Kenneth Anderson

Kenneth Anderson

Kenneth Anderson is professor of law. He teaches and writes in the areas of business and finance, both domestic and international; law and economics; and public international law, international organizations, human rights, and the laws of war. His current research agenda for 2010-11 focuses on targeted killing and drone warfare in armed conflict, and robotics and the law generally; global governance, global civil society and legitimacy; financial regulation reform (with Steven L. Schwarcz); and concept of proportionality in the law of war, the philosophy of value, and cost-benefit analysis. Professor Anderson's book on UN-US relations, Returning to Earth: What Multilateral Engagement Means in UN-US Relations, will appear in 2011 from The Hoover Institution Press; and together with Duke University's Steven L. Schwarcz, he is at work on "Reforming Financial Regulation" for Oxford University Press. Editorial board member of the Journal of Terrorism and Political Violence and political sciences advisory editor to the Revista de Libros (Madrid), Professor Anderson actively blogs at the Volokh Conspiracy and the international law blog Opinio Juris. He is a contributor to the Times Literary Supplement, Revista de Libros, Wall Street Journal, Weekly Standard, New York Times Magazine, Financial Times, Policy Review, and other general interest reviews. Professor Anderson will be a visiting professor at the University of Virginia School of Law in Spring 2011.

 

Press publication of selections from Edward Snowden’s purloined National Security Agency documents has focused attention on issues of surveillance.  In the months and years before those May 2013 revelations, however, the secrecy and accountability debate focused on drone warfare, not on NSA surveillance.  In the drone warfare secrecy and accountability debate, at issue was (and still is, just muted today) public disclosure of drone strikes and targeted killing by the CIA, operating under the authority of Title 50 of the United States Code.

The end of the first Obama term saw critics sharply intensify a public campaign aimed at politically, morally, and legally delegitimizing drone warfare. The campaign continues today. Those who unapologetically endorse drone warfare need to understand that the soft underbelly of counterterrorism conducted using drones and targeted killing is the legitimacy of these programs’ secrecy, accountability, and oversight. Legitimacy is the soft underbelly in that it is vulnerable and needs shoring up; it’s vulnerable because in a democracy, where government is accountable to the people, of course such issues have to be addressed.  If they are not, continually and forthrightly, silence raises questions about whether the American people should believe their own officials as to what these programs do and how they do it.

Many critics, to be sure, regard accountability and oversight as a procedural stalking horse for delegitimizing drone warfare as such, and particularly drone programs conducted by the CIA.  No process of either targeting or transparency will ever be enough; they will happily take whatever gains are offered by way of transparency as grounds to ask for more.  The appetite grows with the eating.  Irrespective of political goal, however, critics are not wrong to question the adequacy of the accountability mechanisms and oversight of these programs.

Clearly, there is room for certain reforms of secrecy, accountability, and oversight structures, but reform should proceed under two fundamental premises. First, there are legitimate government secrets. Second, accountability and oversight are the responsibility of the political branches alone, not of unelected and unappointed individuals such as Edward Snowden. These two premises are, importantly, not merely claims of politics or national security necessity; they are propositions about legitimacy and its terms.  Moreover, this is not simply a call for transparency in the form of more speeches and statements by senior officials, though those have been a vital tool of articulating national security law and its evolution, and of defending its legitimacy.  It is about reform at the statutory level — and one might begin with Title 50’s definition of “covert action” as a prelude to oversight processes that flow from it.

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President Obama’s May 23 speech on counterterrorism policy at the National Defense University declared that the U.S. government prefers to capture terrorist suspects, where feasible, rather than kill them with drone strikes.  The president (and the White House Fact Sheet on drone warfare policies that accompanied his speech) was addressing a widespread criticism made from the beginning of the Obama administration’s first term.  Having announced in advance that Guantanamo was to be closed — and with Congress having cut off nearly completely the ability to bring detainees captured abroad into the United States (whether for detention or trial) — the Obama administration found itself with no politically acceptable location for detention.  It therefore appeared to have a preference for killing terrorist adversaries with drone strikes.

The administration has been struggling for several years to articulate a response to this perception.  It has been hampered by official secrecy around the drone programs, as well as by its own failure to challenge critics’ implicit assumption that there is a moral, perhaps even legal, obligation to seek capture over kill. The administration seems reluctant to explain clearly that those targeted are already in the legal category of being subject to lethal force as a first — not second or last — resort.  When it comes to deciding whether to kill or to capture these people, having a place to detain them is legally and morally neither here nor there; they are in fact lawful targets for lethal force in an armed conflict, even without evaluation of imminent threat or feasibility of capture, without being given any warning or option of surrender, and regardless of the available options for detention or any other related considerations.

Criticism of the presumed kill-over-capture preference takes one form on the right and another on the left.  For conservative critics — particularly former Bush administration officials such as John Yoo — the issues are threefold.  One is the hypocrisy of what conservative critics see as a draconian use of force by an administration that is supposedly morally purer than its predecessor yet prefers kill over capture simply because it means not paying the political price of accepting the continued utility of Guantanamo. In this view, the Bush administration was more humanitarian because it sought to capture suspects rather than kill them outright, even if it meant detaining them indefinitely outside of the criminal justice system.  A second issue is the assumed loss of valuable intelligence that live suspects could provide. At the same time, Yoo and other conservative critics also argue that it is a mistake for the administration to concede that it prefers capture over kill, because eschewing the full scope of targeting authority on political grounds weakens the legal claim that this is an armed conflict like any other.

For the domestic and international left, by contrast, the issue is that there is a moral obligation and indeed (drawing on human rights law) a legal requirement to seek capture over kill in a sort of parsimony of force. This line of reasoning has the potential to become a means of drawing the judiciary into reviewing lethal targeting decisions; if detainees captured abroad and held at Guantanamo are permitted habeas review of the decision to detain them, surely there is an even greater requirement of habeas or judicial review prior to the decision to kill, rather than capture, them?

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Over the last four years, nearly all the attention of commentators—supportive and critical alike—regarding US counterterrorism operations abroad has been focused on drone strikes. While drone warfare issues are important, it is a mistake for the public debate over US counterterrorism operations abroad to be so narrowly confined to targeted killing without considering the broader objective of denying terrorists territory.

Increasingly, the US government’s counterterrorism strategy has embraced the view that although targeted killing of identified terrorist leaders is highly successful and essential, long-term strategy must also ensure that terrorist groups neither gain control of territory nor maintain territorial safe havens in which to regroup, train, rebuild, and finally launch attacks abroad.  Counterterrorism thus has a territorial element separate from targeted killing.

Territorial denial takes two distinct forms.  One form targets terrorists who establish safe haven in some ungoverned or lightly governed part of a weak state, or who are allowed such by a sympathetic state.  The terrorist group is able to inhabit territory as a matter of “physical” geography—it gets a place to hide—but it does not politically govern the territory or its population. The other form of territorial denial focuses on terrorists attempting to establish governing control of the areas they inhabit.

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