1AC

plan
The United States federal government should limit the war power authority of the
president for self-defense targeted killings to outside an armed conflict.
 drones adv
Adv 1---drones

Conflation of self-defense and the laws of war disrupts effective TK

Geoffrey Corn, South Texas College of Law, Professor of Law and Presidential Research Professor,
J.D., 10/22/11, Self-defense Targeting: Blurring the Line between the Jus ad Bellum and the Jus in Bello,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1947838

At the core of the self-defense targeting theory is the assumption that the jus ad bellum provides sufficient
authority to both justify and regulate the application of combat power.71 This assumption ignores an
axiom of jus belli development: the compartmentalization of the jus ad bellum and the jus in bello .72 As
Colonel G.I.A.D. Draper noted in 1971, “equal application of the Law governing the conduct of armed
conflicts to those illegally resorting to armed forces and those lawfully resorting thereto is accepted as
axiomatic in modern International Law.”73 This compartmentalization is the historic response to the
practice of defining jus in bello obligations by reference to the jus ad bellum legality of conflict.74 As the
jus in bello evolved to focus on the humanitarian protection of victims of war, to include the armed forces
themselves,75 the practice of denying LOAC applicability based on assertions of conflict illegality became
indefensible.76 Instead, the de facto nature of hostilities would dictate jus in bello applicability, and the jus
ad bellum legal basis for hostilities would be irrelevant to this determination.77
This compartmentalization lies at the core of the Geneva Convention lawtriggering equation.78 Adoption
of the term “armed conflict” as the primary triggering consideration for jus in bello applicability was a
deliberate response to the more formalistic jus in bello applicability that predated the 1949 revision of the
Geneva Conventions.79 Prior to these revisions, in bello applicability often turned on the existence of a
state of war in the international legal sense, which in turn led to assertions of inapplicability as the result
of assertions of unlawful aggression.80 Determined to prevent the denial of humanitarian regulation to
situations necessitating such regulation—any de facto armed conflict—the 1949 Conventions sought to
neutralize the impact of ad bellum legality in law applicability analysis.81
This effort rapidly became the norm of international law.82 Armed conflict analysis simply did not include
conflict legality considerations.83 National military manuals, international jurisprudence and expert
commentary all reflect this development.84 This division is today a fundamental LOAC tenet—and is
beyond dispute.85 In fact, for many years the United States has gone even farther, extending application
of LOAC principles beyond situations of armed conflict altogether so as to regulate any military
operation.86 This is just another manifestation of the fact that States, or perhaps more importantly the
armed forces that do their bidding, view the cause or purported justification for such operations as
irrelevant when deciding what rules apply to regulate operational and tactical execution.
This aspect of ad bellum/in bello compartmentalization is not called into question by the self-defense
targeting concept.87 Nothing in the assertion that combat operations directed against transnational non-
State belligerent groups qualifies as armed conflict suggests the inapplicability of LOAC regulatory norms
on the basis of the relative illegitimacy of al Qaeda’s efforts to inflict harm on the United States and other
victim States (although as noted earlier, this was implicit in the original Bush administration approach to
the war on terror).88 Instead, the self-defense targeting concept reflects an odd inversion of the concern
that motivated the armed conflict law trigger. The concept does not assert the illegitimacy of the terrorist
cause to deny LOAC principles to operations directed against them.89 Instead, it relies on the legality of
the U.S. cause to dispense with the need for applying LOAC principles to regulate these operations.90
This might not be explicit, but it is clear that an exclusive focus on ad bellum principles indicates that
these principles subsume in bello conflict regulation norms.91
There are two fundamental flaws with this conflation. First, by contradicting the traditional
compartmentalization between the two branches of the jus belli,92 it creates a dangerous precedent .
Although there is no express resurrection of the just war concept of LOAC applicability, by focusing
exclusively on jus ad bellum legality and principles, the concept suggests the inapplicability of jus in bello
regulation as the result of the legality of the U.S. cause. To be clear, I believe U.S. counterterror
operations are legally justified actions in self-defense. However, this should not be even implicitly relied
on to deny jus in bello applicability to operations directed against terrorist opponents, precisely because it
may be viewed as suggesting the invalidity of the opponent’s cause deprives them of the protections of
that law, or that the operations are somehow exempted from LOAC regulation. Second, even discounting
this detrimental precedential effect, the conflation of ad bellum and in bello principles to regulate the
execution of operations is extremely troubling.93 This is because the meaning of these principles is
distinct within each branch of the jus belli.94
Furthermore, because the scope of authority derived from jus ad bellum principles purportedly invoked to
regulate operational execution is more restrictive than that derived from their jus in bello counterparts,95
this conflation produces a potential windfall for terrorist operatives . Thus, the ad bellum/in bello
conflation is ironically self-contradictory. In one sense, it suggests the inapplicability of jus in bello
protections to the illegitimate terrorist enemy because of the legitimacy of the U.S. cause.96 In another
sense, the more restrictive nature of the jus ad bellum principles it substitutes for the jus in bello variants
to regulate operational execution provides the enemy with increased protection from attack.97 Neither of
these consequences is beneficial, nor necessary. Instead, compliance with the traditional jus ad
bellum/jus in bello compartmentalization methodology averts these consequences and offers a more
rational approach to counterterrorism conflict regulation.98

That makes future terrorist attacks inevitable

Geoffrey Corn, South Texas College of Law, 6/2/13, Corn Comments on the Costs of Shifting to a Pure
Self-Defense Model, www.lawfareblog.com/2013/06/corn-comments-on-the-prospect-of-a-shift-to-a-pure-
self-defense-model/

The President’s speech – like prior statements of other administration officials – certainly suggests that
the inherent right of self-defense is defining the permissible scope of kinetic attacks against terrorists. I
wonder, however, if this is more rhetoric than reality? I think only time will tell whether actual operational
practice confirms that “we are using force within boundaries that will be no different postwar”. More
significantly, if practice does confirm this de facto abandonment of AUMF targeting authority , I believe it
will result in a loss of the type of operational and tactical flexibility that has been, according to the
President, decisive in the degradation of al Qaeda to date. The inherent right of self-defense is
undoubtedly a critical source of authority to disable imminent threats to the nation, but it simply fails to
provide the scope of legal authority to employ military force against the al Qaeda (and associated force)
threat that will provide an analogous decisive effect in the future .
It strikes me (no pun intended) that arguments – or policy choices – in favor of abandoning the armed
conflict model because the inherent right of self-defense will provide sufficient counter-terrorism response
authority may not fully consider the operational impact of such a shift. From an operational perspective,
the scope of authority to employ military force against the al Qaeda belligerent threat pursuant to the
inherent right of self-defense is in no way analogous to the authority to do so within an armed conflict
framework. This seems especially significant in relation to counter-terror operations. According to the
President, the strategic vision for the “next generation” counter-terror military operations is not a
“boundless ‘global war on terror’ – but rather a series of persistent, targeted efforts to dismantle specific
networks of violent extremists that threaten America.”
Relying exclusively on the inherent right of self-defense would, I suggest, potentially undermine
implementing this strategic vision. It seems to me that disruption, and not necessarily destruction, is the
logical operational “effect” commanders routinely seek to achieve to implement this strateg y. Destruction,
when feasible, would obviously contribute to this strategy. It is, however, doubtful that a group like al
Qaeda and its affiliates can be completely destroyed – at least to the point that they are brought into
complete submission – through the use of military power. Instead, military force can effectively be used to
disrupt this opponent, thereby seizing and retaining the initiative and keeping the opponent off balance.
Indeed, President Obama signaled the benefit of using military force to achieve this effect when he noted
that al Qaeda’s “remaining operatives spend more time thinking about their own safety than plotting
against us. They did not direct the attacks in Benghazi or Boston. They have not carried out a successful
attack on our homeland since 9/11.”
A key advantage of the armed conflict framework is that it provides the legal maneuver space to employ
military force in a manner that will effectively produce this disruptive and degrading effect. In contrast,
under a pure self-defense framework, use of military force directed against such networks would
necessarily require a determination of imminent threat of attack against the nation. Unlike the armed
conflict model, this would arguably make conducting operations to “disrupt” terrorist networks more
difficult to justify. I believe this is borne out by the reference to the pre-9/11 self-defense model. While it is
true that military force was periodically employed as an act of self-defense during this era, such use
seems to have been quite limited and only in response to attacks that already occurred, or at best were
imminent in a restrictive interpretation of that term. In short, the range of legally permissible options to use
military power to achieve this disruptive effect is inevitably broader in the context of an existing armed
conflict than in isolated self-defense actions.
It may, of course, be possible to adopt an interpretation of imminence expansive enough to facilitate the
range of operational flexibility needed to achieve this disruptive effect against al Qaeda networks. But this
would just shift the legality debate from the legitimacy of continuing an armed conflict model to the
legitimacy of the imminence interpretation. Even this would not, however, provide analogous authority to
address the al Qaeda belligerent threat. Even if an expanded definition of imminence undergirded a pure
self-defense model, it would inevitably result in hesitancy to employ force to disrupt, as opposed to
disable, terrorist threats, because of concerns of perceived overreach.
It may be that a shift to this use of force framework is not only inevitable, but likely to come sooner than
later. It may also be that such a shift might produce positive second and third order effects, such as
improving the perception of legitimacy and mitigating the perception of a boundless war. It will not be
without cost, and it is not self-evident that the scope of attack authority will be functionally analogous to
that provided by the armed conflict model. Policy may in fact routinely limit the exercise of authority under
this model today, but once the legal box is constricted, operationally flexibility will inevitably be
degraded . It is for this reason that I believe the administration is unlikely to be too quick to abandon
reliance on the AUMF.

