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

What the Internet Age Means for Female Scholars

Is the Internet-driven transformation of legal scholarship good for the girls, or bad for the girls? Will it remove some of the handicaps that have dogged women\u27s efforts to join the ranks of scholarly superstars ? Or will it only increase the professional obstacles still faced by women in legal academia? In this short Essay, the author tries to predict some of the promises and perils that the Internet holds for women in the legal academy

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

Privacy and Power

Something has gone wrong in modem America, argues Jeffrey Rosen in The Unwanted Gaze. Our medical records are bought and sold by health care providers, drug companies, and the insurance industry. Our e-mails are intercepted and read by our employers. Amazon.com knows everything there is to know about our reading and web-browsing habits. Poor Monica Lewinsky\u27s draft love letters to President Bill Clinton were seized by the villainous Ken Starr, and ultimately plastered all over the nation\u27s newspapers. To Rosen, the nature of the problem is clear: These examples are all part of a troubling phenomenon that affects all Americans: namely, the erosion of privacy at home, at work, and in cyberspace, so that intimate personal information ... is increasingly vulnerable to being wrenched out of context and exposed to the world. Rosen is, of course, hardly unusual in viewing all these issues as quintessential privacy violations. In the past few years the media seem to have woken up to privacy issues, and most of us have been sympathetic readers of dozens of popular articles addressing just such a range of privacy violations. At the moment, the language of privacy seems to be the only language we have for talking about issues such as workplace e-mail monitoring, electronic cookies, medical records, and Monica\u27s love letters. Is this a good thing? Unquestionably, Rosen\u27s examples are troubling, but are they all troubling in precisely the same way? Does it make sense to analyze them all as solely or primarily examples of the erosion of privacy ? Moreover, is there a coherent and articulate conception of privacy that underlies all of Rosen\u27s examples

Duck-Rabbits and Drones: Legal Indeterminacy in the War on Terror

In the days and weeks immediately following the 9/11 attacks, “the law” offered little to lawyers or policy-makers looking for guidance. Indeed, for many the events of 9/11 became the legal equivalent of a Rorschach test: depending on the observer, the 9/11 attacks were variously construed as criminal acts, acts of war, or something in between, thus fitting into (or triggering) any of several radically different legal regimes. Divergent interpretations of the law are common, of course. Legal rules often contain an element of ambiguity, and the “facts” to which law must be applied can frequently be construed in multiple ways. But in the wake of 9/11, lawyers and policy-makers faced an even more profound problem: different conceptualizations of what happened on 9/11 didn’t simply reflect or suggest a different interpretation of legal rules, but actually triggered radically different legal regimes. The “facts” could be described, with equal plausibility and honesty, in substantially different ways. As a result, there was no clear “legal” basis for choosing one legal regime over another, and law became not merely ambiguous, but effectively indeterminate

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

National Security in the Information Age

The information environment has been changing right along with the broader security environment. Today, the information environment connects almost everyone, almost everywhere, almost instantaneously. The media environment has become global, and there’s no longer such thing as “the news cycle” —everything is 24/7. Barriers between US and global publics have virtual disappeared: Everything and anything can “go viral” instantly, and it’s no longer possible to say one thing to a US audience and another thing to a foreign audience and assume no one will ever set the statements side by side. The Pakistani military has a very clear idea of what the Secretary of Defense tells Congress about Pakistan, for instance—and Congress has an equally clear idea of how Pakistani leaders talk about the United States to their domestic constituencies. Technological changes and lower costs have also democratized the media and information environment: Internet and cell phone access is increasingly ubiquitous, and individuals and organizations are ever more reliant on electronic communication. Today, news, commentary, and video can be produced and accessed equally by first world media producers, Washington decision-makers, Iowa housewives, Afghan shepherds, Chinese university students, Colombian insurgents, and Al Qaeda members. As with the security environment more broadly, the rapidly changing information environment creates both new challenges and new opportunities for the US government. The author emphasizes that this is true across the executive branch. All USG agencies, from Defense to State to Treasury and beyond, are struggling to adapt anachronistic programs and policies

