On April 20, 2010, the BP oil rig explosion set off the dumping of millions of gallons of oil into the Gulf of Mexico.  Images of oil soaked birds, tar balls washing up on beaches, and out-of-work fishermen have been a near constant presence on the nightly news ever since.  The spill—the worst environmental disaster in the country’s history—has caused some to condemn offshore drilling and call for a move toward alternate sources of energy.  One of those alternate sources being championed by some experts is nuclear power, an energy source the experts claim is underutilized.  Leaders also champion nuclear energy as a way to lessen our dependence on oil supplied by foreign countries whose oil wealth allows them to “ignore U.S. policies and to pursue interests inimical to our national security.” While nuclear energy has a relatively good safety record (with the exception of one complete meltdown and a few close calls), a new Finnish film documenting that country’s effort to safely store spent nuclear fuel raises a number of difficult questions dealing with the security of such fuel.  As new nuclear waste is created daily, it is long overdue for the United States to seriously determine how to safely store this dangerous substance.

Nuclear power is created by producing intense heat through nuclear fission.  This intense heat is captured and used to make steam which drives a turbine generator, creating power.  Most nuclear power plants use uranium rods bundled together to create nuclear fission.  Though nuclear energy is extremely clean when compared to burning fossil fuels like oil, nuclear power generation does produce waste.  This waste consists of highly radioactive spent fuel assemblies.  Exposure to such a high level of radioactivity could result in death and turn the surrounding land uninhabitable for decades.  Therefore, it is critical that spent nuclear fuel be completely and securely stored in order to prevent an accidental leak or theft.

The challenge of safely storing the material is complicated by the length it must be stored.  Uranium decays very slowly, maintaining its dangerousness for approximately 100,000 years.  It is hard to fathom this period of time.  The human species as we know it today is believed to have existed for approximately 100,000 years.  The oldest known cave paintings are 30,000 years old.  The pyramids are around 4,500 years old.  The amount of changes that will occur in 100,000 years raises a host of issues.  Once we store the nuclear waste, how can we guarantee continuous surveillance and security to protect the material for 100 centuries?  (Think of all the plundering that occurred once gold was discovered in the pyramids).  How will we be able to communicate to future generations the complicated issues of nuclear waste and radiation given our history of preserving ancient language?  Should we even try to convey the seriousness of the material given the possibility that our message will not be understood properly, thereby only piquing humans’ curiosity of what lies behind those reinforced doors?

A new documentary from Finland poses these questions.  “Into Eternity” is about Onkalo—the world’s first permanent nuclear waste repository.  Onkalo is located in Olkiluoto, approximate 190 miles northwest of Helsinki.  Work began on the concept in the 1970s and its completion is expected in the 2100s, after all the current workers will have deceased.

While the issues presented by a place like Onkalo are vexing, at least Finland has a plan and is progressing toward completion.  The United States currently has no plan beyond studying the issue.  For many years this country’s Onkalo was going to be Yucca Mountain in southwest Nevada.  The Department of Energy (DOE) has had Yucca Mountain on its radar since 1978.  In 2002, after a host of scientific studies and legal challenges, President Bush signed a joint resolution allowing the Energy Department to take the next step in establishing Yucca Mountain as the nation’s nuclear waste depository.  But the 2006 congressional elections swept the Democrats into power, led by Yucca Mountain opponent Senator Harry Reid.  Following Senator Reid’s assumption of power, Congress gradually decreased the funding for the site.  President Obama—another opponent of Yucca Mountain—announced he was abandoning the project and directed Energy Secretary Steven Chu to formally file a motion to withdraw the project’s pending license application while establishing a Blue Ribbon Commission on America’s Nuclear Future which is tasked with a comprehensive review and consideration of alternatives to Yucca Mountain.

But the adjudicatory bodies are not letting the Obama administration abandon Yucca Mountain just as a “matter of policy.”  On June 29th, the Atomic Safety and Licensing Board rejected DOE’s motion to stop the project, ruling that the Nuclear Waste Policy Act of 1982 does not give the Energy secretary the discretion to substitute his policy for the one established by Congress in the Act.  The Board held that according to the 1982 Act, once Yucca Mountain was chosen by Congress, the project would be removed from the political process and the Nuclear Regulatory Commission (NRC) would evaluate the proposal solely on its technical merits.  The day after the board’s ruling, the NRC took the unusual move of ordering an appeal to itself, not waiting for an appeal from the parties.  This is in addition to parallel litigation ongoing in the U.S. Court of Appeals for the D.C. Circuit.  In the background, the federal government is assuming ever increasing money damages for breaching contracts with the nuclear utilities for disposal of nuclear waste.  The damage awards now total over $1 billion (The Blog of the Legal Times provides a good summary of the current status of the litigation).

Whatever the merits of abandoning the Yucca Mountain project, we are falling further and further behind in addressing the question of where to store nuclear waste and have not even begun to contemplate the questions facing the engineers, politicians, and theorists in Finland.  If we embrace nuclear energy as an alternative to oil—a way to both keep money from countries that don’t completely share our interests and decrease the possibility of a disaster on par with the BP spill—our production of nuclear waste will increase, thereby raising the importance of developing a comprehensive waste management strategy.  The most sobering thought of all: Finland has four nuclear reactors.  The U.S. has 104.

Photo courtesy of Christian Science Monitor.