High risk of attacks – most qualified ev

Sara Carter 14, senior editor at The Blaze, Intel Chief Has a Warning About Al Qaeda Splinter Groups,
January 30, http://www.theblaze.com/stories/2014/01/30/intel-chief-has-a-warning-about-al-qaeda-
splinter-groups/

Director of National Intelligence James Clapper warned Wednesday that Al Qaeda is still as dangerous
as it was in the past and the its use of splinter groups pose a significant danger to U.S. assets — both at
home and overseas as their operations are difficult to detect and monitor.
Clapper, who spoke to the Senate Intelligence Committee, noted that terrorist organizations “have
expressed interest in developing offensive cyber capabilities.” He told lawmakers that they use
educated recruits who employ “cyberspace for propaganda and influence operations, financial activities
and personnel recruitment.”
He noted that instability the Middle East and North Africa “has accelerated the decentralization of the
movement, which is increasingly influenced by local and regional issues,” but the “diffusion has led to
the emergence of new power centers and an increase in threats by networks of like-minded extremists
with allegiances to multiple groups.”
“The potential of global events to instantaneously spark grievances around the world hinders advance
warning, disruption and attribution of plots,” he warned in the intelligence community’s annual Worldwide
Threat Assessment, where the intelligence community presents its analysis and assessment of threats to
the U.S.
“Terrorist threats emanate from a diverse array of terrorist actors, ranging from formal groups to
homegrown violent extremists (HVEs) and ad hoc, foreign-based actors,” the report states. “The threat
environment continues to transition to a more diverse array of actors, reinforcing the positive
developments of previous years.”
He said large scale Al Qaeda attacks have been significantly degraded but that the splinter groups still
present direct threats to U.S. assets.
The report stated that “U.S.-based extremists will likely continue to pose the most frequent threat to the
U.S. Homeland.”
It noted the “tragic attack in Boston in April 2013″ and said that indicates that insular ‘Home Violent
Extremists’ who act alone or in small groups and mask the extent of their ideological radicalization can
represent challenging and lethal threats.”
As for Al-Qaeda in the Arabian Peninsula (AQAP), which operates from its safe haven in Yemen, “has
attempted several times to attack the US Homeland. We judge that the group poses a significant threat
and remains intent on targeting the United States and US interests overseas.”
Although, core Al Qaeda had major setbacks “it probably hopes for a resurgence following the drawdown
of US troops in Afghanistan in 2014.”
The report noted that the U.S. faces an “enduring” and persistent threat to U.S. interests overseas from
extremist groups looking to attack “US embassies, military facilities and individuals will be at particular risk
in parts of South Asia, the Middle East and Africa.”

Attacks will be nuclear

Bhattarai 2-6 (Keshav, writes for Eurasia Review. Earlier he worked as a columnist in an English
language weekly from Nepal, 2/6/2014, "Living Under the Threat of Nuclear Terrorism",
www.eurasiareview.com/06022014-living-threat-nuclear-terrorism/)

In a speech delivered at International Conference on Nuclear Security, Yukiya Amano – the Director
General of International Atomic Energy Agency (IAEA), in Vienna in last July remarked that there are
“over a hundred incidents of thefts and other unauthorised activities involving nuclear and radioactive
material are reported to the IAEA every year.”

In his alarming speech, he warned the global community that terrorists and criminals were trying to
exploit the vulnerability of global security system. He also reminded that they could even find states
without nuclear materials as a transit point and make them their target with the nuclear weapon they
developed. For example, if countries like Nepal – without any nuclear weapons and without any kind of
regular or emergency nuclear safety and monitoring authority were chosen – for any strategic or tactical
purposes, the consequences would turn into more chaos and devastation. In the speech, the IAEA chief
explicitly presaged that “. . . The threat of nuclear terrorism is real and the global nuclear security
system needs to be strengthened in order to counter that threat.”
Graham Allison, the Director of Belfer Center for Science and International Affairs at Harvard Kennedy
School, has quoted US President Barrack Obama and his predecessor George W. Bush when they were
asked “What is the single most serious threat to American national security?” Both replied – it was
nuclear terrorism.
Similarly, when the only Defense Secretary serving both the Republican and Democrat Presidents –
Robert M. Gates – was asked, “What keeps you awake at night?” Gates responded: “It’s the thought of
a terrorist ending up with a weapon of mass destruction, especially nuclear.” The list sharing such
grave threat goes longer.
Obviously, the global leaders may have differences over the strategies to combat nuclear terrorism; but
they all, unambiguously have admitted that – Nuclear terrorism remains one of the greatest
threats to global peace and security .
Understandably, in both Nuclear Security Summit held in 2010 and in 2012, World leaders agreed on the
prospects of nuclear terrorism. Therefore, in these two summits held in Washington and Seoul and in
other similar events almost all participants have unanimously endorsed that the potential nuclear
terrorism could change the geopolitics around the world with far-reaching implications for global
security – from short-term to long-term.
While, launching Nuclear Threat Initiative (NTI) – Nuclear Materials Security Index (2014), its Co-
Chairman and former US Senator Sam Nunn claimed, “Today, nearly 2,000 metric tons of weapons-
usable nuclear materials . . . are stored at hundreds of sites around the world”. Some of those materials,
according to Nunn, are poorly secured and vulnerable to theft or sale on the black market . Terrorist
organizations have plainly stated their desire to use nuclear weapons, and Nunn says that the
terrorists need not go where there is the most material; they will go where the material is most vulnerable.
Tanya Ogilvie-White and David Santoroi, in a January 2014 special report they prepared for Australian
Strategic Policy Institute (ASPI), have stated that there are three pathways to nuclear terrorism. The most
worrying, according to them involves the theft or acquisition of a nuclear weapon from existing military
stocks. The second, they say, “involves the theft and trafficking of radioactive or nuclear materials by
terrorists, leading to the production and detonation of an improvised nuclear device (IND) or radiological
dispersal device (RDD). The last one according to them is the terrorist attack or sabotage on a facility or
on transportation, leading to a release of radioactive material.
Evidences and Ominous Possibilities
Ogilvie-White and Santoroi giving IAEA source have stated that only in 2012, 160 incidents involving the
illegal trade and movement of nuclear or other radioactive material across national borders were
recorded. Of those, 17 involved possession and related criminal activities, 24 involved theft or loss and
119 involved other unauthorized activities. Two incidents involved highly enriched uranium (HEU) in
unauthorized activities and three others involved dangerous category of radioactive sources – two of
which were thefts.
Since early 90s to 2012, there have been dozens of confirmed thefts or loss of weapons-usable
nuclear material mostly from the countries of former Soviet Union and East European countries.
Some attempts were even made in Australia, France, and Germany. In June 2011, the Moldovan police
broke up part of a smuggling ring attempting to sell highly enriched uranium usable in nuclear weapons.
The smugglers were trying to sell for some $31 million to a serious buyer, reportedly of North African
origin. Pierre Claude NOLIN- a Canadian politician and expert on Nuclear issue has stated that even in
the United States – with the most stringent nuclear safety standards, research reactors are not immune
from theft.
Kenneth C. Brill – former U.S. ambassador to the IAEA and Kenneth N. Luongo the president of the
Partnership for Global Security have admitted that at least four terrorist groups, including Al Qaeda, have
demonstrated interest in using a nuclear device. These groups operate in or near states with histories
of questionable nuclear security practices. Both Brill and Luongo have stated that terrorists do not need to
steal a nuclear weapon. It is quite possible to make an improvised nuclear device from highly enriched
uranium or plutonium being used for civilian purposes. In addition, they say there is a black market in
such material.
The earliest evidence that shows Al Qaeda’s attempts to acquire uranium to use in a nuclear device was
in late 1993. The efforts continued and in 1998, according to Allison, Osama bin Laden issued a
statement on “The Nuclear Bomb of Islam,” and declared, “It is the duty of Muslims to prepare as much
force as possible to terrorize the enemies of God.”
According to the New York Times the militants, in past had made several attacks on bases that “are
believed to be involved in the country’s nuclear program”.
Threat Zones for Nuclear Calamity
David E. Sanger and Eric Schmitt in the New York Times (January 26,2014) has raised a critical issue
that after American troops complete withdrawal from Afghanistan – Al Qaeda and its affiliates may create
trouble in both Pakistan and Afghanistan and it would be most complicated issue for the United States to
respond a looming nuclear crisis in the region.
Sanger and Schmitt have further stated that in recent years, Pakistan has accelerated its drive to develop
small tactical nuclear weapons aiming at India. They say it is similar to what the United States placed in
Europe during the Cold War. However, such small weapons -instead of offering as a viable deterrent
value to Pakistan, are more vulnerable to theft or being seized by a terrorist organization or a rogue
commander. Therefore, American intelligence agencies have invested so heavily in monitoring the
Pakistani arsenal.
With evidences and hard-facts, it cannot be rejected outright. For example, on August 15, 2012, Islamic
militants attacked a major Pakistani Air Force Base in Kamra, some 40-kilometer North West of the
capital Islamabad – where Pakistan is said to have stored its nuclear stockpile that includes at least some
100 warheads. Surprisingly, despite continued military operations in their tribal hideouts, the militants
were able to attack in Pakistan’s most sensitive military installations; they destroyed one jet fighter, and
killed several security personnel.
In October 2009, militants had even attempted the army headquarters of Pakistan located in the garrison
city of Rawalpindi and controlled some parts of it.
Recently in January 20, while there were reports on the part of both Pak and Afghan governments that
described their engagement with Taliban, the Pakistani Taliban made a bomb attack in a crowded market
in Rawalpindi – near the army headquarter. Because of series of bomb blasts in Pakistan’s restive tribal
region on the North East including Rawalpindi, Pakistan’s Prime Minister Nawaz Sharif cancelled his trip
to the World Economic Forum in Davos, Switzerland.
Besides, scientific research institutes, and research bodies located at universities and campuses are
considered vulnerable to thefts of nuclear and radiological materials. Fissile materials in such bodies are
relatively open to the public or have many users and visitors, ASPI says. Nuclear research laboratories
located on university campuses and operated by students, are considerably less secure and much more
exposed to theft.
Similarly, the saboteurs and terrorists can crash an airplane into a nuclear power station or use car bomb
or truck bomb into a nuclear reactor or mount cyber attacks controlling the activities of those reactors
similar to“STUXNET” that was launched against Iranian nuclear facility in Natanz. (For detail please read,
“Cyber Weapons- Are They the Deadliest Means of Modern Warfare?” Eurasia Review on September 27,
2012.)
It is also feared that during political crisis – countries such as Pakistan or North Korea, may lose control
over nuclear weapons or fissile materials. Similarly, vast amount of weapon usable nuclear materials are
available around the world and they have remained outside international security mechanisms. On this
milieu, hundreds of questions have been raised on the possibilities of nuclear materials falling at the
wrong hands and unfortunately, international community has not effectively developed any effective
mechanism to protect the world from any such disaster.
Understandably, nuclear technology is about 70 years old. No nation or a group of nations has monopoly
of the knowledge and ability to make a nuclear weapon. Various highly sophisticated simply non-nuclear
mechanical instruments that are easily available in open market can be assembled to develop into an
improvised nuclear weapon. Correspondingly, any small group of people, without any access to the
classified literature, but with the knowledge available in the market, can hire some highly skilled scientists
and build a crude nuclear explosive device. Therefore, a nuclear bomb at the hand of a terrorist is not
an imagination – but a dire possibility .
But, Best Efforts can Bear Fruits
National and international watchdogs working for nuclear safety and security have expressed their
concerns over series of threats as follows:
Any well-resourced non-state actors and terrorist organization with some secured area to develop nuclear
facilities might steal or illicitly purchase weapon grade uranium or plutonium and use them to make an
improvised nuclear bomb.
There are many non-state actors including terrorist organizations that are making hard attempts
to obtain information, technology or expertise required to acquire or use nuclear materials for
malicious purposes, or to disrupt information technology based control systems at nuclear facilities.
Mainly, nuclear weapons or weapon grade nuclear materials can be stolen from countries without
effective layers of its physical and legal security, but no country has foolproof security- even the United
States.
Terrorist organizations may find safe haven in states – with or without nuclear weapons, and lacking
national capabilities to prevent, detect, respond, and prosecute illicit nuclear trafficking. Political instability
and insurgency in nuclear power states may inspire terrorist organization seize those weapons.