Humanitarian Intervention: Evolving Norms, Fragmenting Consensus (Remarks)

Traditionally, the evolution of customary international law was understood as a gradual process: in some idealized model, we might see first a few states, and then a few more, implicitly agreeing to follow a practice, and then we would gradually begin to see additional states doing the same thing. We would also gradually accumulate evidence that these various states are acting in such a way because they consider themselves legally bound to do so. Then, over time, we’ll see more and more states following suit both in word and deed, until at some point we can say with a great deal of confidence that such and such has evolved into a binding norm of customary international law. That’s the idealized process through which norms of customary international law develop. In real life, of course, it’s rarely so neat and tidy. In fact, much of the time, the evolution of customary international law looks less like a gradual, trouble-free emergence of consensus than a continual process of contestation—a continual process of resistance and conflict between states, if you will. By “conflict” the author doesn’t necessarily mean armed force, but rather diplomatic conflict of all sorts: dueling demarches, dueling public statements, and so on. Norms relating to humanitarian intervention offer a typical example. We are in a period in which we are seeing a norm struggling to emerge, if you will, but that process is not a smooth one, has not been a smooth one, and is unlikely to be a smooth one in the future. Indeed, when we think about norms related to humanitarian intervention or the Responsibility to Protect, if anything what we have seen has been a process of reaction, counter-reaction, counter-counterreaction and counter-counter-counter-reaction. We are still going through that cycle

Protecting Rights in the Age of Terrorism: Challenges and Opportunities

Depending on whom you speak to these days (and the mood in which you find them), international law is either practically moribund, or it\u27s more vibrant and important than it has been for years. To take the good news story first, international law issues have been at the forefront of public discourse over the past few years. Pick your issue: the U.N. Charter and the international law on the use of force? The Convention Against Torture? The Geneva Conventions? You\u27ll find it on the front page these days. Journalists are phoning international law professors for background briefings, and students are flocking to courses on international law and human rights. On law school faculties, even those grumpy sorts who have always greeted the mention of international law with a skeptical harrumph have taken to buttonholing their international law colleagues in the hallways, demanding an explication of how the Torture Convention regards so-called stress and duress tactics. Even the Supreme Court has weighed in, with recent decisions referencing everything from the European Convention on Human Rights (cited by Justice Kennedy in Lawrence v. Texas) to the Hague and Geneva Conventions (cited by Justice O\u27Connor in Hamdi v. Rumsfeld). For international lawyers who have long labored in obscurity, this is definitely good news. Right? Right

The Stories We Must Tell: Ugandan Children and the Atrocities of the Lord\u27s Resistance Army

This essay is about stories--the stories that we are told and the stories that we, in turn, tell to others. It has become a truism that we have lost our faith in master narratives and that the real is composed of many competing narratives, all fragmentary, contradictory, overlapping. In this article, the author discusses the problems this view poses for those of us who see ourselves as advocates and activists rather than solely--or primarily--as scholars, but who nonetheless seek to combine social activism with intellectual rigor and honesty. In particular, she discusses the dilemmas this creates for the human rights activist, who is committed both to acknowledging diverse cultures, with all their internal complexity, and to being a strong advocate for change on behalf of those whose rights are trampled. (The author is not unaware of the problematic nature of the terms she has just used; to speak blithely of cultures --and, indeed, to speak of rights --is to enter into dangerous territory.) The author begins by discussing the decade-old conflict in northern Uganda between the government and the Lord\u27s Resistance Army (LRA). After briefly providing background information on the conflict, she describes the many contradictory stories she heard during her time in Uganda about the reasons for the conflict\u27s persistence. The author discusses the difficulty of assessing these competing narratives, as well as the impossibility of ever getting at the truth about the conflict. She then turns to the stories of children who have survived months or years in rebel captivity, and the author ends by discussing the ways in which these highly personal narratives force us to insist that some things, at least, are absolute