In a room full of computer screens, a US civilian with a joystick on the console kills a man thousands of miles away. Having aced a course on drones with ferocious names like Reaper, Hunter, and Tigershark, he is competent to take down a target — a dangerous terrorist, a drug lord connected with the Taliban, a farmer planting IEDs, or, accidentally, an innocent civilian, as the drones are liable to targeting errors. The drones often save American lives and tax dollars at the expense of the lives of innocent civilians: just last month, an air strike mistake led to 23 civilian deaths in Afghanistan.

However, instead of addressing the targeting failures or keeping the drones in the combat zone, the United States sometimes dismisses problems by defining its enemies as “unlawful combatants” and keeping the drone operations secret. If Washington continues to excuse itself from the rule of law in this manner, the use of armed unmanned vehicles may create more problems than it solves.

Last week, a 29-page report to the United Nations Human Rights Council called on the United States to exercise greater restraint in its use of drones outside of war zones because the use of drones undermined global constraints on the use of military force.  The report stressed that the drone technology is changing the rules of conflict and undermining the foundations of humanitarian behavior in war. Here are just some grounds on which the US use of drones could be challenged. (more…)

Just a few years ago, conventional wisdom held that Google would be the vanguard of Internet freedom in China, transforming the way information flows throughout the historically closed society. But while the rapid expansion of the Internet in China has indeed served as a vital medium for political activism, Beijing has essentially kept pace with its extensive surveillance network to silence “cyber dissidents” and with its use of the Web as a pro-government propaganda machine to steer public opinion. At first glance, it appears that China’s censorship practices warrant a strong U.S. policy and a thorough condemnation from the Obama administration. But as Emily Parker, the Arthur Ross Fellow at the Asia Society, explains, U.S. technological innovation – not U.S. policy – is likely the most capable, effective, and politically sensible tool for chipping away at China’s Great Firewall.

Since Google’s departure, the Chinese government has taken action to tighten its grip on the Internet. Earlier this month, China quietly acknowledged the creation of a new “Internet news coordination bureau,” officially responsible for “guidance, coordination and other work related to the construction and management of Web culture.” And just this week, China’s legislature proposed an amendment to the Law on Guarding State Secrets that would require telecommunications companies to “detect, report and delete” leaks of “state secrets,” broadly defined by the government as “information concerning national security and interests that, if released, would harm the country’s security and interests.” These measures are just the latest pieces fastened to a massive regulatory system, much to the chagrin of the international human rights community and many of China’s 400 million Internet users. (more…)

President Sarkozy’s proposed ban on wearing full veils in public sends a clear message to Muslims living in France: your religion is not welcome here. France has already banned the display of religious objects in schools, a law that was primarily enacted to keep headscarves off of pupils, but one that nevertheless was at least nominally fair in its breadth. Sarkozy’s new proposal, which is popular with his party members and the French public alike, is targeted just at Muslim woman, making it – in a word-  discriminatory. Indeed, as France’s top legal advisory body, the Council of State, has noted, the law may be unconstitutional and breach the European Convention on Human Rights, making the chances of the legislation actually passing unclear. Regardless, the damage it done. Sarkozy’s enthusiastic support for the proposal will only serve to distance French Muslims from French society, further alienating a demographic already on the edges.

As a region, Europe has long struggled to relate to and assimilate its growing Muslim population. (more…)

It is a good thing that that Liz Cheney, the daughter of former Vice President Dick Cheney, never tried to enlist in the U.S. military. Judging by her recent actions it appears she would never be able to say the oath of enlistment with a straight face. I mean the part where one swears to protect and defend the U.S. Constitution, which includes little things like subsequent amendments, such as those in the Bill of Rights.

What I refer to is when she and Bill Kristol, via their “Keep America Safe“ campaign, accused nine lawyers in the Justice Department, who had represented Guantanamo detainees of being the “al-Qaida Seven,” of working in the “Department of Jihad,” Perhaps Cheney and Kristol are simply exercising their First Amendment right to say anything that gets them on a talk show. After all, the right to cynically accuse someone of being a terrorist is protected under the Constitution. Unfortunately, for the rest of us, in so doing they trample underfoot other Constitutional rights that benefit all of us.