Extinction
Hellman 8 (Martin E. Hellman, emeritus prof of engineering @ Stanford, “Risk Analysis of Nuclear
Deterrence” SPRING 2008 THE BENT OF TAU BETA PI, http://www.nuclearrisk.org/paper.pdf)

The threat of nuclear terrorism looms much larger in the public’s mind than the threat of a full-scale nuclear war, yet this
article focuses primarily on the latter. An explanation is therefore in order before proceeding. A terrorist attack involving a
nuclear weapon would be a catastrophe of immense proportions: “A 10-kiloton bomb detonated at Grand Central
Station on a typical work day would likely kill some half a million people, and inflict over a trillion dollars in direct economic damage.
America and its way of life would be changed forever.” [Bunn 2003, pages viii-ix]. The likelihood of such an attack is also
significant. Former Secretary of Defense William Perry has estimated the chance of a nuclear terrorist incident
within the next decade to be roughly 50 percent [Bunn 2007, page 15]. David Albright, a former weapons inspector in Iraq,
estimates those odds at less than one percent, but notes, “We would never accept a situation where the chance of a major nuclear
accident like Chernobyl would be anywhere near 1% .... A nuclear terrorism attack is a low-probability event, but we can’t live in a
world where it’s anything but extremely low-probability.” [Hegland 2005]. In a survey of 85 national security experts,
Senator Richard Lugar found a median estimate of 20 percent for the “probability of an attack involving a nuclear
explosion occurring somewhere in the world in the next 10 years,” with 79 percent of the respondents
believing “it more likely to be carried out by terrorists” than by a government [Lugar 2005, pp. 14-15]. I support
increased efforts to reduce the threat of nuclear terrorism, but that is not inconsistent with the approach of this article. Because
terrorism is one of the potential trigger mechanisms for a full-scale nuclear war, the risk analyses proposed herein will
include estimating the risk of nuclear terrorism as one component of the overall risk. If that risk, the overall risk, or both are found to
be unacceptable, then the proposed remedies would be directed to reduce which- ever risk(s) warrant attention. Similar remarks
apply to a number of other threats (e.g., nuclear war between the U.S. and China over Taiwan). his article would be incomplete if it
only dealt with the threat of nuclear terrorism and neglected the threat of full- scale nuclear war. If both risks are unacceptable, an
effort to reduce only the terrorist component would leave humanity in great peril. In fact, society’s almost total neglect of the
threat of full-scale nuclear war makes studying that risk all the more important . The cosT of World War iii The
danger associated with nuclear deterrence depends on both the cost of a failure and the failure rate.3 This section explores the cost
of a failure of nuclear deterrence, and the next section is concerned with the failure rate. While other definitions are possible, this
article defines a failure of deterrence to mean a full-scale exchange of all nuclear weapons available to the U.S. and Russia, an
event that will be termed World War III. Approximately 20 million people died as a result of the first World War. World War II’s
fatalities were double or triple that number—chaos prevented a more precise deter- mination. In both cases humanity recovered,
and the world today bears few scars that attest to the horror of those two wars. Many people therefore implicitly believe that a third
World War would be horrible but survivable, an extrapola- tion of the effects of the first two global wars. In that view, World War III,
while horrible, is something that humanity may just have to face and from which it will then have to recover. In contrast, some of
those most qualified to assess the situation hold a very different view. In a 1961 speech to a joint session of the Philippine Con-
gress, General Douglas MacArthur, stated, “Global war has become a Frankenstein to destroy both sides. … If you lose, you are
annihilated. If you win, you stand only to lose. No longer does it possess even the chance of the winner of a duel. It
contains now only the germs of double suicide.” Former Secretary of Defense Robert McNamara ex- pressed a similar
view: “If deterrence fails and conflict develops, the present U.S. and NATO strategy carries with it a high risk that Western
civilization will be destroyed” [McNamara 1986, page 6]. More recently, George Shultz, William Perry, Henry Kissinger, and
Sam Nunn4 echoed those concerns when they quoted President Reagan’s belief that nuclear weapons were “totally irrational, totally
inhu- mane, good for nothing but killing, possibly destructive of life on earth and civilization.” [Shultz 2007] Official studies, while
couched in less emotional terms, still convey the horrendous toll that World War III would exact: “ The resulting deaths would
be far beyond any precedent. Executive branch calculations show a range of U.S. deaths from 35 to 77 percent (i.e., 79-160
million dead) … a change in targeting could kill somewhere between 20 million and 30 million additional people on each side ....
These calculations reflect only deaths during the first 30 days. Additional millions would be injured, and many would eventually die
from lack of adequate medical care … millions of people might starve or freeze during the follow- ing winter, but it is not possible to
estimate how many. … further millions … might eventually die of latent radiation effects.” [OTA 1979, page 8] This OTA report also
noted the possibility of serious ecological damage [OTA 1979, page 9], a concern that as- sumed a new potentiality when the
TTAPS report [TTAPS 1983] proposed that the ash and dust from so many nearly simultaneous nuclear explosions and their
resultant fire- storms could usher in a nuclear winter that might erase homo sapiens from the face of the earth,
much as many scientists now believe the K-T Extinction that wiped out the dinosaurs resulted from an impact winter caused by ash
and dust from a large asteroid or comet striking Earth. The TTAPS report produced a heated debate, and there is still no scientific
consensus on whether a nuclear winter would follow a full-scale nuclear war. Recent work [Robock 2007, Toon 2007] suggests that
even a limited nuclear exchange or one between newer nuclear-weapon states, such as India and Pakistan, could have
devastating long-lasting climatic consequences due to the large volumes of smoke that would be generated by fires in
modern megacities. While it is uncertain how destructive World War III would be, prudence dictates that we apply the same engi-
neering conservatism that saved the Golden Gate Bridge from collapsing on its 50th anniversary and assume that preventing
World War III is a necessity—not an option.
 legal regimes adv
Adv 2---legal regimes