Pakistani officials claim to be able to deliver the network of Haqqani, a group affiliated with Al Qaeda, into a power-sharing arrangement.  According to the report, negotiations have been underway for some time, with Pakistan’s Army Chief, Gen. Ashfaq Parvez Kayani, and the nation’s spy chief, Lt. Gen. Ahmad Shuja Pasha, conducting shuttle diplomacy between Islamabad and Kabul.  But the lack of details given to Washington raises concern in some U.S. circles that the negotiations will not only push Karzai further away, but conclude with a separate peace between Afghanistan, Pakistan and the Taliban, leaving American interests to the side and Al Qaeda a base from which to operate.

Some, including President Obama and CIA Director Leon Panetta, are more skeptical that a peace can be reached in the near term.  While Pakistani intelligence and military officials claim the Haqqanis are willing to break with Al Qaeda, many believe that the relationship is too close, and that the negotiations are simply a way of fending off impending military action in both Pakistan and Afghanistan.  While he acknowledged that progress in Afghanistan has been coming more slowly than anticipated, Panetta opined on television that the U.S. has “seen no evidence that [the Taliban] are truly interested in reconciliation.”  Indeed, because of that very lack of progress, many American officials believe the Taliban have no motivation to negotiate seriously, and that they won’t until they fear a military defeat.  President Obama also expressed skepticism, and stressed the varied makeup of the organization, warning that it was “too early to tell” whether the efforts being made to broker a peace accord were genuine.  Administration officials worry that the Haqqani network will be unwilling or unable to break from its more radical elements.

Meanwhile, in an interview that emphasized the potentially varied markup of the coalition forces, the head of the British army, Gen. Sir David Richards, said on BBC Radio this past weekend that talks with the Taliban should start “pretty soon.”  Whether Richards’ view represents a substantive disagreement with his American counterparts’ is unclear.  The beginning of operations in Kandahar should bring some clarity, if not to the war, at least to the various parties’ understanding of how to move forward diplomatically.

Image courtesy of Reuters.

The case was brought over ten years ago by several humanitarian groups concerned that their activities in relation to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) would lead to prosecution under the material-support statute.  Both the PKK and the LTTE have been designated as foreign terrorist organizations by the State Department.

Ralph Fertig, a professor at the University of Southern California, argued that the humanitarian groups did not intend to further any illegal activities but instead hoped to “train members of the PKK to use humanitarian and international law to resolve disputes; to engage in political advocacy on behalf of Turkish Kurds; and to teach the PKK to petition groups such as the UN for relief.”

Writing for the majority, Chief Justice Roberts rejected both of the plaintiffs’ main claims.  First, the Court stated that the statute provides fair notice in relation to the plaintiffs’ proposed conduct and therefore is not unconstitutionally vague.  Second, the Court stated that the statute does not violate the plaintiffs’ First Amendment right to free speech.

In addressing the second claim, the majority noted that Congress rejected the plaintiffs’ argument that their support would only advance the legitimate activities of the PKK and LTTE when it passed the material-support statute and that the record confirms that Congress was justified in rejecting the argument.  The Court noted that although it does not defer to the government’s reading of the First Amendment, it is mindful that government agencies charged with combating terrorism have strongly supported Congress’s finding that contributions to terrorist groups further the groups’ illegal activities, even if intended to support legal activities.

The Court clarified that the question is “not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct.  It is instead whether the Government may prohibit what plaintiffs want to do—provide material support to the PKK and the LTTE in the form of speech.”  Chief Justice Roberts emphasized that the “statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization,” and does not cover independent advocacy that might be viewed as promoting the group’s legitimacy.

Organizations such as the Carter Center and the American Civil Liberties Union were disappointed by the Court’s ruling.  Former president Jimmy Carter stated that the statute inhibits the work of human rights and conflict resolution groups as well as peacemaking organizations that must interact directly with terrorist groups.

Chief Justice Roberts was joined in his opinion by Justice Kennedy, Justice Thomas, Justice Scalia, Justice Alito, and Justice Stevens.  Justice Breyer wrote a dissent, in which Justice Sotomayor and Justice Ginsburg joined.

The dissent agreed with the majority that the statute is not unconstitutionally vague but argued that the government failed to show that an interpretation of the statute that would prohibit the plaintiffs’ activities serves the government’s compelling interest in combating terrorism.

Congress is taking the first step to increase oversight of the much-debated missile defense programs via new spending regulations in the proposed defense appropriations bill.  The Senate Armed Forces Committee inserted language requiring the Missile Defense Agency (MDA) to report baselines for individual projects.

The proposed language would require the MDA to report back to Congress on costs of specific programs.  Agency spokesman Richard Lehner stated that the MDA has reported baselines to Congress since 2005, but those reports lumped spending under one category, the Ballistic Missile Defense System, instead of breaking it down into smaller programs.  The new proposal would allow Congress to know the costs of particular missile systems as well as their value to the military.

Descendent of the Reagan-era Strategic Defense Initiative and the Ballistic Missile Defense Organization, the Missile Defense Agency is responsible for the research, development, and testing of the nation’s missile defense systems.  The MDA manages the Ground-based Midcourse Defense system aimed at locating missiles in Alaska and California as well as development of the European missile shield, which includes plans for layers of defense: land- and sea-based missile interceptors along with other methods still in development.

