no economics in it whatsoever. What they thought they were doing, I don’t know. Today there are no remnants of it around.

Henry’s a lot smarter than I am (I take solace in the fact that he’s a lot smarter than pretty much everybody), so if Henry thought it was garbage I find myself in the best of company.

So, I have to confess that this post made me smile. It is true that the writings of McDougal and Lasswell are not models of clarity– Stunk and White would not be happy. BUT, as one who still uses their works in my International Legal Philosophy class and who has drawn upon their insights in my own writing, I do think that the jurisprudential approach developed by Myres McDougal and Harold Lasswell has made– and continues to make– an important contribution in the field of international law.

So, just a few thoughts.

First,  the M-L school was one of the first approaches to international law that sought to counter the claims made by the classical realist international relations scholars– like Hans Morgenthau– that international law doesn’t matter in critical areas. (See, for example, McDougal’s “Law and Power” from 1952.)

Second, McDougal and Lasswell do an excellent job of situating the law-making process within the broader social context. It is here that they connect nicely to a variety of other social sciences.  (See, McDougal and Lasswell’s “The Identification and Appraisal of Diverse Systems of Public Order.”)

Third, they posit the importance of “human dignity” to international system. While I am not a fan of their definition of human dignity and think that the way they seek to incorporate it in the process of determining the existence of a rule of international law is incorrect, their willingness to engage the concept is quite useful from an ethical, if not legal, perspective and can aid our understanding of the role of global institutions today. (See, for example, the project that Mark Lagon and I have undertaken to explore human dignity in the context of international institutions and the changing international system.)

Fourth, despite the claim that “[t]oday, there are no remnants of it around,” the McDougal-Lasswell approach gave rise to a great deal of scholarship in international law– with numerous writers using modified versions of the M-L framework. As my late friend (and also former fellow Virginia Journal of International Law board member), David Bederman explained in 2006 in the American Journal of International Law, the approach had a huge impact on the field as it was first developed:

Beginning with his 1952 essay, Law and Power, Myres S. McDougal (with his numerous colleagues, collaborators, and followers) embarked on defining the contours of this new, policy-oriented international jurisprudence. Then, in a remarkable series of articles (many of which presaged book-length treatments), this theory was fully elaborated. So powerful was this new approach — and generally unprecedented and subversive — that it naturally started to draw sharp critiques^. (footnotes omitted)

And the influence of this approach has continued over the years.  Scholars such as John Norton Moore, Ricard Falk, Florentino Feliciano, Lung-chu Chen and many others have used the insights of the approach. Numerous current treatises and articles use and draw upon McDougal and Lasswell. Indeed, in a recent 1999 symposium issue of the American Journal of International Law on method in international law, an article by Siegfried Wiessner and Andrew R. Willard was titled, “Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity,” and used the McDougal-Lasswell approach. And Oona Hathaway had an excellent article in 2007 entitled “The Continuing Influence of the New Haven School.” And two articles in the January 2012 issue of the American Journal of International Law cite and discuss McDougal and Lasswell.

So, while I don’t recommend McDougal and Lasswell as bedtime reading, I do find their work to have continuing relevance in international law. But if you have not read any of their writings, I recommend beginning with John Norton Moore’s “Prolegomenon to the Jurisprudence of Myres McDougal and Harold Lasswell.” It is the Rossetta Stone for their work!

Michael Walzer

“IS THE MILITARY USE OF DRONES ETHICALLY DEFENSIBLE?– YES AND NO”

MICHAEL WALZER

AUTHOR OF, JUST AND UNJUST WARS

13 March 2013

5:30pm – 7:00pm

Intercultural Center Auditorium

Georgetown University

Georgetown University’s Master of Foreign Service (MSFS) and Berkley Center for Religion, Peace and International Affairs are pleased to offer this unique talk by Michael Walzer on a burning ethical issue of the day: targeted killing with drones. As one of the most renowned scholars and public intellectuals on just war theory and the ethics of the use of force, Professor Walzer will discuss the history of targeted killings and assassinations, and of the moral arguments for and against that kind of killing.  He will examine whether the invention of the drone changes those moral arguments, which he will argue that it does in important respects.  Professor Walzer will explore on what grounds one can defend the use of drones, under what conditions and qualification.  He will raise and invite from those attending critiques of a qualified defense of using drones—putting forward an invitation to worry.

