We have been determinedly disguising—especially from ourselves—the challenge posed by our continuing need to detain transnational terrorists. The call to shutter the detention camp at Guantánamo Bay is a case in point. Whether to close Gitmo is the wrong question and has functioned to conceal the right question. The issue is not one of location or where to hold unlawful enemy combatants, but rather the rules under which we detain, interrogate, and prosecute transnational terrorists.
Despite the concerns that critics—including the U.S. government during the Clinton and Bush administrations--have raised about the International Criminal Court (ICC), the long-term interest of the United States involves cooperating with it. Since the Bush administration’s laudable decision to permit the passage of a 2005 Security Council resolution referring the situation in Darfur to the ICC, however, that court’s consistent record of careful investigation and restraint in using its powers should be reassuring to critics.
When terrorists are "homegrown," non-military approaches to counter-terrorism become essential tool. Until recently, the United States has been relatively immune from homegrown Islamist terrorist strikes, but this is unlikely to last. The Kingdom of Saudi Arabia, a pioneer in terrorism prevention and counter-radicalization, claims to have found techniques that work–both inside prisons, and on the Internet. The United Kingdom and the Netherlands are experimenting with terrorism prevention programs in ethnic neighborhoods with high levels of alienation as well as unemployment. Whether such efforts to disengage or prevent the recruitment of Muslims to al Qaeda and related groups is a critical question that requires close examination.
This essay discusses the constitutional aspects of the debate over the power to make war: How this debate has evolved in relation to the developing strategic context and what that means as we enter a period of wars on terrorism. How we might more carefully distinguish among, and more rigorously employ, the various legitimate forms of modal argument in this debate. How the terms of this debate will shift from ad bellum concerns about the initiation of warfare to in bello controversies arising from Congress's regulatory powers, and what a sensible doctrine might look like.
Then-candidate Obama stated during the 2008 campaign that "the experience of Iraq underscores that often perceived threats are not as real [as] they may seem, and our intelligence may be imperfect. But, when our intelligence is good and defensible we should not rule out the use of force." This essay concerns ways of assessing legally whether that intelligence is sufficiently good and defensible. It argues that a reasonable necessity approach to the use of force against WMD threats—and with it an objective standard of assessing WMD capabilities—operating as a narrow alternative to U.N. Security Council authorization, can best balance and allocate competing risks.
This essay sounds a skeptical note in the recent enthusiasm for treaties to regulate the problem of offensive cyber operations. It argues that the fundamental clash of interests among nations concerning the regulation of electronic communications, the deep constraints the United States would have to adopt to receive reciprocal benefits in a cybersecurity treaty, and debilitating verification problems would combine to make it unfeasible to create a cybersecurity treaty that purports to constrain governments.
Targeted killing and drone warfare across wide geographic ranges and sovereign borders have produced much anxiety in the international law and advocacy communities and among scholars, human rights activists, and government and UN officials. It is no longer obvious where the laws of war take hold and where ordinary domestic law—including human rights law—applies instead. This essay argues that the traditional legal condition for applying the laws of war—the “conduct of hostilities”—is and continues to be the correct legal standard.
This essay examines why, ten years after 9/11, the least reformed part of the US intelligence system is Congress, not the CIA or the FBI. Headlines have focused on the extent to which Bush administration officials withheld information from Congress about interrogations, wiretapping, and other controversial intelligence programs. Zegart has found that many of Congress’s oversight troubles lie with Congress and two institutional deficiencies in particular: limited expertise and weak budgetary power over the Intelligence community. Such an intelligence oversight system is well designed to serve the reelection interests of individual legislators and protect congressional committee turf and poorly designed to serve the national interest.
The Future Challenges essay series, a collaborative effort of Hoover’s Koret-Taube Task Force on National Security and Law, is an online volume that explores a variety of emerging national security and law challenges, including the crafting of rules for the detention of unlawful enemy combatants, the proper orientation for the United States toward the International Criminal Court, the deradicalization of terrorists, application of the principle of proportionality to asymmetric warfare, developments in the war-powers doctrine, cyber-warfare, the search for and regulation of weapons of mass destruction, and the reform of Congressional oversight of intelligence. Essays will be posted to the task force website upon completion.