Drones and the International Rule of Law

This essay will proceed in four parts. First, it will briefly discuss the concept of the international rule of law. Second, it will offer a short factual background on US drone strikes (to the extent that it is possible to provide factual background on a practice so shrouded in secrecy). Third, it will highlight some of the key ways in which post 9/11 US legal theories relating to the use of force challenge previously accepted concepts and seek to redefine previously well-understood terms. Fourth, it will offer brief concluding thoughts on the future of the international rule of law in light of this challenge

The Constitutional and Counterterrorism Implications of Targeted Killing : Hearing Before the S. Judiciary Subcomm. on the Constitution, Civil Rights, and Human Rights, 113th Cong., April 23, 2013 (Statement by Professor Rosa Brooks, Geo. U. L. Center)

Mr. Chairman, the mere mention of drones tends to arouse strong emotional reactions on both sides of the political spectrum, and last week\u27s tragic events in Boston have raised the temperature still further. Some demonize drones, denouncing them for causing civilian deaths or enabling long-distance, video game-like killing, even as they ignore the fact that the same (or worse) could equally be said of many other weapons delivery systems. Others glorify drones, viewing them as a low- or no-cost way to take out terrorists wherever they may be found, with little regard for broader questions of strategy or the rule of law

The Story of Ewing: Three Strikes Laws and the Limits of the Eighth Amendment Proportionality Review

In 1994 California enacted the nation\u27s harshest three strikes law. Under this law, any felony can serve as a third strike, and conviction of a third strike requires a mandatory prison sentence of 25 years to life. In Ewing v. California, 538 U.S. 11 (2003), the Supreme Court held that sending a drug addict who shoplifted three golf clubs to prison for 25 years to life under the three strikes law did not violate the cruel and unusual punishment clause of the Eighth Amendment. The chapter for the forthcoming Criminal Law Stories tells the story of the Ewing case, describing Gary Ewing’s life, the crime that became his third strike, and each stage of his case. It describes all of the players and brings to life the oral argument and the Supreme Court’s opinion. This chapter also explores three questions: First, why did California law impose such a draconian sentence for such a minor offense? The chapter tells the story of the voter initiative that enacted the three strikes laws, the unsuccessful efforts to amend the law, and it describes the way the law has been enforced by California’s elected district attorneys and construed by its courts. Second, why wasn\u27t such a sentence prohibited by the cruel and unusual punishment clause? The chapter reviews the Supreme Court’s prior Eighth Amendment cases and analyzes the majority and dissenting opinions in Ewing. The chapter concludes with a discussion of the question what limits -- if any -- the Eighth Amendment imposes on the state\u27s authority to replace policies based on rehabilitation, retribution, and individualized sentencing with a policy that seeks to protect society by incapacitating recidivists

Drones and Cognitive Dissonance

There’s something about drones that makes sane people crazy. Is it those lean, futurist profiles? The activities drone technologies enable? Or perhaps it’s just the word itself–drone–a mindless, unpleasant, dissonant thrum. Whatever the cause, drones seem to produce an unusual kind of cognitive dissonance in many people. Some demonize drones, denouncing them for causing civilian deaths or enabling long-distance killing, even as they ignore the fact that the same (or worse) could be said of many other weapons delivery systems. Others glorify them as a low-cost way to “take out terrorists,” despite the strategic vacuum in which most drone strikes occur. Still others insist that US drone policy is just “business as usual,” despite the fact that these attacks may undermine US foreign policy goals while creating an array of new problems. It is worth taking a closer look at what is and is not new and noteworthy about drone technologies and the activities they enable. Ultimately, “drones” as such present few new issues—but the manner in which the US has been using them raises grave questions about their strategic efficacy and unintended consequences. In fact, the legal theories used to justify many US drone strikes risk dangerously hollowing out the rule of law itself