Michael Walzer:

As a professor, author, editor, and lecturer, Michael Walzer has addressed a wide variety of topics in political theory and moral philosophy: political obligation, just and unjust war, nationalism and ethnicity, economic justice and the welfare state.  His books (among them Just and Unjust Wars, Spheres of Justice, The Company of Critics, Thick and Thin: Moral Argument at Home and Abroad, and On Toleration) and essays have played a part in the revival of practical, issue-focused ethics and in the development of a pluralist approach to political and moral life.  Walzer is Professor Emeritus of Social Science at the Institute for Advanced Study, Princeton, NJ as well as a Contributing Editor for “The New Republic,” and co-editor of “Dissent,” now in its 56th year.  He is currently working on the history and prospects of national liberation and also on the third volume of The Jewish Political Tradition, a comprehensive collaborative project focused on the history of Jewish political thought.

To RSVP for the event, please go here.

The Master of Science in Foreign Service Program

Georgetown University School of Foreign Service

and

Air University Air War College

present

The Strategic Implications of the U.S. Rebalancing Towards Asia

Three military officers present differing perspectives of the current National Military Strategy

February 19th

9:00AM, ICC 7^th Floor, Executive Conference Room

]]> http://anthonyclarkarend.com/humanrights/the-strategic-implications-of-the-u-s-rebalancing-towards-asia-feb-19-9am-georgetown-university/feed/ 0 http://anthonyclarkarend.com/humanrights/the-strategic-implications-of-the-u-s-rebalancing-towards-asia-feb-19-9am-georgetown-university/ http://feedproxy.google.com/~r/AnthonyClarkArend/~3/CecDgs2GMUE/ http://anthonyclarkarend.com/humanrights/kenneth-andersons-discussion-of-judicial-oversight-of-drones/#comments Sun, 10 Feb 2013 22:17:40 +0000 Anthony Clark Arend http://anthonyclarkarend.com/?p=3792

Professor Kenneth Anderson

Over at Lawfare my friend Kenneth Anderson comments on my earlier post on judicial oversight of drones:

Georgetown professor Anthony Clark Arend – old friend to many of us at Lawfare – has a new short post on whether judicial oversight of drones would be a good idea – or constitutional.  He is skeptical on both counts (this can be added to the list that Jack gave us earlier of commentary on the drone white paper that includes Michael Ramsey and Ilya Somin on originalism and a judicial role in review of US citizen targeting):

But what if there were a legislative act– approved by the President– establishing a specific arrangement for judicial review?

I am still inclined to think that if such act were subject to  judicial testing it would be found unconstitutional because it would be involving the courts in something that is inherently within the realm of the political branches– who is a combatant in an armed conflict.

Of course- this is not to say that I favor the current use of drones as a matter of policy, nor that I don’t worry about whether the drones are being used in a manner that complies with the laws of war. But those are concerns are different from the question of whether judicial review of drone use is constitutional.

I think this is right.  Arend also raises some questions about whether Congress could insist on a role in defining who can be targeted in war, or whether this treads impermissibly on the executive’s role.  Whether Congress could directly do this or not, it does seem to me that the administration would be on politically easier ground in saying, as Eric Holder did in last year’s Northwestern speech in the section on targeting American citizens, that not all “due process” is “judicial process” – if it were possible to point to statutory reform of the oversight process.  Or at a minimum some acknowledged special process (even if not statutory, but by agreement between Congress and the executive), by which putting an American citizen on a target list gives Congress a formalized mechanism to offer an independent, though necessarily secret, review.