The administration has asserted TK is legally justified under armed conflict AND
self-defense authority
Naz K. Modirzadeh 14, Senior Fellow at Harvard Law School-Brookings Project on Law and Security,
Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human
Rights Policy and Human Rights Law to War Governance, http://harvardnsj.org/wp-
content/uploads/2014/01/Modirzadeh-Final.pdf

As to the jus ad bellum, 124 the government based its authority to attack 125 targets outside of the armed
conflicts in Iraq and Afghanistan on three concepts.126 The government has not articulated which of
these principles it relied upon or how the three concepts legally interacted.127 First, the U.S. is engaged
in an ongoing non-international armed conflict with al Qaeda, the Taliban, and associated forces around
the world, authorized by the AUMF.128 Second, the U.S. may be operating within a given territorial state,
such as Yemen or Pakistan, with that state’s consent. That consent may take the form of inviting the U.S.
to support that nation in its own preexisting NIAC with a particular purported branch or associated force of
al Qaeda or the Taliban.129 Such a framework tracks the same logic as the multinational/transnational
NIACs of Iraq and Afghanistan, where the sovereign territorial states have invited the U.S. to remain on
their territory. Alternatively, that consent may be given simply to allow the U.S. to intervene on the
sovereign territory of the state in order to pursue the U.S.’s armed conflict with al Qaeda, the Taliban,
and/or associated forces in that particular instance. This consent need not be public; it need not be
officially or formally articulated; it may be construed by silence; and it may indeed be gleaned from lack of
objection after the attack has occurred.130 Third, the U.S. maintains a seemingly separate legal
justification for attacks against al Qaeda, the Taliban, and/or associated forces targets in any country
based on self-defense. Such self-defense would allow the United States to attack if the territorial state is
“unable or unwilling” to obviate the threat from terrorists on its territory. Furthermore, a self-defense claim
may be legally sound if a state cannot control its own territory, or is a “failed state.”131 Meanwhile, some
American academics began to argue for a theory—reportedly developed by Koh132—of “elongated
imminence” based on “battered spouse syndrome.”133
• As to jus in bello rules applicable to the geographically unbounded NIAC against al Qaeda, the Taliban,
and/or associated forces, and associated targeting operations, including against U.S. citizens, the
government “takes great care to adhere to the principles” of distinction and proportionality, as defined in
IHL.134 While the CIA and any military agencies acting under its orders or authority are to act in
accordance with IHL “principles” in their targeting, it is not clear whether the CIA can or will be held
accountable for any violations of IHL, or whether, particularly when acting in “covert operations,” they
would be subject to criminal liability under the Uniform Code of Military Justice or the War Crimes Act.135
• In February 2013, an unsigned and undated Department of Justice White Paper on “The Lawfulness of
a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or an
Associated Force" publicly surfaced.136 While the While Paper does not provide the DOJ's
comprehensive legal analysis, it does serve as a sort of "folk international law" primer, conflating
concepts, rules, and principles from IHL, IHRL, and jus ad bellum. For instance, the White Paper invokes
a concept of imminence that appears to be unrecognizable under longstanding IHRL and jus ad bellum11
It also seems to take an extraordinarily narrow view under international law of the Administration's
obligation to seek the capture of terrorists away from "hot" battlefields before using lethal force.138
Finally, it argues for territorially unbounded NIAC by way of analogy.139
Combined, this remarkably opaque collection of purported international legal bases for the CIA and,
perhaps less so, the military to target members of al Qaeda, the Taliban, and associated forces in any
country at any time may make some nostalgic for the days when the government simply rejected the
applicability of international law to the war on terror. These legal arguments and positions indicate that
while the Bush Administration coined and regularly used the term "war on terror," the Obama
Administration much more actively pursues an armed conflict with al Qaeda, the Taliban, and associated
forces in & global context}40 That is, it extends the conduct of hostilities, as opposed to detention
operations or CIA capture operations, to multiple sites around the world, and explicitly states that it is
doing so pursuant to an armed conflict with a terrorist organization and its associates. In doing so, the
Obama Administration purportedly expands the scope of the applicability of IHL to any place that the
United States targets these individuals, typically with only a passing reference to the “sovereignty” of the
state on which the terrorist is being targeted.141 It then states that certain IHL principles are being
applied—or at least considered—by a clandestine branch of the government whose accountability to the
rules of IHL is unclear.142
Whether or not it is meaningfully different, and whether or not Obama Administration officials lament the
condition in which they found the country and the government, it is certainly the case that President
Obama made the “war against al Qaeda” much more than a rhetorical flourish or a tool that is mainly used
to capture individuals abroad and bring them into secretive prisons or Guantánamo. The upshot is that the
Obama Administration treats the war against al Qaeda and associated forces much more as a war in the
sense of actual armed attacks against targets all over the world than did the Bush Administration. While
there had been several instances of such treatment during the Bush Administration, perhaps most
infamously the 2002 attack in Yemen, the scale and speed of the attacks under President Obama is far
greater than anything carried out by his predecessor.
The Obama Administration’s policy shift occurs within an entirely different rhetorical environment and in a
context in which this approach— which one could reasonably call “global war”—is articulated through the
language of IHL. After the profound dismay felt by many in the legal profession and academia over the
legal memoranda provided to President Bush, the Obama Administration appoints some of the country’s
finest international lawyers, many of them well known to the IHL and human rights lawyers who have
been fighting against the war on terror throughout this story.143 Indeed, many of the international lawyers
who join the Obama Administration have been involved in legal or scholarly efforts to curtail the Bush
Administration’s pursuit of the global war on terror. In this sense, as we head into the reactions by IHL
and IHRL to these positions, there seems to be far more benefit of the doubt granted to this
Administration’s approach to the conflict.144
In a strange coda to the arguments and positions taken by the government throughout these debates, a
number of officials suggest by the end of this phase that killing suspected terrorists has become legally
and logistically easier than detaining them. Indeed, many have argued that this is precisely what is
happening in various situations around the world— whether in Iraq and Afghanistan, as troop drawdown
is contemplated in earnest, or in Somalia,145 Yemen,146 and Pakistan 147— with members of the armed
forces and drone operators reportedly finding it easier to kill targets148 than to take them into U.S.
custody.149

That erodes international norm development for both humanitarian and human
rights law
Laurie Blank, Director, International Humanitarian Law Clinic, Emory Law School, 20 12, Targeted
Strikes: The Consequences of Blurring the Armed Conflict and Self-Defense Justifications,
http://www.wmitchell.edu/lawreview/Volume38/documents/11.BlankFINAL.pdf

