March 31, 2010

Justice Stevens on Targeted Killing

As detailed via quotes in the post below, the Legal Adviser to the U.S. Department of State, Harold Hongju Koh (below left), [last week] outlined a multi-pronged defense of the Obama Administration's use of drones for targeted killings of presumed al Qaeda operatives. (photo credit) Among the statements made during Koh's keynote speech to the American Society of International Law was this:

[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.
Upon hearing these words, my mind jumped at once to my 2005 interview of U.S. Supreme Court Justice John Paul Stevens (above right), for whom I had the privilege of clerking and about whom I am writing a jurisprudential biography. (photo credit) Stevens served as a Navy codebreaker at Pearl Harbor from 1942-1945, and earned a Bronze Star for that service. The relevant passage from my 2006 article entitled John Paul Stevens, Human Rights Judge described Stevens' thoughts about perhaps the most famous targeted killing of World War II:

One event days before Stevens’s twenty-third birthday would stay with him for the rest of his life. The architect of the Pearl Harbor attack was Admiral Isoroku Yamamoto, who had learned English from a missionary and become a Babe Ruth fan while studying at Harvard in the 1920s. On April 14, 1943, Americans discovered that Yamamoto [right] was about to travel to the front. Unbeknownst to the Japanese, Stevens explained in an interview more than sixty years later, “We had broken the code.” On Roosevelt’s orders, U.S. pilots downed Yamamoto’s plane over a Solomon Islands jungle on April 18, Easter Sunday. “I was on duty on the day they brought the plane down,” Stevens said, “The message was, ‘We bagged one eagle and two sparrows,’ indicating success in the mission.” The kill buoyed the spirits of many, who knew that getting Yamamoto would, as Stevens put it, “have a tremendous strategic advantage.”
Stevens' own thoughts were more complex:
But the incident troubled the young officer. “I remember thinking that the planners must have engaged in a lot of deliberation before deciding to go along with the plan,” Stevens said. “I have read a number of books on it since and discovered that was not the case. They were concerned that targeting him would reveal that they had broken the code.” Accounts of the killing indicate that U.S. Admiral Chester A. Nimitz and others—in communications laced with foxhunting terms—debated only the tactical benefits and costs. “But they had no humanitarian concerns at all of the kind that troubled me,” Stevens said. That fact “kind of surprised me,” he continued, particularly given that Yamamoto “had spent time in the United States and had friendships among high-ranking American officers.”
Stevens reaffirmed this sensibility in a just-published New Yorker interview. There author Jeffrey Toobin tracked the Yamamoto account in my 2006 article (without, alas, citation to same). Implicitly linking the Yamamoto incident to his later discussion of Stevens' post-9/11 jurisprudence, Toobin contributed this insight:
The morality of military action became a lifelong preoccupation.
It's also worth noting that Stevens' concerns respecting that targeted killing had a profound effect on his capital punishment jurisprudence. The passage in my 2006 article thus continued:
Appearing before the Chicago Bar Association decades later, Stevens alluded to the event without naming the target. The Justice told his audience that the experience had sown doubts in his mind about another instance in which the state takes the life of a named individual; that is, capital punishment. Recalling that talk, Stevens affirmed that the Yamamoto incident led him to conclude that “[t]he targeting of a particular individual with the intent to kill him was a lot different than killing a soldier in battle and dealing with a statistic. . . . In my mind, there is a difference between statistics and sitting on a jury and deciding whether to kill a single person.”
As pointed out in note 178 of my article, Stevens revealed in a 1996 speech that, notwithstanding these doubts, at the time of his 1975 confirmation hearings, he did not himself know how he would vote on capital punishment. The Justice since has told me that in 1975 no Senator asked him his views, neither publicly nor privately. In 1976, he voted in Gregg and related cases to reinstate the death penalty. But as posted, in 2008, Stevens made public his conclusion that the death penalty, in all its applications, violates the 8th Amendment to the U.S. Constitution.
Stevens' linkage of targeted killing amid armed conflict with the targeting for execution of a convicted murderer provokes further thoughts:
► As my 2006 article observed,
That superior officers expressed no qualms in 1943 about targeting Yamamoto suggests earlier sources for Stevens’s “humanitarian” unease.
My 2010 article John Paul Stevens and Equally Impartial Government (now available in pdf here, and soon to be in print in the UC Davis Law Review) sets forth a story of Stevens's family that might have encouraged careful thought about the power of the state.
► It bears particular mention that although Stevens harbored what he called “humanitarian concerns” years before he would decide to enter law school, his were, fundamentally, the concerns of a lawyer. They signaled a visceral sense that the process of law, no less than law's substance, places valuable constraints on state power.
The quote at the very top of this post stands in conflict with that sense of justice.