Judicial review, ex ante or ex post, in my view is likely unconstitutional, and in any case it is a not a good idea – these are matters committed to the political branches.  A judge is not a proconsul.  The check in this matter rests with a political branch.  But it would be most solidly grounded for the long term – institutional settlement at its most fundamental – were the two political branches to come together in such a way as to provide a permanent, not merely ad hoc structure for oversight of this kind of particularly sensitive decision.  However, drawing from Jack’s earlier post, notwithstanding the desirability of statutory reform in this area, we should not hold our breaths.

I guess it goes without saying that I agree with his analysis.

Former Secretary of Defense Dr. Robert Gates today indicated support for some form of “check” on the President’s authority to use remotely controlled aerial vehicles against American citizens. The AP reports:

Former Defense Secretary Robert Gates says he finds merit in “some check” on a president’s ability to order drone strikes against American al-Qaida suspects overseas, lending support to creating a special court that would review such requests.

“I think that the rules and the practices that the Obama administration has followed are quite stringent and are not being abused. But who is to say about a future president?” said Gates, Pentagon chief for Presidents George W. Bush and Barack Obama.

The potential model that some lawmakers are considering for overseeing such drone attacks is a secret court of federal judges who now review requests for government surveillance in espionage and terrorism cases.

“Something that would give the American people confidence that there was, in fact, a compelling case … to launch an attack against an American citizen, I think just as an independent confirmation or affirmation, if you will, is something worth giving serious consideration to,” Gates told CNN’s “State of the Union” in an interview broadcast Sunday.

The issue gained momentum in the run-up to the confirmation hearing last week for John Brennan, Obama’s top counterterrorism adviser who helped managed the drone program, to be CIA director. Before the hearing, Obama directed the Justice Department to give the congressional intelligence committees access to classified legal advice providing the government’s rationale for drone strikes against American citizens working with al-Qaida abroad.

Demands for such information grew after the leak early last week of an unclassified memo on how decisions are made to target U.S. citizens abroad. The memo says it is legal for the government to kill U.S. citizens abroad if it believes they are senior al-Qaida leaders continually engaged in operations aimed at killing Americans, even if there is no evidence of a specific imminent attack.

The leader of the Senate Intelligence Committee, Sen. Dianne Feinstein, said she intended to review proposals for “legislation to ensure that drone strikes are carried out in a manner consistent with our values” and she suggested something similar to the Foreign Intelligence Surveillance Court. That special court reviews requests on government surveillance in espionage and terrorism cases.

Gates said that “this idea of being able to execute, in effect, an American citizen, no matter how awful, having some third party having a say in it or perhaps … informing the Congress or the intelligence committees or something like that, I just think some check on the ability of the president to do this has merit, as we look to the longer term future.”

A September 2011 drone strike in Yemen killed Anwar al-Awlaki and Samir Khan, both U.S. citizens. A drone strike two weeks later killed al-Awlaki’s 16-year-old son, a Denver native.

The strikes came after U.S. intelligence concluded that the elder al-Awlaki was senior operational leader of al-Qaida in the Arabian Peninsula plotting attacks on the U.S., including the abortive Christmas Day bombing of an airplane landing in Detroit in 2009.

In Thursday’s hearing, Brennan defended drone strikes as necessary, saying they are taken only as a “last resort,” but he said he had no qualms about going after Anwar al-Awlaki.

He said the White House had considered the concept of the special courts, and he said he would be open to discussing it because “American citizens by definition are due much greater due process than anybody else by dint of their citizenship.”

The are a variety of critical policy and legal questions surrounding the use of drones (see Matthew Waxman’s excellent video on some of them). But I am not sure establishing a procedure for judicial review is constitutional– or wise for that matter. The key argument for the lawfulness of using drones against American citizens is that those citizens are combatants in an armed conflict against the United States. To subject the determination of whether a person is a combatant to judicial review would seem to rather clearly violate the separation of powers requirements in the Constitution.

First, the Constitution vests the war powers in the political branches of government– the Legislative and Executive branches. Article I, sec. 8, empowers Congress with a variety of war powers, including the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” And, Article II, sec. 2 proclaims that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

Second, even while there is much debate about what the Constitution meant when it designated the President as “Commander in Chief,” it has nearly universally been understood to mean that the President is responsible for the conduct of armed conflict. In Federalist 69, Hamilton notes that the authority of the President as commander in chief would give to the president “the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy.”