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Ordinary Americans are, by and large, pragmatists about legal matters.  They tend to favor legal outcomes that deftly balance competing considerations.  Outcomes that achieve this balance do not do a disservice to broad swaths of people but instead aim to enhance or at the minimum preserve meaningful social policies.  Pragmatism about law, in other words, is really a product of thinking clearly about what the law is for:  the law serves the American people, not the other way around.

Unfortunately, the currently constituted Supreme Court, led by that fearless foe of pragmatism, John G. Roberts, does not care that most Americans loathe the notion that judges ought to carry out their duties without the interests of the citizenry in mind.  Constitutional law, as Roberts himself is keen to emphasize, has nothing to do with sound public policy and should not be tempered by any moral or social concerns, however relevant they may seem to the electorate.  Constitutional law is a free-floating, self-sustaining set of rules that answers to no one, not even the American public.

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There was a moment in 2005 when American democracy promotion efforts and national security interests seemed perfectly aligned. Syria announced its withdrawal from Lebanon; Egypt allowed contested elections for the first time in its history; elections were held in Palestine; and Iraq held parliamentary elections. A more secure, more democratic Middle East appeared to be only a matter of time. Then Hizbullah filled the void in Lebanon, leading to war with Israel. Egypt’s elections turned out to be a sham, and the government subsequently cracked down on the opposition. Hamas swept the elections in Palestine the following year, and Iraq was quickly mired in the deadliest year of its occupation. This swift reversal revealed that our democracy promotion efforts and our national security are linked in very complex, and sometimes contradictory, ways. Promoting democracy while protecting national security is always desirable, and in the long term those interests do indeed align. In the short term, however, we often have to make the difficult decision to prioritize one before the other. If we strike the right balance, we will be able to keep our country safe from immediate threats while laying the foundation for stable democracies in the future.

Today, the Middle East is, if anything, less stable than it was in 2005. The government in Iraq clings to the best news it can get—that the violence isn’t as bad as it used to be. In Afghanistan, NATO troops struggle to regain territory they controlled a few years ago and a corrupt government rules the country. The dream of a stable, democratic Middle East seems to be gone, replaced only with a desperate hope that we might be able to withdraw without triggering civil war. Democracy, if it is achievable in either country, will be a long, hard slog. (more…)

This is my last post for 2009 I thought I would write about Afghanistan but on second thought I will, no doubt, be doing that quite a lot during 2010. Thanks to the Obama Administration’s surge strategy Afghanistan will, from a blogging viewpoint, be the gift that keeps on giving.

So, as we contemplate whether 2010 will be better or worse let’s take a moment to consider 2009. In the spirit of Dave Barry’s classic annual year in review column let’s acknowledge, albeit with some poetic license commentary by moi, a few of the significant events that made, however briefly, the headlines.

Although it started on Dec. 28 2008 the month of January saw massive Israeli air strikes and a ground force invasion of the Gaza Strip. Heavy fighting took place in Gaza City between the Israeli forces and Hamas. At least 1300 Palestinians were killed. On Jan. 17 Israeli Prime Minister Ehud Olmert announced a unilateral ceasefire in the Gaza Strip, declaring that Israel has achieved the goals it set when launching the military operation. On Jan. 21 Israel completes its troop withdrawal from the Gaza Strip.

Also that month President Barack Obama signed executive orders closing the US detention camp at Guantánamo Bay, Cuba, within a year; closing the CIA’s secret prisons; requiring a review of military trials for terror suspects; and requiring all interrogations to follow the non-coercive methods specified in the Army Field Manual.

Of course, nobody knew back then that the camp would end up in Illinois. One can only hope that the inmates are not too acclimated to the Caribbean climate to adjust to a midwest winter.

On Jan 27 Hama declared that it previously was just kidding and broke the ceasefire by attacking an Israeli frontier patrol. Israel immediately responded that it lacks a sense of humor and renewed its air strikes on the Gaza Strip border with Egypt.

