SCOTUSblog » Academic Round-up

Monday, July 30, 2012

The Personal Side of Drone Attacks

Elisabeth Bumiller, who covers the Pentagon for the New York Times, offered a different perspective on unmanned aerial vehicle (UAV) attacks in today's paper. Although the killing that these planes conduct is remote in every sense of the word, the impact on the operators is a lot like hand-to-hand combat.

Bumiller describes the job of an operator in Syracuse, New York, whose "day job" consists of following targets in Afghanistan using UAV's. He will monitor the lives of these people for days or even weeks, waiting for an opportunity to kill them when their families are away. As a result, he gets to know the targets far more intimately than any conventional pilot dropping bombs, and maybe more than anyone other than a spy in deep cover. He follows their routines, watches them care for their children, and then blows them up if he can.

Legally and militarily, this part of the story changes nothing, but it does have serious moral and psychological consequences. The issue is not, in this regard, the morality of the killing itself, but of the system that forces the killers to form such attachments to the targets. The pilot in the Bumiller story said that he had no qualms about what he did, but I wonder what the long-term effect is or will be.

Tuesday, July 24, 2012

The Gun Control "Debate"

Here's what the "debate" over guns boils down to, summarized quite nicely in two paragraphs from the New York Times in its initial coverage of recent shooting in Aurora, Colorado:


Mayor Michael R. Bloomberg of New York, who has waged a national campaign for stricter gun laws, offered a political challenge. “Maybe it’s time that the two people who want to be president of the United States stand up and tell us what they are going to do about it,” Mr. Bloomberg said during his weekly radio program, “because this is obviously a problem across the country.”Luke O’Dell of the Rocky Mountain Gun Owners, a Colorado group on the other side of the debate over gun control, took a nearly opposite view. “Potentially, if there had been a law-abiding citizen who had been able to carry in the theater, it’s possible the death toll would have been less.
The Rocky Mountain Gun Club's website goes even further. It says, "the blatant attempt by New York Mayor Michael Bloomberg to use the blood of these innocents to advance his radical political agenda is disgusting. Mayor Bloomberg’s campaign succeeded in disarming not just these movie-goers, but has created millions of gun-free criminal-safezones across the county.”
The "no-compromise gun rights" people like O'Dell believe that more shooting will save lives. He figures that some Coolhand Luke (probably like O'Dell, himself, in his fantasy) would have stood up and calmly put one bullet into the brain of the fully-armored shooter in the movie theater, and then we all would have been safer.

That "radical", Bloomberg, on the other hand (don't you wonder whether O'Dell has any idea who Bloomberg is?), thinks that crossfire is dangerous. He thinks that maybe some cowboy firing back at the original shooter might have done harm.

This is not a debate. It's a bunch of  maniacs shouting while rational people talk.

Monday, July 16, 2012

Law, Power and the CIA

Henry Crumpton is a paradox: he's a famous spy. When he retired from the Clandestine Service in 1995, the Washington Post identified him as the central subject in at least three major studies of the war on terrorism, so his role was at very least an open secret in Washington DC for some time. After all, if Bob Woodward and the entire staff of the 9/11 Commission knew his name and his game, then there had to be others, too.

By all accounts, including his own in the recently-published The Art of Intelligence, Crumpton brought an innovative and aggressive approach to fighting terrorist groups, especially al-Qaeda. As the head of the effort to find and kill Osama bin Laden in 2002, he combined elite paramilitary troops with CIA operatives to revolutionize the way the United States thought about fighting wars against "non-state actors."

The most important point of his book, in my view, is that intelligence plays an absolutely essential role in foreign policy and security decision-making. Crumpton makes it clear that the most important kind of intelligence comes from human sources -- spies. These people can be contact with foreign governments  or diplomats, but the best are "unilateral sources," people recruited by the CIA to provide information. Electronic eavesdropping and overhead surveillance can supplement this HUMINT, as it's called, but only people can select and obtain the kind of up-to-date and significant stuff that leads to good decisions.

Of course, this kind of thing is illegal. The CIA is violating international law by recruiting the sources, and the sources are breaking the laws of their own countries by spying for someone else. Espionage also can include pretty nefarious activity: extortion, bribery, theft, murder. Crumpton wants us to see these facts and confront them. He wants us to accept that fighting bad guys sometimes requires action that would otherwise make us queasy. For the most part, he has me convinced.

But Crumpton misses the other side of that coin. His primary objective is justice. Evil-doers need to be "zeroed out," and he makes no bones about the fact that he believes Jesus wants him to kill them all. I'm not so sure the Gospels support his religious view, and I am certain that the law does not accept his methods. When Crumpton expresses his anger over the fact that the Clinton Administration would not simply shoot a missile at bin Laden because the CIA was almost certain where he was and and was OK withe number of bystanders also likely to be killed, he misses an important part of the government's job: to balance justice and law.

Sometimes the rule of law and justice are incompatible. Revenge may be just but illegal, and spying may be the same way. Crumpton knows, and even says on occasion, that spies should never make policy but only provide information, but he then goes on to describe times when he, as a spy, made policy or complained about the fact that others did not reach conclusions the way a spy would.

Crumpton did his job. I'm thankful his job was not to make more decisions than he did.

Wednesday, July 11, 2012

"Rule of Law" v. "Rule of the Powerful"

Aristotle wrote that "it is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws." Hence the phrase "rule of law."


The problem arises when we seek to define the law. Dictators will use the phrase to claim legitimacy. They say "I make the laws, and therefore to abide by the rule of law everyone must do as I say." But such a claim undermines the very purpose of the concept. Aristotle's point -- reiterated and explained by John Locke and Jean Jacques Rousseau among myriad others -- is that LAW exists above and beyond any particular legislators. Majority rule may or may not automatically establish legitimacy, but Congress could no more claim to be the be-all of the LAW than the president could. Generally, the LAW limits power because it requires adherence to a set of principles that dictates what laws are legitimate.


In Egypt these days we have a dispute over this idea. The military junta currently in control complains that newly-elected President Mohamed Morsi has defied the rule of law by calling for the restoration of Parliament. The junta says that they dissolved the Parliament, and they are the law and therefore they rule. The Supreme Constitutional Court agrees with the junta.


Morsi, though he now says he will abide by the ruling of the Court, is correct and the Court and the junta are wrong. In fact, Morsi's actions today only reinforce the idea that he grasps the concept better than the military because he is accepting limits to his own power when he might have recourse to do otherwise.


On this will hinge the future of a democratic Middle East.