There is, however, a potential role for Congress. In his separate opinion in Bas v. Tingy (1900), Justice Case notes:

Congress is empowered to declare a general war, or Congress may wage a limited war, limited in place, in objects, and in time. If a general war is declared, its extent and operations are only restricted and regulated by the jus belli, forming a part of the law of nations, but if a partial war is waged, its extent and operation depend on our municipal laws.

What Justice Case suggests is that if there has been a declaration of war, the only limit on the president’s authority in the conduct of hostilities is the jus belli, what today we would call the laws of armed conflict– codified in instruments like the Hague and Geneva Conventions and also found in customary international law. If, however, Congress authorizes the use of force through means other than a formal declaration, (partial war), Congress may be able to impose certain limitations. In the current armed conflict against Al Qaeda and associate forces, Congress has, in fact, authorized war by means other than a formal declaration of war– the Authorization for the Use Military Force, adopted in 2001.

But could Congress regulate the determination of whether a specific person or type of person is a combatant?  In Ex Parte Milligan, the Supreme Court noted:

Congress has the power not only to raise and support and govern armies, but to declare war. It has therefore the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. (emphasis added)

To me, this indicates that the President has sole authority to determine who the specific combatants are when conducting a campaign.

So, if the Constitution delegates the war powers to Congress and the President. And if it would seem that the President has the sole authority to determine who a combatant is, how could there be a legitimate role for the the Judiciary?

In fact, courts have traditionally kept out of disputes between Congress and the President about the extent of the war powers. In case after case, courts have typically ruled that such cases are nonjusticiable– using either the political question doctrine or some other justiciabilty doctrine.

But what if there were a legislative act– approved by the President– establishing a specific arrangement for judicial review?

I am still inclined to think that if such act were subject to  judicial testing it would be found unconstitutional because it would be involving the courts in something that is inherently within the realm of the political branches– who is a combatant in an armed conflict.

Of course- this is not to say that I favor the current use of drones as a matter of policy, nor that I don’t worry about whether the drones are being used in a manner that complies with the laws of war. But those are concerns are different from the question of whether judicial review of drone use is constitutional.

John O. Brennan

Today’s New York Times reports:

A secret legal review on the use of America’s growing arsenal of cyberweapons has concluded that President Obama has the broad power to order a pre-emptive strike if the United States detects credible evidence of a major digital attack looming from abroad, according to officials involved in the review.

That decision is among several reached in recent months as the administration moves, in the next few weeks, to approve the nation’s first rules for how the military can defend, or retaliate, against a major cyberattack. New policies will also govern how the intelligence agencies can carry out searches of faraway computer networks for signs of potential attacks on the United States and, if the president approves, attack adversaries by injecting them with destructive code — even if there is no declared war.

The rules will be highly classified, just as those governing drone strikes have been closely held. John O. Brennan, Mr. Obama’s chief counterterrorism adviser and his nominee to run the Central Intelligence Agency, played a central role in developing the administration’s policies regarding both drones and cyberwarfare, the two newest and most politically sensitive weapons in the American arsenal.

The Times asserts that “International law allows any nation to defend itself from threats, and the United States has applied that concept to conduct pre-emptive attacks.”

A few comments.

First, there is a debate as to whether “International law allows any nation to defend itself from threats. . .” Article 51 of the United Nations Charter provides that:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. (emphasis added)

There is a long debate about the extent to which customary international law and interpretations of Article 51 allow for the use of force in response to a threat and while I believe that it is lawful to response to some threats, the Times claim is a bit too simplistic.

Second, and more importantly, I worry about secret legal claims. I understand the complexity of cyber operations and not wanting to state our legal case such that potential adversaries are informed about our capabilities. But the hallmark of law is that it is to be public. And if we seek to advance the content of customary international law in the cyber field, we need to assert our legal claims in a public way. It would seem to be that the broad contours of our legal analysis could be made public in such a way that we would not tip our hat.