As noted in the introduction to this article, maintaining the separation between and independence of jus
ad bellum and jus in bello is vital for the effective application of the law and protection of persons in
conflict. The discussion that follows will refer to both the LOAC and the law of self-defense extensively in
a range of situations in order to analyze and highlight the risks of blurring the lines between the two
paradigms. However, it is important to note that the purpose here is not to conflate the two paradigms, but
to emphasize the risks inherent in blurring these lines. Preserving the historic separation remains central
to the application of both bodies of law , to the maintenance of international security, and to the
regulation of the conduct of hostilities .
III. BLURRING THE LINES
The nature of the terrorist threat the United States and other states face does indeed raise the possibility
that both the armed conflict and the self-defense paradigms are relevant to the use of targeted strikes
overall. The United States has maintained for the past ten years that it is engaged in an armed conflict
with al Qaeda66 and, notwithstanding continued resistance to the notion of an armed conflict between a
state and a transnational terrorist group in certain quarters, there is general acceptance that the scope of
armed conflict can indeed encompass such a state versus non-state conflict. Not all U.S. counterterrorism
measures fit within the confines of this armed conflict, however, with the result that many of the U.S.
targeted strikes over the past several years may well fit more appropriately within the self-defense
paradigm. The existence of both paradigms as relevant to targeted strikes is not inherently problematic. It
is the United States’ insistence on using reference to both paradigms as justification for individual attacks
and the broader program of targeted strikes that raises significant concerns for the use of international
law and the protection of individuals by blurring the lines between the key parameters of the two
paradigms.
A. Location of Attacks: International Law and the Scope of the Battlefield
The distinct differences between the targeting regimes in armed conflict and in self-defense and who can
be targeted in which circumstances makes understanding the differentiation between the two paradigms
essential to lawful conduct in both situations. The United States has launched targeted strikes in
Afghanistan, Pakistan, Yemen, Somalia, and Syria during the past several years. The broad geographic
range of the strike locations has produced significant questions—as yet mostly unanswered— and debate
regarding the parameters of the conflict with al Qaeda.67 The U.S. armed conflict with al Qaeda and other
terrorist groups has focused on Afghanistan and the border regions of Pakistan, but the United States has
launched an extensive campaign of targeted strikes in Yemen and some strikes in Somalia in the past
year as well. In the early days of the conflict, the United States seemed to trumpet the notion of a global
battlefield, in which the conflict with al Qaeda extended to every corner of the world.68 Others have
argued that conflict, even one with a transnational terrorist group, can only take place in limited, defined
geographic areas.69 At present, the United States has stepped back from the notion of a global
battlefield, although there is little guidance to determine precisely what factors influence the parameters of
the zone of combat in the conflict with al Qaeda.70
Traditionally, the law of neutrality provided the guiding framework for the parameters of the battlespace in an international armed conflict. When two or more states are fighting
and certain other states remain neutral, the line between the two forms the divider between the application of the laws of war and the law of neutrality.71 The law of neutrality is
based on the fundamental principle that neutral territory is inviolable72 and focuses on three main goals: (1) contain the spread of hostilities, particularly by keeping down the
number of participants; (2) define the legal rights of parties and nonparties to the conflict; and (3) limit the impact of war on nonparticipants, especially with regard to
commerce.73 In this way, neutrality law leads to a geographic-based framework in which belligerents can fight on belligerent territory or the commons, but must refrain from any
operations on neutral territory. In essence, the battlespace in a traditional armed conflict between two or more states is anywhere outside the sovereign territory of any of the
neutral states.74 The language of the Geneva Conventions tracks this concept fairly closely. Common Article 2, which sets forth the definition of international armed conflict,
states that such conflict occurs in “all cases of declared war or . . . any other armed conflict which may arise between two or more of the High Contracting Parties.”75 In
Common Article 3, noninternational armed conflicts include conflicts between a state and non-state armed groups that are “occurring in the territory of one of the High
Contracting Parties.”76 Both of these formulations tie the location of the armed conflict directly to the territory of one or more belligerent parties.
The neutrality framework as a geographic parameter is left wanting in today’s conflicts with terrorist groups, however. First, as a formal matter, the law of neutrality technically
only applies in cases of international armed conflict.77 Even analogizing to the situations we face today is highly problematic, however, because today’s conflicts not only pit
states against non-state actors, but because those actors and groups often do not have any territorial nexus beyond wherever they can find safe haven from government
intrusion. As state and non-state actors have often shifted unpredictably and irregularly between acts characteristic of wartime and those characteristic of not-wartime[, t]he
unpredictable and irregular nature of these shifts makes it difficult to know whether at any given moment one should understand them as armies and their enemies or as police
forces and their criminal adversaries.78
Simply locating terrorist groups and operatives does not therefore identify the parameters of the battlefield—the fact that the United States and other states use a combination of
military operations and law enforcement measures to combat terrorism blurs the lines one might look for in defining the battlefield. In many situations, “the fight against
transnational jihadi groups . . . largely takes place away from any recognizable battlefield.”79
Second, a look at U.S. jurisprudence in the past and today demonstrates a clear break between the framework applied in past wars and the views courts are taking today. U.S.
courts during World War I viewed “the port of New York [as] within the field of active [military] operations.”80 Similarly, a 1942 decision upholding the lawfulness of an order
evacuating JapaneseAmericans to a military area stated plainly that the field of military operation is not confined to the scene of actual physical combat. Our cities and
transportation systems, our coastline, our harbors, and even our agricultural areas are all vitally important in the all-out war effort in which our country must engage if our form of
government is to survive.81
In each of those cases, the United States was a belligerent in an international armed conflict; the law of neutrality mandated that U.S. territory was belligerent territory and
therefore part of the battlefield or combat zone. The courts take a decidedly different view in today’s conflicts, however, consistently referring to the United States as “outside a
zone of combat,”82 “distant from a zone of combat,”83 or not within any “active [or formal] theater of war,”84 even while recognizing the novel geographic nature of the conflict.
Even more recently, in Al Maqaleh v. Gates, both the District Court and the Court of Appeals distinguished between Afghanistan, “a theater of active military combat,”85 and
other areas (including the United States), which are described as “far removed from any battlefield.”86 In a traditional belligerency-neutrality framework, one would expect to see
U.S. territory viewed as part of the battlefield; the fact that courts consistently trend the other way highlights both the difference in approach and the uncertainty involved in
defining today’s conflicts.
The current U.S. approach of using both the armed conflict paradigm and the self-defense paradigm as
justifications for targeted strikes without further clarification serves to exacerbate the legal challenges
posed by the geography of the conflict, at both a theoretical and a practical level. First, at the most
fundamental level, uncertainty regarding the parameters of the battlefield has significant consequences
for the safety and security of individuals. During armed conflict, the LOAC authorizes the use of force as a
first resort against those identified as the enemy, whether insurgents, terrorists or the armed forces of
another state. In contrast, human rights law, which would be the dominant legal framework in areas where
there is no armed conflict, authorizes the use of force only as a last resort.87 Apart from questions
regarding the application of human rights law during times of war, which are outside the scope of this
article, the distinction between the two regimes is nonetheless starkest in this regard. The former permits
targeting of individuals based on their status as members of a hostile force; the latter—human rights law
—permits lethal force against individuals only on the basis of their conduct posing a direct threat at that
time. The LOAC also accepts the incidental loss of civilian lives as collateral damage, within the bounds
of the principle of proportionality;88 human rights law contemplates no such casualties. These contrasts
can literally mean the difference between life and death in many situations. Indeed, “If it is often
permissible to deliberately kill large numbers of humans in times of armed conflict, even though such an
act would be considered mass murder in times of peace, then it is essential that politicians and courts be
able to distinguish readily between conflict and nonconflict, between war and peace.”89 However, the
overreliance on flexibility at present means that U.S. officials do not distinguish between conflict and non-
conflict areas but rather simply use the broad sweep of armed conflict and/or self-defense to cover all
areas without further delineation.
Second, on a broader level of legal application and interpretation, the development of the law itself is
affected by the failure to delineate between relevant legal paradigms. “Emerging technologies of
potentially great geographic reach raise the issue of what regime of law regulates these activities as they
spread,”90 and emphasize the need to foster, rather than hinder, development of the law in these areas.
Many argue that the ability to use armed drones across state borders without risk to personnel who could
be shot down or captured across those borders has an expansive effect on the location of conflict and
hostilities. In effect, they suggest that it is somehow “easier” to send unmanned aircraft across sovereign
borders because there is no risk of a pilot being shot down and captured, making the escalation and
spillover of conflict more likely.91 Understanding the parameters of a conflict with terrorist groups is
important, for a variety of reasons, none perhaps more important than the life-and-death issues detailed
above. By the same measure, understanding the authorities for and limits on a state’s use of force in
self-defense is essential to maintaining orderly relations between states and to the ability of states to
defend against attacks, from whatever quarter. The extensive debates in the academic and policy worlds
highlight the fundamental nature of both inquiries. However, the repeated assurances from the U.S.
government that targeted strikes are lawful in the course of armed conflict or in exercise of the legitimate
right of self-defense—without further elaboration and specificity—allows for a significantly less nuanced
approach. As long as a strike seems to fit into the overarching framework of helping to defend the United
States against terrorism, there no longer would be a need to carefully delineate the parameters of armed
conflict and self-defense, where the outer boundaries of each lie and how they differ from each other.
From a purely theoretical standpoint, this limits the development and implementation of the law. Even
from a more practical policy standpoint, the United States may well find that the blurred lines prove
detrimental in the future when it seeks sharper delineations for other purposes .

The impact is unrestrained use of force in conflict

Naz K. Modirzadeh 14, Senior Fellow at Harvard Law School-Brookings Project on Law and Security,
Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human
Rights Policy and Human Rights Law to War Governance, http://harvardnsj.org/wp-
content/uploads/2014/01/Modirzadeh-Final.pdf

The central purpose of the convergence of IHL and IHRL is to increase the protection of individuals in
armed conflict. The notion behind the insistence that IHL and IHRL are part of the same discipline
suggests that IHL is part of the far larger and more broadly applicable legal realm of IHRL. Indeed, the
very idea of the “humanization of humanitarian law”159 is that the cold, brutal balancing of IHL, its
perceived deference to the military and the needs of the state is opened up and mitigated by a body of
law that protects the individual’s human rights against the state. Yet here the story flips: It is IHRL that
seems to become part of IHL. It is IHRL that, by the end of our narrative, seems to be brought into the
service of conflict, to act not as a powerful check on the brute force of the sovereign, not as the voice of
the international community against those who wish to prioritize national security over individual liberties,
but rather as a means to regulate the use of lethal violence. Having argued vociferously that IHRL applies
in all situations of armed conflict at all times in order to protect individuals, the argument suddenly turns in
the other direction. It becomes possible to say that IHRL can be utilized to allow for one state to invade
another state’s territory in order to murder individuals without an attempt to arrest, detain, charge, and try
these individuals. What is so striking in this view is how well—if that is the right word—the convergence
argument worked, or at least how much work convergence ended up doing. Remarkably, many who wish
to justify a far broader and even more aggressive CIA drone program cite convergence as a basis for
doing so.160
For the application of IHL, on the other hand, the dominant assumption of convergence—that human
rights law and IHL are part of the same general field, that they apply simultaneously, and that they are
part of the same conversation—may have had the effect of loosening the boundaries around the field of
application of IHL. As the two bodies of law began to be used interchangeably—as an attack utilizing a
five hundred pound bomb is analogized to a police officer using a weapon when faced with the imminent
danger of a hostage situation—one effect on the perception of IHL may be that it is no longer seen as a
tightly controlled body of law. As many leading IHL lawyers warned in 2001 and 2002, once IHL is
applied, many ugly things that we generally see as illegal, as outside the realm of rule of law, suddenly
become lawful. Those IHRL lawyers who argued that IHRL applies simultaneously to IHL during armed
conflict may have contributed to the blurring of the line between war and not-war.