[Cross-posted from IntLawGrrls]


March 31, 2010

Senator Dodd's Magnum Opus

I haven't yet made my way through the 1336 pages of Senator Dodd's massive (but, as recent events suggest, necessary) overhaul of financial regulation (full text here), but the basic elements (very helpfully summarized here) look promising. The Bill promises to bring some transparency to the shadow banking system through required disclosures to financial authorities. It increases the government's power to shut down failing financial enterprises (and even requires companies to submit their own "funeral plans" providing a road map of how they should be shut down). It requires some "skin in the game" for securitization (certainly a controversial requirement). It also modifies compensation arrangements to require banks to have the right to clawback executive compensation if it was based on inaccurate financial accounting statements (broader clawback rights might also be justified for such activity as excessive risk-taking, but these might also be effectively required by changes to the Basel capital adequacy guidelines--at least for the entities covered by Basel).

Much of the public focus--and political debate--will be on the proposed Consumer Financial Protection Agency, but the systemic risks addressed elsewhere in the proposal are likely more important in terms of avoiding a future systemic financial collapse. 

I have coauthored a paper with Randall Costa of Citadel Investment Group on the virtues of central counterparty clearing for credit default swaps, a key step in Senator Dodd's financial reform. The paper, Clearing Credit Default Swaps: A Case Study in Global Legal Convergence, has just been published in the Chicago Journal of International Law.


March 11, 2010

Does the Internet Deserve a Nobel Peace Prize?

The BBC reports that the Internet has been nominated for the Nobel Peace Prize. 

Some, such as the Italian version of Wired magazine, have championed the Internet's nomination for helping advance "dialogue, debate and consensus."

It may seem laughable to give a Peace Prize to a communications medium, but there is reason to take the nomination seriously. 

Alfred Nobel, in his will, announced that one prize should be awarded to "the person who shall have done the most or the best work for fraternity between the nations and the abolition or reduction of standing armies and the formation and spreading of peace congresses."

The Nobel Prize Committee has long awarded the Prize to associations, not just natural "persons"--including recently the Intergovernmental Panel on Climate Change and the International Atomic Energy Agency. Selecting the Internet would extend the prize further to an even more abstract entity, but it would still go to a human endeavor.

Has the Internet advanced the cause of peace?  That still remains unclear, but there is reason to be hopeful. The Web makes possible an increasing sense of common membership in the world. The very nature of the "World Wide" Web, with its focus on interconnectedness and its disrespect for political borders or geographical distance, promotes this. The Internet, in this sense, promotes "fraternity between the nations."

The Internet also allows dissidents to escape local controls on speech. I explore this further in a forthcoming California Law Review article, Googling Freedom, which I will post soon. This may be the reason that Nobel Peace Laureate Shirin Ebadi is cited as a supporter of the nomination of the Internet for the Peace Prize.

There is of course the dark side of the Internet. Through this medium, terrorists have plotted their terror and arms merchants have found buyers. Nationalists have promoted jingoism.

Indeed, the Internet might permit individuals to limit themselves to a narrow informational universe, accessing only sites and information that confirm (and perhaps strengthen) our prior views.  This is Cass Sunstein's argument, which I have critiqued in my paper, Whose Republic?, published in the University of Chicago Law Review. Where Sunstein worries about the "Daily Me" made possible by electronic intermediaries that deliver news tailored to a reader's tastes, I observe that, for minorities, the traditional media offer the "Daily Them" -- a vision of society focused on its dominant members.

The BBC story notes that "[i]t is unclear who would accept the prize if the internet were to win."  I would nominate Tim Berners-Lee, the man who gave the world the "World-Wide-Web," a visionary communications protocol that made the Internet popular beyond the relatively narrow confines of technologists. 

By raising the possibility of the Internet as a Nobel Laureate, I should not be misunderstood as endorsing such a choice. There are many worthy candidates, including Chinese dissident Liu Xiaobo, who languishes under arrest. Indeed, it is likely the case that these other candidates are more worthy of the prize--and that choosing them might have a greater likelihood of promoting the cause of peace.