Another measure of the bill protects the missile defense system in California and Alaska.  In 2009, Secretary Gates announced cuts to a massive interceptor program by Boeing, and another program with Poland and the Czech Republic had already been cut the year prior.  This measure may help assuage some Republicans’ concern over those prior cuts.  It would also require an independent entity to review the system and report back to Congress within six months.

Although the House version of the bill contains language repealing Don’t Ask, Don’t Tell, President Obama, on the advice of Secretary Gates, has threatened to veto it for not cutting the excess programs.

Historically, the MDA has had an annual budget of over $10 billion.  The agency requested $8.4 billion for next year but is likely to receive more.  The House version of the bill authorized $10.3 billion, and the Senate Armed Forces Committee has called for $10.2 billion.

The House version of the bill, which passed on May 28^th by a vote of 229 to 186 and totals $726 billion, includes a provision for $485 million for a second engine for the F-35 Joint Strike Fighter, a program already delayed and over budget that the Pentagon estimates could eventually cost $2.9 billion.  Additionally, the bill designated funds for  C-17 transport planes that the Pentagon has deemed unnecessary.  Some suggest the motivation for such items is either job creation or, more cynically, campaign donations to legislators from the companies set to receive the contracts. The version released by the Senate Armed Forces Committee lacks the provision for the alternate F-35 engine.

Senate Armed Services Strategic Forces Subcommittee head Ben Nelson stated that the funding regulation measure will add transparency and accountability to the program, benefiting both the program and the taxpayers.  The agency was originally a research and development agency, a status that exempted it from the normal rules applying to defense weapons programs.

While campaigning for the 2008 race, Obama criticized President Bush’s missile defense policy as being too willing to pursue unproven technologies.  He instead promised to use only those that are “proven and cost-effective.” Under a policy shift announced in September 2009, the program has become less focused on the traditional conception of a missile defense system located on the country’s borders and capable of shooting down an incoming missile.  Missile defense is now more directed at defending against Iran’s increasing power in the Middle East.  Iranian short- and medium-range missiles could reach Israel and Europe; some, specifically the Shahab III, could potentially carry nuclear warheads.

This shift in policy is unlikely to satisfy critics on the right who view this as leaving a gap in national defense.  It is similarly unlikely to please missile defense critics on the left, who might point to previous failures of missile defense programs to intercept incoming targets in tests or to a recent study by scientists at M.I.T. and Cornell that concluded that the Standard Missile 3 (SM-3) – on which the updated plans rely – is similarly ineffective.  Neither side, however, can fault the increased accountability that comes with reporting individual baselines.

Image courtesy of Wired.com

Over the last week and a half, at least fourteen Americans were detained on terrorism charges in the United States and Yemen in two separate incidents.  Law enforcement officials arrested Mohamed Alessa and Carlos Almonte on Saturday, June 5 at John F. Kennedy Airport as the two allegedly began a trip to join the Somali terrorist organization al-Shabaab.  United States Department of State spokesman P.J. Crowley also confirmed on Monday, June 7 that Yemeni officials have detained at least twelve Americans who are suspected of being a part of Al-Qaeda.

The United States arraigned Alessa and Almonte in the District Court of New Jersey on June 7.  Alessa and Almonte were charged with violating 18 U.S.C. § 956(a)(1), which makes conspiracy to kill, kidnap, maim, or injure persons or damage property abroad a felony punishable by up to life imprisonment.  The complaint recounts an investigation that turned up suspicious behavior and incriminating comments dating back to December 2007, including alleged statements of intent to join al-Shabaab, viewings of videos by radical American-Yemeni cleric Anwar al-Awlaki, and deposits given to an undercover New York Police Department officer totaling $8100 that the defendants believed would be made accessible outside the country.  If the government’s allegations are true, this complaint may indicate that al-Shabaab has stepped up recruitment efforts of late through internet propaganda, potentially as part of an attempt to expand beyond Somalia.

Details about the arrest of a number Americans in Yemen remain sparse.  Various reports indicated that the Americans were part of a group of at least thirty foreigners arrested for alleged connections to Al-Qaeda in the Arabian Peninsula (AQAP), the regional affiliate of the transnational terrorist organization.  All were enrolled in various Arabic language programs in Sana’a, where would-be Christmas Day bomber Umar Abdulmutallab studied prior to embarking upon his plot to destroy an airliner en route to Detroit.  Crowley would not confirm if the United States knew the identity of those taken into custody and as of June 7, the United States had not been given consular access to all twelve detainees.  However, the next day Crowley clarified that he only knew of terrorism charges pending for three Americans, but that there were twenty United States citizens in detention who were suspected of committing various crimes.  Among the foreigners caught up in the Yemeni counterterrorist sweeps was Sharif Mobley, a former nuclear plant maintenance worker from New Jersey who, like Abdulmutallab, had followed al-Awlaki.  Meanwhile, Barry Bujol, a Texan man, was arraigned by a federal grand jury on June 8 on charges of attempted material support to AQAP.