That causes global war

Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law, New York University School of Law,
December 2009, CONTROLLING THE RECOURSE TO WAR BY MODIFYING JUS IN BELLO,
Yearbook of International Humanitarian Law / Volume 12

A substantial literature exists on the conflation of jus ad bellum and jus in bello . However, the
consequences for the former side of the equation – the resort to war – is generally under-examined.
Instead, academic commentary has focused on the effects of compliance with humanitarian rules in
armed conflict and, in particular, the equality of application principle. In this section, I attempt to help
correct that imbalance.
In the following analysis, I use the (admittedly provocative) short-hand labels of ‘desirable’ and ‘undesirable’ wars. The former consists of efforts that aim to promote the general
welfare of foreign populations such as humanitarian interventions and, on some accounts, peacekeeping operations. The latter – undesirable wars – include conflicts that result
from security spirals that serve neither state’s interest and also include predatory acts of aggression.
4.1.1 Decreased likelihood of ‘desirable wars’
A central question in debates about humanitarian intervention is whether the international community should be more concerned about the prospect of future Kosovos –
ambitious military actions without clear legal authority – or future Rwandas – inaction and deadlock at the Security Council. Indeed, various institutional designs will tend to favor
one of those outcomes over the other. In 1999, Kofi Annan delivered a powerful statement that appeared to consider the prospect of repeat Rwandas the greater concern; and
he issued a call to arms to support the ‘developing international norm in favor of intervention to protect civilians from wholesale slaughter’.95
Ifoneassumesthatthereis,indeed,aneedforcontinuedorgreatersupport for humanitarian uses of force, Type I erosions of the separation principle pose a serious threat to that
vision. And the threat is not limited to unilateral uses of force. It also applies to military operations authorized by the Security Council. In short, all ‘interventions to protect
civilians from wholesale slaughter’ are affected.
Two developments render desirable interventions less likely. First, consider implications of the Kosovo Commission/ICISS approach. The scheme imposes greater requirements
on armed forces engaged in a humanitarian mission with respect to safeguarding civilian ives.96 If that scheme is intended to smoke out illicit intent,97 it is likely to have
perverse effects: suppressing sincere humanitarian efforts at least on the margins. Actors engaged in a bona fide humanitarian intervention generally tend to be more protective
of their own armed forces than in other conflicts. It is instructive to consider, for instance, the precipitous US withdrawal from the UN mission in Somalia – code-named
Operation Restore Hope – after the loss of eighteen American soldiers in the Battle of Mogadishu in 1993, and the ‘lesson’ that policymakers drew from that conflict.98
Additionally, the Kosovoc ampaign – code-named Operation Noble Anvil – was designed to be a ‘zero-casualty war’ for US soldiers, because domestic public support for the
campaign was shallow and unstable. The important point is that the Kosovo Commission/ICISS approach would impose additional costs on genuine humanitarian efforts, for
which it is already difficult to build and sustain popular support. As a result, we can expect to see fewer bona fide interventions to protect civilians from atrocities.99 Notably,
such results are more likely to affect two types of states: states with robust, democratic institutions that effectively reflect public opinion and states that highly value compliance
with jus in bello. Both of those are the very states that one would most want to incentivize to initiate and participate in humanitarian interventions.
The second development shares many of these same consequences. Consider the implications of the British House of Lords decision in Al-Jedda which cast doubt on the
validity of derogations taken in peacekeeping operations as well as other military efforts in which the homeland is not directly at stake and the state could similarly withdraw. The
scheme imposes a tax on such interventions by precluding the government from adopting measures that would otherwise be considered lawful and necessary to meet exigent
circumstances related to the conflict. Such extraordinary constraints in wartime may very well temper the resolve to engage in altruistic intervention and military efforts that
involve similar forms of voluntarism on the part of the state. Such a legal scheme may thus yield fewer such operations and the participation of fewer states in such multilateral
efforts. And, the impact of the scheme should disproportionately affect the very states that take international human rights obligations most seriously.
Notably, in these cases, the disincentives might weigh most heavily on third parties: states that decide whether and to what degree to participate in a coalition with the principal
intervener. It is to be expected that the commitment on the part of the principal intervener will be stronger, and thus not as easily shifted by the erosion of the separation
principle. The ability, however, to hold together a coalition of states is made much more difficult by these added burdens. Indeed, as the United States learned in the Kosovo
campaign, important European allies were wary about the intervention, in part due to its lack of an international legal pedigree. And the weakness of the alliance, including
German and Italian calls for an early suspension of the bombing campaign, impeded the ability to wage war in the first place. It may be these third party states and their decision
whether to join a humanitarian intervention where the international legal regime matters most. Without such backing of important allies, the intervention itself is less likely to
occur. It is also those states – the more democratic, the more rights respecting, and the more law abiding – that the international regime should prefer to be involved in these
kinds of interventions.
The developments regulating jus ad bellum through jus in bello also threaten to make ‘undesirable wars’
more likely. In previous writing, I argue that encouraging states to frame their resort to force through
humanitarian objectives rather than other rationales would, in the aggregate, reduce the overall level of
disputes that result in uncontrolled escalation and war .100 A reverse relationship also holds true. That
is, encouraging states to forego humanitarian rationales in favor of other justifications for using force may
culminate in more international disputes ending in uncontrolled escalation and war . This outcome
is especially likely to result from the pressures created by Type I erosions of the separation principle.
First, increasing the tax on humanitarian interventions (the Kosovo Commission/ICISS approach) and
‘wars of choice’ (the Al-Jedda approach) would encourage states to justify their resort to force on
alternative grounds. For example, states would be incentivized to invoke other legitimated frameworks –
such as security rationales involving the right to self-defense, collective self-defense, anticipatory self-
defense, and traditional threats to international peace and security. And, even if military action is pursued
through the Security Council, states may be reluctant to adopt language (in resolutions and the like)
espousing or emphasizing humanitarian objectives.
Second, the elevation of self-regarding – security and strategic – frameworks over humanitarian ones is
more likely to lead to uncontrolled escalation and war . A growing body of social science scholarship
demonstrates that the type of issue in dispute can constitute an important variable in shaping the course
of interstate hostilities. The first generation of empirical scholarship on the origins of war did not consider
this dimension. Political scientists instead concentrated on features of the international system (for
example, the distribution of power among states) and on the characteristics of states (for example, forms
of domestic governance structures) as the key explanatory variables. Research agendas broadened
considerably, however, in subsequent years. More recently, ‘[s]everal studies have identified substantial
differences in conflict behavior over different types of issues’.101 The available evidence shows that
states are significantly more inclined to fight over particular types of issues that are elevated in a dispute,
despite likely overall material and strategic losses.102 Academic studies have also illuminated possible
causal explanations for these empirical patterns. Specifically, domestic (popular and elite) constituencies
more readily support bellicose behavior by their government when certain salient cultural or ideological
issues are in contention. Particular issue areas may also determine the expert communities (humanitarian
versus security mindsets) that gain influence in governmental circles – a development that can shape the
hard-line or soft-line strategies adopted in the course of the dispute. In short, these links between
domestic political processes and the framing of international disputes exert significant influence on
whether conflicts will eventually culminate in war.
Third, a large body of empirical research demonstrates that states will routinely engage in interstate
disputes with rivals and that those disputes which are framed through security and strategic rationales are
more likely to escalate to war. Indeed, the inclusion of a humanitarian rationale provides windows of
opportunity to control and deescalate a conflict. Thus, eliminating or demoting a humanitarian rationale
from a mix of justifications (even if it is not replaced by another rationale) can be independently
destabilizing . Espousing or promoting security rationales, on the other hand, is more likely to culminate
in public demands for increased bellicosity, unintended security spirals, and military violence.103
Importantly, these effects may result even if one is skeptical about the power of international law to
influence state behavior directly. It is reasonable to assume that international law is unlikely to alter the
determination of a state to wage war, and that international law is far more likely to influence only the
justificatory discourse states employ while proceeding down the warpath. However, as I argue in my
earlier work, leaders (of democratic and nondemocratic) states become caught in their official
justifications for military campaigns. Consequently, framing the resort to force as a pursuit of security
objectives, or adding such issues to an ongoing conflict, can reshape domestic political arrangements,
which narrows the subsequent range of policy options. Issues that initially enter a conflict due to
disingenuous representations by political leaders can become an authentic part of the dispute over time.
Indeed, the available social science research, primarily qualitative case studies, is even more relevant
here. A range of empirical studies demonstrate such unintended consequences primarily in the case of
leaders employing security-based and strategic rationales to justify bellicose behavior.104 A central
finding is that pretextual and superficial justifications can meaningfully influence later stages of the
process that shape popular and elite conceptions of the international dispute. And it is those
understandings that affect national security strategies and the ladder of escalation to war. Indeed, one set
of studies – of empires – suggests these are mechanisms for powerful states entering into disastrous
military campaigns that their leaders did not initially intend.