On Feb. 3 Iran launched its first domestically built satellite into orbit. Iran stated that the satellite is meant for research and telecommunications purposes, but Western states express concern that the technology could be used in the development of ballistic missiles. The U.S. intelligence community, estimating that Iran will show the same swift progress with its missiles that it did with its nuclear program, predicted the next flight will be in 2040.

On Feb. 6, renewing their classic rivalry, a British and a French nuclear submarine collided in the middle of the Atlantic Ocean. Political leaders from both countries sighed in relief that it was merely submarines and not their respective football fans that collided. (more…)

The Society for Professional Journalists has for quite some time wanted Congress to pass a law that would give reporters a right to keep their sources confidential.  Such a law, commonly referred to as a “shield” law, has obvious advantages from the perspective of the dedicated professionals that collect and disseminate news for the rest of us.

The current shield law making the rounds in Congress is called the Free Flow of Information Act (FFIA).  According to FFIA advocates, the bill is essential because it will enable journalists to collect information of essential importance to the public without laboring under the fear that they will one day have to disclose their sources.  The thought is simple and appealing:  When journalists are able to protect the confidentiality of their sources, the public benefits from the increased access to accurate information that journalists would otherwise be unable to obtain.  In this way, shield laws like FFIA are consistent with the free-speech values that undergird our Constitution.

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Take a moment, dear friends, to consider Judge Milan Smith’s sentiments about the practice of detaining Americans as “material witnesses” to terrorist activities without formally charging them with a crime:

“We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Those words were taken from in al-Kidd v. Ashcroft, a decision by a Ninth Circuit panel holding that John Ashcroft may be sued for his participation in detaining suspected terrorists or terrorist affiliates under the federal material witness statute. In particular, the court held that:

1. (absolute immunity) Ashcroft is not entitled to absolute immunity from suit as representative of the United States government because in allegedly detaining al-Kidd, Ashcroft was engaging in investigative conduct, not purely “prosecutorial” conduct of the type for which officials receive absolute immunity from third-party liability.

2. (rights violations) Ashcroft may be sued for allegedly violating al-Kidd’s Fourth Amendment rights against unlawful detention and statutory rights afforded al-Kidd under the federal material witness statute because it is possible that Ashcroft did play a critical role in al-Kidd’s detention.

However, Ashcroft cannot be sued on the theory that he played a role in determining the allegedly harsh conditions of al-Kidd’s confinement under the high-bar for such allegations set out in the Supreme Court’s Iqbal decision (which I have criticized at some length here).

3. (qualified immunity) Even though Ashcroft is entitled to qualified immunity as a representative to the United States government, al-Kidd may bring an action against him because at the time Ashcroft allegedly decided to use the material witness statute to detain al-Kidd, it was legally certain that doing so would be unlawful. (more…)

Some time ago I wrote a story about Javaid Iqbal, a cable installer the U.S. government allegedly tortured in detention center in Brooklyn. My argument was simple: Mr. Iqbal should be able to present, in court, his case that John Ashcroft and Robert Mueller played key roles in the decision making processes that led to the violation of his constitutional rights. At that point, it looked very much like Mr. Iqbal would be denied his day in court. My fear was that the Supreme Court would throw out his case because Mr. Iqbal would be unable to submit before his case got under way substantial evidence that Ashcroft and Mueller called the shots from on high, ultimately causing the torture he endured.

Unfortunately, I was right. Not only was Mr. Iqbal denied his right to press his claims against the U.S. government and key government officials, the Supreme Court endorsed a problematic approach to evaluating federal lawsuits. The Court rehearsed the old saw, from a case called Twombly, that a case should be dismissed unless the plaintiff’s complaint includes allegations with “factual content” that allows the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” So far, so good. But then the Court did something truly irritating: it viewed Iqbal’s claims with extreme suspicion, concluding that because the September 11th attacks were perpetrated by Arab Muslims, Iqbal’s claim that his constitutional rights had been violated based on discriminatory factors was not articulated with sufficient specificity.

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