These arrests, which come after the arrests of seven Americans in North Carolina, a Minnesota resident, and a New Jersey resident in separate terrorism plots, Abdulmutallab’s failed plot to bomb an airliner bound for Detroit, the March 2010 arrest of a New Jersey man in Yemen, and Faizal Shahzad’s attempted car bombing of Times Square all in the last year, have renewed concerns about the threats posed by radicalized United States citizens.  Indeed, President Obama’s National Security Strategy, released in May 2010, highlighted the recruitment of United States citizens by terrorist organizations as a threat to be countered.  Similarly, a January 2010 report by the Senate Foreign Relations Committee warned of expanded recruiting efforts by AQAP and al-Shabaab targeting U.S. citizens.  In particular, the presence of thirty-six American ex-convicts and ten radicalized Americans in Yemen raised particular concerns amongst the Committee.

As noted by Dr. Paul Pillar, former Chief of Analysis at the Central Intelligence Agency’s Counterterrorist Center, U.S. citizens pose a unique risk to homeland security because they are not subjected to the same border control procedures that foreigners are (and could evade specific precautions taken against travelers from states identified by the Department of Homeland Security) and are more familiar with their potential targets.  Additionally, Assistant Attorney General for National Security David Kris noted last year that radicalized Americans who returned to the United States would have an easier time recruiting additional individuals due to the credibility gained by their experiences abroad.

It is unclear what has spurred the recent surge in radicalized Americans, but United States citizens seem to be a focus of current recruitment efforts by al-Qaeda and al-Shabaab.  One possible explanation is the influence of Yemeni-American cleric Anwar al-Awlaki.  Al-Awlaki, who is believed to be the first American for whom the United States government has approved targeted killing, is the common link between Abdulmuttab, Bujol, Fort Hood shooter Nidal Hasan, and a number of other attempted terrorists, and was reportedly the inspiration for Shahzad.  Al-Awlaki recently taped a 45-minute interview with al-Qaeda in the Arabian Peninsula calling for jihad against the United States and labeling U.S. civilians as legitimate targets. He has also praised Al Shabaab.  Both Alessa and Almonte showed al-Awlaki videos to the undercover officer, although it is unknown if there are any further ties between the two and the radical cleric.

The charismatic al-Awlaki is relatively unique amongst radicalized clerics in that most of his video appearances are in English, broadening the potential reach of his message amongst Americans.  Al-Awlaki also hints in his videos—as the Senate report fears—that al-Qaeda is targeting non-Arabic individuals for recruitment in an attempt to circumvent counterterrorist border control measures enacted by the United States.  Al-Shabaab’s success in recruiting Americans—reportedly about twenty U.S. citizens have joined the group—may derive from targeting the considerable Somali-American community within the United States, and presents a potentially fruitful source of recruits for various al-Qaeda affiliates.  Reports of deaths amongst American recruits in battle had hurt the Somali organization’s efforts to recruit from the United States.  For now, both the National Security Strategy and the Senate report on the American terrorist threat advocate enhancing interagency cooperation to more effectively track potentially radicalized Americans as a countermeasure to increased terrorist recruitment efforts.

Image courtesy of the Toronto Star

On June 2, 2010, Japanese Prime Minister Yukio Hatoyama resigned.  Though he poetically (or just strangely) claimed that a Japanese songbird he had seen during a recent trip to Korea had signaled to him that it was time to go, the real driving force behind the move was his failure to strike a deal to move the United States’ Futenma air base off of Okinawa.  His party, the Democratic Party of Japan (DPJ), rose to power after a half-century out of government partially due to campaign promises to make Japan a “more equal” partner in its alliance with the United States.

While the United States and Japan have haggled over the base in Okinawa, Russia and Ukraine have come to an agreement extending Russia’s lease on Sevastopol, a port city in Ukraine, to 2042.  There had been considerable anxiety on the part of Russian strategists that if the lease expired later this decade as planned, Russia would lose the primary base of its Black Sea Fleet and, potentially, some of its ability to project force in the region.

These bases, each in a region of vital importance to the respective countries involved, illustrate two totally different approaches to similar problems.  The Japanese difficulty in negotiating an end to the U.S. presence on Okinawa shows the success of alliance and basing agreements based on the self-interest of the host country.  Given the ongoing crisis regarding North Korea, the Chinese navy’s rapid expansion, and ongoing Chinese encroachments on Japanese territorial waters, it should not be surprising that the Japanese public has responded tepidly to proposals that would lessen the protection that the U.S. military base provides.  The Sevastopol agreement, by contrast, is based much more on implicit threats and partisan political differences.  In other words, the Sevastopol agreement, while definitely a win for hardball Russian foreign policy, does not and cannot create or signify a long-term alliance akin to the U.S.-Japan relationship.

The Black Sea has been a focal point of Russian strategy for centuries, and Sevastopol has been the key to Russia’s Black Sea influence.  Indeed, the city was founded as a base for a naval squadron in the same year (1783) that Prince Potemkin founded the Black Sea Fleet.  The base is thus understandably seen by many Russians, including President Medvedev, as a historic symbol of Russian power and an important factor in guaranteeing the stability of the region.  During the Cold War naval standoffs in the Mediterranean, the participating Soviet ships were part of the Black Sea Fleet.  In the recent Russia-Georgia War, the Russians sortied elements of the Black Sea Fleet to fight Georgian naval units and land Russian troops.  Replacing Sevastopol would be hugely expensive and send a strong symbolic message that the Russian navy is slowly ceding its power in the Black Sea.