A strong, adaptive LOAC regime is key to regulate inevitable autonomous weapons – the impact is
global war
Mark Gubrud 14, prof at UNC-Chapel Hill, was a research fellow at Princeton specializing in arms
control, Stopping killer robots, Bulletin of the Atomic Scientists January/February 2014 vol. 70 no.1 32-42

Since the first lethal drone strike in 2001, the US use of remotely operated robotic weapons has
dramatically expanded. Along with the broader use of robots for surveillance, ordnance disposal, logistics,
and other military tasks, robotic weapons have spread rapidly to many nations, captured public attention,
and sparked protest and debate. Meanwhile, every dimension of the technology is being vigorously
explored. From stealthy, unmanned jets like the X-47B and its Chinese and European counterparts, to
intelligent missiles, sub-hunting robot ships, and machine gun-wielding micro-tanks, robotics is now the
most dynamic and destabilizing component of the global arms race.
Drones and robots are enabled by embedded autonomous subsystems that keep engines in tune and
antennas pointed at satellites, and some can navigate, walk, and maneuver in complex environments
autonomously. But with few exceptions, the targeting and firing decisions of armed robotic systems
remain tightly under the control of human operators. This may soon change.
Autonomous weapons are robotic systems that, once activated, can select and engage targets without
further intervention by a human operator (Defense Department, 2012). Examples include drones or
missiles that hunt for their targets, using their onboard sensors and computers. Based on a computer’s
decision that an appropriate target has been located, that target will then be engaged. Sentry systems
may have the capability to detect intruders, order them to halt, and fire if the order is not followed. Future
robot soldiers may patrol occupied cities. Swarms of autonomous weapons may enable a preemptive
attack on an adversary’s strategic forces. Autonomous weapons may fight each other .
Just as the emergence of low-cost, high-performance information technology has been the most
important driver of technological advance over the past half-century—including the revolution in military
affairs already seen in the 1980s and displayed to the world during the 1991 Gulf War—so the emergence
of artificial intelligence and autonomous robotics will likely be the most important development in both
civilian and military technology to unfold over the next few decades.
Proponents of autonomous weapons argue that technology will gradually take over combat decision
making: “Detecting, analyzing and firing on targets will become increasingly automated, and the contexts
of when such force is used will expand. As the machines become increasingly adept, the role of humans
will gradually shift from full command, to partial command, to oversight and so on” (Anderson and
Waxman, 2013). Automated systems are already used to plan campaigns and logistics, and to assemble
intelligence and disseminate lethal commands; in some cases, humans march to orders generated by
machines. If, in the future, machines are to act with superhuman speed and perhaps even superhuman
intelligence, how can humans remain in control? As former Army Lt. Colonel T. K. Adams observed more
than a decade ago (2001), “Humans may retain symbolic authority, but automated systems move too fast,
and the factors involved are too complex for real human comprehension.”
Almost nobody favors a future in which humans have lost control over war machines. But proponents of
autonomous weapons argue that effective arms control would be unattainable. Many of the same claims
that propelled the Cold War are being recycled to argue that autonomous weapons are inevitable, that
international law will remain weak, and that there is no point in seeking restraint since adversaries will not
agree—or would cheat on agreements. This is the ideology of any arms race.
Is autonomous warfare inevitable?
Challenging the assumption of the inevitability of autonomous weapons and building on the work of earlier
activists, the Campaign to Stop Killer Robots, a coalition of nongovernmental organizations, was launched
in April 2013. This effort has made remarkable progress in its first year. In May, the United Nations
Special Rapporteur on extrajudicial killings, Christof Heyns, recommended that nations immediately
declare moratoriums on their own development of lethal autonomous robotics (Heyns, 2013). Heyns also
called for a high-level study of the issue, a recommendation seconded in July by the UN Advisory Board
on Disarmament Matters. At the UN General Assembly’s First Committee meeting in October, a flood of
countries began to express interest or concern, including China, Russia, Japan, the United Kingdom, and
the United States. France called for a mandate to discuss the issue under the Convention on Certain
Conventional Weapons, a global treaty that restricts excessively injurious or indiscriminate weapons.
Meeting in Geneva in November, the state parties to the Convention agreed to formal discussions on
autonomous weapons, with a first round in May 2014. The issue has been placed firmly on the global
public and diplomatic agenda.
Despite this impressive record of progress on an issue that was until recently virtually unknown—or
scorned as a mixture of science fiction and paranoia—there seems little chance that a strong arms control
regime banning autonomous weapons will soon emerge from Geneva. Unlike glass shrapnel, blinding
lasers, or even landmines and cluster munitions, autonomous weapon systems are not niche armaments
of negligible strategic importance and unarguable cost to humanity. Instead of the haunting eyes of
children with missing limbs, autonomous weapons present an abstract, unrealized horror, one that some
might hope will simply go away.
Unless there is a strong push from civil society and from governments that have decided against pursuing
autonomous weapons, those that have decided in favor of them—including the United States (Gubrud,
2013)—will seek to manage the issue as a public relations problem. They will likely offer assurances that
humans will remain in control, while continually updating what they mean by control as technology
advances. Proponents already argue that humans are never really out of the loop because humans will
have programmed a robot and set the parameters of its mission (Schmitt and Thurnher, 2013). But
autonomy removes humans from decision making, and even the assumption that autonomous weapons
will be programmed by humans is ultimately in doubt.
Diplomats and public spokesmen may speak in one voice; warriors, engineers, and their creations will
speak in another. The development and acquisition of autonomous weapons will push ahead if there is no
well-defined, immovable, no-go red line. The clearest and most natural place to draw that line is at the
point when a machine pulls the trigger, making the decision on whether, when, and against whom or what
to use violent force. Invoking a well-established tenet of i nternational h umanitarian l aw, opponents can
argue that this is already contrary to principles of humanity, and thus inherently unlawful. Equally
important, opponents must point out the threat to peace and security posed by the prospect of a global
arms race toward robotic arsenals that are increasingly out of human control.
Humanitarian law vs. killer robots
The public discussion launched by the Campaign to Stop Killer Robots has mostly centered on questions
of legality under international humanitarian law, also called the law of war. “Losing Humanity,” a report
released by Human Rights Watch in November 2012—coincidentally just days before the Pentagon made
public the world’s first open policy directive for developing, acquiring, and using autonomous weapons—
laid out arguments that fully autonomous weapons could not satisfy basic requirements of the law, largely
on the basis of assumed limitations of artificial intelligence (Human Rights Watch and International
Human Rights Clinic at Harvard Law School, 2012).
The principle of distinction, as enshrined in Additional Protocol I of the Geneva Conventions—and viewed
as customary international law, thus binding even on states that have not ratified the treaty—demands
that parties to a conflict distinguish between civilians and combatants, and between civilian objects and
military objectives. Attacks must be directed against combatants and military objectives only; weapons not
capable of being so directed are considered to be indiscriminate and therefore prohibited. Furthermore,
those who make attack decisions must not allow attacks that may be expected to cause excessive harm
to civilians, in comparison with the military gains expected from the attack. This is known as the principle
of proportionality.
“Losing Humanity” argues that technical limitations mean robots could not reliably distinguish civilians
from combatants, particularly in irregular warfare, and could not fulfill the requirement to judge
proportionality.1 Distinction is clearly a challenge for current technology; face-recognition technology can
rapidly identify individuals from a limited list of potential targets, but more general classification of persons
as combatants or noncombatants based on observation is well beyond the state of the art. How long this
may remain so is less clear. The capabilities to be expected of artificial intelligence systems 10, 20, or 40
years from now are unknown and highly controversial within both expert and lay communities.
While it may not satisfy the reified principle of distinction, proponents of autonomous weapons argue that
some capability for discrimination is better than none at all. This assumes that an indiscriminate weapon
would be used if a less indiscriminate one were not available; for example, it is often argued that drone
strikes are better than carpet bombing. Yet at some point autonomous discrimination capabilities may be
good enough to persuade many people that their use in weapons is a net benefit.
Judgment of proportionality seems at first an even greater challenge, and some argue that it is beyond
technology in principle (Asaro, 2012). However, the military already uses an algorithmic “collateral
damage estimation methodology” (Defense Department, 2009) to estimate incidental harm to civilians that
may be expected from missile and drone strikes. A similar scheme could be developed to formalize the
value of military gains expected from attacks, allowing two numbers to be compared. Human
commanders applying such protocols could defend their decisions, if later questioned, by citing such
calculations. But the cost of this would be to degrade human judgment almost to the level of machines.
On the other hand, IBM’s Watson computer (Ferruci et al., 2010) has demonstrated the ability to sift
through millions of pages of natural language and weigh hundreds of hypotheses to answer ambiguous
questions. While some of Watson’s responses suggest it is not yet a trustworthy model, it seems likely
that similar systems, given semantic information about combat situations, including uncertainties, might
be capable of making military decisions that most people would judge as reasonable, most of the time.
“Losing Humanity” also argues that robots, necessarily lacking emotion,2 would be unable to empathize
and thus unable to accurately interpret human behavior or be affected by compassion. An important case
of the latter is when soldiers refuse orders to put down rebellions. Robots would be ideal tools of
repression and dictatorship.
If robot soldiers become available on the world market, it is likely that repressive regimes will acquire
them, either by purchase or indigenous production. While it is theoretically possible for such systems to
be safeguarded with tamper-proof programming against human rights abuses, in the event that the world
fails to prohibit robot soldiers, unsafeguarded or poorly safeguarded versions will likely be available. A
strong prohibition has the best chance of keeping killer robots out of the hands of dictators, both by
restricting their availability and stigmatizing their use.
Accountability is another much-discussed issue. Clearly, a robot cannot be held responsible for its
actions, but human commanders and operators—or even manufacturers, programmers, and engineers—