U.S. ties to Okinawa do not go back as far, but the geostrategic imperative to keep the base is keenly felt by U.S. planners.  After U.S. forces took the island near the end of World War II, it played in important role in plans for a potential nuclear confrontation with the Soviets.  During the Vietnam War, many heavy bomber sorties were launched from Okinawa.  Today, the island’s proximity to Taiwan and China give it an obvious strategic significance.

The role of internal politics shows clearly the important differences in U.S.-Japan and Russia-Ukraine relations.  In Japan, the DPJ maintains a policy toward the United States that is not at all shared by the center-right opposition, the Liberal Democratic Party.  Under Liberal Democrat rule, the Japanese even sent non-combat soldiers to Iraq.  However, partisan differences were not enough to sway the U.S.-Japan alliance, as evidenced by the downfall of Prime Minister Hatoyama.  Hatoyama himself and the Japanese public at large agreed on the necessity of the U.S. alliance despite campaign rhetoric to the contrary.

The Sevastopol agreement, by contrast, represents a partisan political victory that may not have happened at all had the last Ukrainian elections turned out slightly differently.  President Victor Yanukovych represents the pro-Russia mentality largely associated with the Crimean and eastern sections of the country.  His ascension to power constituted a nearly 180-degree turnaround from the policy of the previous administration, which sought full membership in the NATO alliance and closer association with the West.  During the Russia-Georgia War, the pro-NATO Ukrainian government even threatened to blockade the Black Sea Fleet as a gesture of solidarity with Georgia.

Recurring crises and threats arising out of the transport of Russian natural gas through Ukraine and the potential for separatism in the majority-Russian Crimea mean that Ukraine’s accommodation with Russia is made necessary not out of self-interest but fear.  A closer alignment with Russia lowers the likelihood of a future conflict with that nation.  After Georgia’s recent disastrous defiance of Russia, it is not surprising that Ukrainians feel the need to placate its neighbor.

The diametrically opposed views on alliances held by the major Ukrainian parties suggests the ephemeral nature of any Russia-Ukraine agreement.  What will happen to the Russo-Ukrainian alliance in two years when the pro-West party returns to power?  While the U.S.-Japan alliance ebbs and flows in strength, the fundamental alignment of those two countries’ interests have proved enduring in the face of political change.

Image Courtesy of the BBC

On May 21, 2010, in Al Maqaleh v. Gates, a three-judge panel of the D.C. Circuit unanimously reversed a previous district court ruling and held that there was no jurisdiction to hear the petitions for habeas corpus relief of three detainees being held at Bagram Air Base in Afghanistan.  The three detainees in question are all non-U.S. citizens who claim to have been apprehended outside of Afghanistan.  The court’s twenty-six-page opinion was surprisingly short given the import of the case.  Moreover, a large portion of the opinion was spent simply recounting the relevant line of Supreme Court precedents.  When the court finally did engage in substantive analysis, it applied the three-factor test laid out by the Supreme Court in Boumediene v. Bush for analyzing the reach of the Suspension Clause (i.e., for analyzing whether given detainees have a constitutional right to petition for habeas corpus relief).  Those three factors are: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

Despite the brevity of the opinion, there are several noteworthy aspects of the court’s application of the “Boumediene factors.”  For one, the court shifted the focus of analysis from the second factor, “the nature of the sites where . . . detention took place,” to the third factor, revolving around the “practical obstacles” to hearing the detainees’ petitions.  In Boumediene, Justice Kennedy spent a significant portion of his majority opinion establishing why the United States should be considered to have “de facto sovereignty” over its military base at Guantanamo Bay.  Kennedy thus arguably left the impression that this question, falling within the second prong of the three-part test, was the central issue of the inquiry.  Yet in Al Maqaleh, the D.C. Circuit took great pains to emphasize that the question of de facto sovereignty was not determinative.  The Al Maqaleh court rejected as an “extreme understanding of the law” the government’s position that the right to habeas corpus cannot extend to an area over which the United States does not have at least de facto sovereignty.  The court elaborated, “had the Boumediene Court intended to limit its understanding of the reach of the Suspension Clause to territories over which the United States exercised de facto sovereignty, it would have had no need to outline the factors to be considered either generally or in the detail which it in fact adopted.”

In focusing instead on the “practical obstacles” prong, the court emphasized that the site of detention, Bagram, sits in an active theater of war.  In this regard, the court relied heavily on the Supreme Court’s 1950 decision in Johnson v. Eisentrager.  In Eisentrager, the Supreme Court rejected the habeas petitions of twenty-one German nationals held by the United States at Landsberg Prison in Germany.  The Al Maqaleh court referenced a passage from Eisentrager in which the Eisentrager Court argued that hearing the habeas petitions could “hamper the war effort,” “bring aid and comfort to the enemy,” and “diminish the prestige of our commanders.”  The Al Maqaleh court reasoned that such concerns were even greater in the present case, as active war operations are still very much ongoing in Afghanistan while they had already ceased in Europe at the time of Eisentrager.

Given this shift in emphasis, the degree to which the Al Maqaleh opinion remains true to Justice Kennedy’s Boumediene opinion can be debated.  On the one hand, given that the de facto sovereignty inquiry was so central to Justice Kennedy’s analysis in Boumediene, an opinion in Al Maqaleh that focused far more on whether the United States has de facto sovereignty over Bagram would have been quite reasonable (and would not have been an “extreme understanding” of Boumediene by any means).  Yet on the other hand, if one thinks of the core principle underlying Boumediene as that of pragmatism, then Al Maqaleh was very much consistent with this rationale.  Specifically, the Al Maqaleh court may have justifiably determined that now that the setting of analysis has moved away from Guantanamo (Boumediene was after all a culmination of the Guantanamo line of cases), a different aspect of the analysis has become most relevant to reaching an optimal conclusion.  In fact, one could argue that the Boumediene Court anticipated that such a need for a new emphasis of analysis would arise post-Boumediene, and that is exactly why it made sure to add the third prong concerning “practical obstacles” to the test it explicated.

In addition to its application of the Boumediene three-part test, another interesting aspect of the Al Maqaleh opinion is the court’s discussion of the fear that the government may be able to manipulate the court’s analysis.  In a long paragraph near the end of its opinion, the court addressed the argument that ruling in favor of the government would allow it “to switch the Constitution on or off at will” by simply transferring detainees to Bagram rather than a setting such as Guantanamo (or elsewhere) where habeas petitions would have to be heard.  The court noted that these three detainees were brought to Bagram before Boumediene was handed down, and therefore it was not credible to claim that the detainees were placed in Bagram specifically to deny them of habeas rights.  However, the court left open the possibility that this “manipulation” consideration could be a relevant factor in a future case where concern over potential manipulation would be more legitimate.  Unfortunately, the court’s discussion in this regard just raises the question as to what would qualify as manipulation.  Suppose the exact same facts arose as in Al Maqaleh but post-Boumediene.  That is, suppose that post-Boumediene, the government picks up a suspect in Pakistan and brings him to Bagram, or that, as claimed by one of the Al Maqaleh detainees, the government picks up a suspect in a more distant setting such as Thailand.  It would seem difficult, and highly speculative, to develop the counterfactual as to what the government would have done if there were no right to habeas at Guantanamo (or equivalently, if there were a full right to habeas at Bagram).  In other words, how would a district judge determine whether the government sent the detainees to Bagram because the government was trying to manipulate their rights, or whether the detainees were sent to Bagram simply because that is the logical place to send those particular detainees?

Despite these remaining questions, the Al Maqaleh court’s discussion of considerations of potential manipulation, taken in conjunction with the three-part test developed in Boumediene (and further developed in Al Maqaleh), does reinforce the notion that case-by-case pragmatism ought to be the preferred judicial approach when confronted with difficult questions of national security.  Given the multitude of novel legal issues related to terrorism destined to arise in the near future, it is not difficult to see why a flexible approach to this area of the law would be beneficial.  Thus, more than any specific pieces of legal doctrine that Boumediene and Al Maqaleh develop, the longest lasting impact of these cases may stem from the jurisprudential approach on which they stand.

Image courtesy of the Telegraph

Because the tape WikiLeaks obtained had been encrypted, they needed help to descramble it.  To do so, they solicited assistance on Twitter by representing that the video depicted an aerial intervention in Afghanistan that may have killed over 100 civilians.  Both versions were reportedly posted on the WikiLeaks site at first, but as of today only the edited video appears.

It depicts an Iraqi journalist, Namir Noor-Eldeen, driver Saeed Chmagh (both of whom worked for Reuters), and several others as filmed from a U.S. military Apache helicopter.  During the engagement, the gunners shoot, and ultimately kill, twelve Iraqis.  The soldiers’ comments are audible and are not unlike what one might hear in a room full of teenage video-gamers.

Glenn Greenwald of Salon.com — among many others — has defended the release of the video.  He states that “[s]hining light on what our government and military do is so critical precisely because it forces people to see what is really being done and prevents myth and propaganda from distorting those realities.”  Few could argue with the basic proposition.  However, Bill Roggio and others have opined that the operation was nothing close to “Collateral Murder,” that the video itself was distorted and manipulated, and that — far from exposing the government’s account as myth — it is entirely consistent with the investigation.  One blogger condemns the video’s editing for its “disonest[y]”; another called the release, and The New York Times article describing it, “one of the worst smear jobs against our military based on zero evidence in the last decade.”

The irony of the debate is the following: those who released the WikiLeaks video, those who published it, and those who defend its release without reservation commit one of the same sins of which they accuse the military — losing track of the distinction between enemies and innocents.

In the WikiLeaks case, the leakers’ “enemy” is ostensibly the U.S. government.  Undoubtedly the U.S. government is a lawful “target” for those critical of its actions.  And, as in any combat scenario, the purpose of targeting an enemy is to neutralize the threat that it poses; indeed, yesterday the Pentagon renewed its investigation into the incident.  However, the video is sure to harm some number of “innocents” as well, as the video will no doubt provide an unquantifiable amount of propaganda that can be used by existing terrorist organizations for recruitment purposes.  The collateral damage is foreseeable, as it is no secret that organizations like al-Qaeda further their radicalization efforts with the aid of visual props that can be selectively edited and posted on jihadi Web sites.  Footage like this is inordinately manipulable, as evidenced by the fact that the longer clip was itself altered and packaged into a narrative supporting the “Collateral Murder” argument.

President Obama expressed an analog of this point of view when he said, in the context of Abu Ghraib prisoner-abuse photos, that “the most direct consequence of releasing [the photos] would be to further inflame anti-American opinion, and to put our troops in greater danger.”  Congress agreed by amending the Freedom of Information Act to block the photos’ release.  It is true that leaders in the human rights community disagree on this normative assumption about collateral effects.  For example, Amrit Singh — among the attorneys who argued the ACLU’s now-moot FOIA suit to release the Abu Ghraib photos — has stated terrorists already have plenty of information “at their disposal to conduct violence.”

We may never know the empirical value of these competing propositions, but a line of argument proceeding along the ACLU’s track could just as easily yield a contrary conclusion.  The stomach-turning conclusions that WikiLeaks wants public viewers to draw from the April 5th video were already public knowledge as of March 26th: U.S. troops sometimes kill innocent civilians who actually pose no threat to military operations.

In short, there may be less distance between the tactics of WikiLeaks and its enemy than the WikiLeaks folks might immediately recognize.  Just as the current laws of armed conflict require combatants to look to the jus in bello principles of proportionality, distinction, and military necessity (involving an assessment of the probable collateral damage to non-military targets against the expected military gain, as well as an instruction not to engage in the most severe measures when a less harmful alternative exists), so too should transparency advocates apply those principles in their own “war” against suspected government abuse.  In this case, it seems likely that whoever leaked the video to WikiLeaks, and WikiLeaks itself, had alternatives to the public exposure of a graphic video that, when taken out of context, might be more inflammatory than illuminating and could do more harm than good.  Public exposure of a tape like this does not take place in a vacuum in which the possible responses are all non-violent.

Nevertheless, we must also acknowledge that those alternatives might not have been as accessible as we might at first presume.  Many believe that current U.S. law provides inadequate whistleblower protections for national security employees; anyone who now releases classified information to unauthorized recipients risks major disciplinary action, if not termination of employment, and perhaps even criminal prosecution.  WikiLeaks is able to protect its government-employee sources because it wisely chose to organize itself under Swedish law; the group is thus unreachable by U.S. efforts to track down and penalize the leakers.  Because this arrangement ensures that a whistleblower is better protected against retaliation and the threat of prosecution if she tips WikiLeaks rather than a member of Congress, she would be irrational to disclose troubling (but classified) information to another branch of the government rather than to the media and therefore the public.  In this manner, the United States Code directly incentivizes leakers to take actions without regard to collateral effects.

To alleviate this pathology, Congress should enact the Whistleblower Protection Enhancement Act of 2009, the House version of which has been said to “exten[d] meaningful protections to national security whistleblowers, the eyes and ears inside the government who are looking out for our safety and security.”  Whichever version Congress does pass, the legislative branch should ensure the statute provides some mechanism whereby national security employees can report suspected misconduct to an entity with enough independence to ensure the allegations are genuinely and impartially investigated.  Right now the only such mechanism runs right through al-Qaeda’s well-oiled propaganda machine.

The division over counterterrorism strategy flared up most recently when Administration officials struggled with articulating the government’s position on the Belkacem Bensayah detention case.  Bensayah is an Algerian man arrested in Bosnia as a supporter of terrorism and is currently held in Guantanamo.  The New York Times documented the debate between the State and Defense Departments’ top lawyers, Harold Koh and Jeh Johnson.  While Koh argued that the laws of war did not support the U.S. government’s detention of Bensayah, Johnson argued for a more flexible interpretation of these laws.  In the end, the government chose not to resolve the debate and instead pursued a different tactical approach.

Disagreement about what strategy to adopt in the Bensayah case was not the first indication of division over national security issues within the Obama administration.  In April 2009, Attorney General Holder faced strong opposition from intelligence officials over whether to release the “torture memos” written by the Office of Legal Counsel during the Bush administration.  Eventually, the government released four of the memos, which documented “increased pressure phase” interrogation techniques approved by the Justice Department under President Bush.

The long-term consequences of the Administration’s division over national security tactics are still unknown, but officials so far have been modest in changing the previous approach towards the war.  It appears that disagreement has resulted in a general policy of moderation in counterterrorism tactics, with court briefs taking positions that are less broad than many Bush administration policies.  At the same time, however, the Administration has been able to make united national security policy decisions in significant areas.  For example, State Department Legal Adviser Harold Koh recently argued that drone strikes in Pakistan were justified under the laws of war and were necessary to achieve important U.S. foreign policy goals.

The Obama administration’s division over key national security policy issues is consistent with the trends of previous administrations.  The Bush administration’s conflict about interrogation tactics was well-documented by later books and articles.  For example, Jack Goldsmith has described the vitriolic conflict among the White House, the Attorney General’s office, and the Office of Legal Counsel over the Bush administration’s wiretapping policy in The Terror Presidency.

Image courtesy of UPI

Concerns about the use of Unmanned Aerial Vehicles (UAVs) or drones to conduct targeted killings falls into two related categories: moral and legal questions concerning the legitimacy of drone operations and practical considerations regarding their strategic effectiveness.

Moral and Legal Considerations

Perhaps the most intractable legal question concerning drone strikes is what type of law should apply to them.  Proponents of targeted killings invoke the right of self-defense against armed attack and turn to the laws of war to justify drone attacks.  Humanitarians and others counter that because many drone attacks are occurring in countries with which the U.S. is not at war (e.g. Pakistan and Yemen), peacetime humanitarian law applies.

In fact, it would be imprudent to suggest that one regime would always apply to the exclusion of the other.  In practice, strikes must be evaluated on an individual basis under a regime that reflects the nature of the target being pursued and the theater in which the strike occurs.  Strikes against terrorists and insurgents on the periphery of a war zone will inevitably be held to a different standard than strikes against other actors in other parts of the world.  The search for a single over-arching legal regime to govern the use of drones may be inhibited by the diversity of theaters and uses to which drones have been applied.

Regardless of the legal regime applied, at least four considerations are central to determining the morality and legality of the drone campaign:  proportionality, discrimination, the agent carrying out the strikes, and the process used to make targeting decisions.

Proportionality

The proportionality of drone strikes must be viewed relative to the threat that they are designed to counter.  Ostensibly, the U.S. Government is attacking al-Qaeda operatives intent on unleashing catastrophic terrorist attacks against the United States and Taliban insurgents determined to kill agents of the Afghan, Pakistani, American and other NATO governments.  When considered relative to the available policy alternatives, few analysts dispute the proportionality of drone strikes.

Discrimination/Distinction

Instead, opponents of drone strikes focus their critiques on alleged shortcomings in the capacity of the drone campaign to discriminate between combatants and non-combatants.  The drone campaign is estimated to have killed over 1200 people since 2004.  The morality and legality of the drone strike policy hinges on the veracity of conflicting estimates regarding the civilian casualty rate.

The drone campaign is indisputably effective at killing al-Qaeda and Taliban leaders.  The Long War Journal reports that from January 2008-January 2010, drone strikes killed at least 15 high-value al-Qaeda targets, 1 high-value Taliban leader, and 16 mid-level al-Qaeda and Taliban leaders.

Peter Bergen and Katherine Tiedemann at the New America Foundation have released the most comprehensive analysis of the U.S. policy of UAV drone strikes against al-Qaeda and Taliban operatives in Pakistan to-date.  Bergen and Tiedemann estimate that approximately one out of every three fatalities caused by drone strikes is civilian.  Their estimate, like most other sources, is based on “reliable news media reports.”  In contrast, the Pakistani government has alleged a civilian fatality rate as high as 98% while other sources, like the Long War Journal, suggest figures as low as 10%.  Although it is clear that both combatants and non-combatants are being killed by drone strikes, the discriminatory effectiveness of the drone campaign remains difficult to assess.

Agent

Others have expressed concern regarding who is authorized to execute drone strikes.  Public reporting indicates that both the military services and the CIA are carrying out drone missions.  To the extent that a civilian agency is conducting lethal operations outside of a war zone in a highly public fashion and on an unprecedented scale, this raises important questions about the U.S. Government’s principles and procedures regarding the use of deadly force.

Process

It follows then that process should be another focus of concern.  How are targets selected?    Under what circumstances can strikes be carried out?  Who can be targeted?  This last question has been asked with increased urgency since Director of National Intelligence, Dennis Blair, acknowledged in Congressional Testimony that even U.S. citizens abroad could be targeted for killing under certain circumstances.  For obvious reasons, the processes that drive the drone campaign remain entirely confidential.

Practical Considerations

Beyond, but not separate from, the moral and legal dimensions of the drone campaign, it is important to assess the strategic effectiveness of the drone campaign.  Here also, there is significant disagreement.  The diversity of perspectives in this area is best reflected in the contrast between the enthusiastic views of the U.S. Government, the cautioned analysis of Peter Bergen and Katherine Tiedemann, and the categorical opposition of counterinsurgency experts David Kilcullen and Andrew Exum to the drone campaign in Pakistan.

The U.S. Government is convinced that the drone campaign is strategically productive.  The pace of drone strikes continues to increase.  A total of 58 strikes were launched in Pakistan in 2009 and 18 have been launched this year thru Feb. 24th.  Tactically, the U.S. Government has clearly assessed that drone strikes are effective at disrupting al-Qaeda and Taliban operations.

However, Bergen and Tiedemann dispute this assessment with a number of observations:

• al-Qaeda continues to train Western recruits in Pakistani camps
• Taliban operations in Afghanistan and Pakistan continue
• Drone strikes have lost the element of surprise
• The United States loses valuable intelligence by killing rather than capturing terrorist and insurgent leaders

Bergen and Tiedemann and prominent terrorism scholars including Bruce Hoffman caution that the drone campaign may be a tactical success belying a broader strategic failure.

David Kilcullen and Andrew Exum made precisely this claim in an op-ed some months ago.  They argued that the U.S. preoccupation with killing terrorist leaders both distracts from and undercuts what should be the core American mission in Pakistan — reducing Taliban and al-Qaeda success at intimidating the Pakistani populace into submission.

A Brave New World

Most analysts believe that drone strikes will continue unabated in the near-term.  As Bergen and Tiedemann note, it seems that the drone strike policy is “the least bad” option available to policymakers in a very difficult circumstance.

Finally, it is not too early for the United States to begin thinking about what it should be doing today to deal with the eventuality that other states and even non-state actors will employ drones against U.S. interests.  Should the United States seek to establish norms of use and non-use as it did with nuclear weapons, pursue a policy of counter-proliferation as it did after the advent of the cruise missile, or resign itself to the design of tactical counter-measures to address the inevitability of enemy drones?  These important questions should be considered alongside the more immediate moral, legal, and practical considerations discussed in this article.

Image courtesy of Wired.com