might be held responsible for negligence or malfeasance. In practice, however, the robot is likely to be a
convenient scapegoat in case of an unintended atrocity—a technical failure occurred, it was unintended
and unforeseen, so nobody is to blame. Going further, David Akerson (2013) argues that since a robot
cannot be punished, it cannot be a legal combatant.
These are some of the issues most likely to be discussed within the Convention on Certain Conventional
Weapons. However, US Defense Department policy (2012) preemptively addresses many of these issues
by directing that “[a]utonomous and semi-autonomous weapon systems shall be designed to allow
commanders and operators to exercise appropriate levels of human judgment over the use of force.”
Under the US policy, commanders and operators are responsible for using autonomous weapons in
accordance with the laws of war and relevant treaties, safety rules, and rules of engagement. For
example, an autonomous weapon may be sent on a hunt-and-kill mission if tactics, techniques, and
procedures ensure that the area in which it is directed to search contains no objects, other than the
intended targets, that the weapon might decide to attack. In this case, the policy regards the targets as
having been selected by humans and the weapon as merely semi-autonomous, even if the weapon is
operating fully autonomously when it decides that a given radar return or warm object is its intended
target. The policy pre-approves the immediate development, acquisition, and use of such weapons.
Although the policy does not define “appropriate levels,” it applies this rubric even in the case of fully
autonomous lethal weapons targeting human beings without immediate human supervision. This makes it
clear that appropriate levels, as understood within the policy, do not necessarily require direct human
involvement in the decision to kill a human being (Gubrud, 2013). It seems likely that the United States
will press other states to accept this paradigm as the basis for international regulation of autonomous
weapons, leaving it to individual states to determine what levels of human judgment are appropriate.
Demanding human control and responsibility
As diplomatic discussions about killer robot regulation get under way, a good deal of time is apt to be lost
in confusion about terms, definitions, and scope. “Losing Humanity” seeks to ban “fully autonomous
weapons,” and Heyns’s report used the term “lethal autonomous robotics.” The US policy directive speaks
of “autonomous and semi-autonomous weapon systems,” and the distinction between these is ambiguous
(Gubrud, 2013). The Geneva mandate is to discuss “lethal autonomous weapon systems.”
Substantive questions include whether non-lethal weapons and those that target only matériel are within
the scope of discussion. Legacy weapons such as simple mines may be regarded as autonomous, or
distinguished as merely automatic, on grounds that their behavior is fully predictable by designers.3
Human-supervised autonomous and semi-autonomous weapon systems, as defined by the United States,
raise issues that, like fractal shapes, appear more complex the more closely they are examined.
Instead of arguing about how to define what weapons should be banned, it may be better to agree on
basic principles. One is that any use of violent force, lethal or non-lethal, must be by human decision and
must at all times be under human control. Implementing this principle as strictly as possible implies that
the command to engage an individual target (person or object) must be given by a human being, and only
after the target is being reliably tracked by a targeting system and a human has determined that it is an
appropriate and legal target.
A second principle is that a human commander must be responsible and accountable for the decision,
and if the commander acts through another person who operates a weapon system, that person must be
responsible and accountable for maintaining control of the system. “Responsible” refers here to a moral
and legal obligation, and “accountable” refers to a formal system for accounting of actions. Both elements
are essential to the approach.
Responsibility implies that commanders and operators may not blame inadequacies of technological
systems for any failure to exercise judgment and control over the use of violent force. A commander must
ensure compliance with the law and rules of engagement independently of any machine decision, either
as to the identity of a target or the appropriateness of an attack, or else must not authorize the attack.
Similarly, if a system does not give an operator sufficient control over the weapon to prevent unintended
engagements, the operator must refuse to operate the system.
Accountability can be demonstrated by states that comply with this principle. They need only maintain
records showing that each engagement was properly authorized and executed. If a violation is alleged,
selected records can be unsealed in a closed inquiry conducted by an international body (Gubrud and
Altmann, 2013).4
This framing, which focuses on human control and responsibility for the decision to use violent force, is
both conceptually simple and morally compelling. What remains then is to set standards for adequate
information to be presented to commanders, and to require positive action by operators of a weapon
system. Those standards should also address any circumstances under which other parties—designers
and manufacturers, for instance—might be held responsible for an unintended engagement.
There is at least one exceptional circumstance in which human control may be applied less strictly. Fully
autonomous systems are already used to engage incoming missiles and artillery rounds; examples
include the Israeli Iron Dome and the US Patriot and Aegis missile defense systems, as well as the
Counter Rocket, Artillery, and Mortar system. The timeline for response in such systems is often so short
that the requirement for positive human decision might impose an unacceptable risk of failure. Another
principle—the protection of life from immediate threats—comes into play here. An allowance seems
reasonable, if it is strictly limited. In particular, autonomous return fire should not be permitted, but only
engagement of unmanned munitions directed against human-occupied territory or vehicles. Each such
system should have an accountable human operator, and autonomous response should be delayed as
long as possible to allow time for an override decision.
The strategic need for robot arms control
Principles of humanity may be the strongest foundation for an effective ban of autonomous weapons, but
they are not necessarily the most compelling reason why a ban must be sought. The perceived military
advantages of autonomy are so great that major powers are likely to strongly resist prohibition, but by the
same token, autonomous weapons pose a severe threat to global peace and security.
Although humans have (for now) superior capabilities for perception in complex environments and for
interpretation of ambiguous information, machines have the edge in speed and precision. If allowed to
return fire or initiate it, they would undoubtedly prevail over humans in many combat situations. Humans
have a limited tolerance of the physical extremes of acceleration, temperature, and radiation, are
vulnerable to biological and chemical weapons, and require rest, food, breathable air, and drinkable
water. Machines are expendable; their loss does not cause emotional pain or political backlash. Humans
are expensive, and their replacement by robots is expected to yield cost savings.
While today’s relatively sparse use of drones, in undefended airspace, to target irregular forces can be
carried out by remote control, large-scale use of robotic weapons to attack modern military forces would
require greater autonomy, due to the burdens and vulnerabilities of communications links, the need for
stealth, and the sheer numbers of robots likely to be involved. The US Navy is particularly interested in
autonomy for undersea systems, where communications are especially problematic. Civilians are sparse
on the high seas and absent on submarines, casting doubt on the relevance of humanitarian law. As the
Navy contemplates future conflict with a peer competitor, it projects drone-versus-drone warfare in the
skies above and waters below, and the use of sea-based drones to attack targets inland as well.
In a cold war, small robots could be used for covert infiltration, surveillance, sabotage, or assassination . In
an open attack, they could find ways of getting into underground bunkers or attacking bases and ships in
swarms. Because robots can be sent on one-way missions, they are potential enablers of aggression or
preemption. Because they can be more precise and less destructive than nuclear weapons, they may be
more likely to be used. In fact, the US Air Force’s Long Range Strike Bomber is planned to be both
nuclear-capable and potentially unmanned, which would almost certainly mean autonomous.
There can be no real game-changers in the nuclear stalemate. Yet the new wave of robotics and artificial
intelligence-enabled systems threatens to drive a new strategic competition between the United States
and other major powers—and lesser powers, too. Unlike the specialized technologies of high-
performance military systems at the end of the Cold War, robotics, information technology, and even
advanced sensors are today globally available, driven as much by civilian as military uses. An
autonomous weapons arms race would be global in scope, as the drone race already is.
Since robots are regarded as expendable, they may be risked in provocative adventures. Recently, China
has warned that if Japan makes good on threats to shoot down Chinese drones that approach disputed
islands, it could be regarded as an act of war. Similarly, forward-basing of missile interceptors (Lewis and
Postol, 2010) or other strategic weapons on unmanned platforms would risk misinterpretation as a signal
of imminent attack, and could invite preemption.
Engineering the stability of a robot confrontation would be a wickedly hard problem even for a single team
working together in trust and cooperation, let alone hostile teams of competing and imperfectly
coordinated sub-teams. Complex, interacting systems-of-systems are prone to sudden unexpected
behavior and breakdowns, such as the May 6, 2010 stock market crash caused by interacting exchanges
with slightly different rules (Nanex, 2010). Even assuming that limiting escalation would be a design
objective, avoiding defeat by preemption would be an imperative, and this implies a constant tuning to the
edge of instability. The history of the Cold War contains many well-known examples in which military
response was interrupted by the judgment of human beings. But when tactical decisions are made with
inhuman speed, the potential for events to spiral out of control is obvious.
The way out
Given the military significance of autonomous weapons, substantial pressure from civil society will be
needed before the major powers will seriously consider accepting hard limits, let alone prohibition . The
goal is as radical as, and no less necessary than, the control and abolition of nuclear weapons.
The principle of humanity is an old concept in the law of war. It is often cited as forbidding the infliction of
needless suffering, but at its deepest level it is a demand that even in conflict, people should not lose
sight of their shared humanity. There is something inhumane about allowing technology to decide the fate
of human lives, whether through individual targeting decisions or through a conflagration initiated by the
unexpected interactions of machines. The recognition of this is already deeply rooted. A scientific poll
(Carpenter, 2013) found that Americans opposed to autonomous weapons outnumbered supporters two
to one, in contrast to an equally strong consensus in the United States supporting the use of drones. The
rest of the world leans heavily against the drone strikes (Pew Research Center, 2012), making it seem
likely that global public opinion will be strongly against autonomous weapons, both on humanitarian
grounds and out of concern for the dangers of a new arms race.
In the diplomatic discussions now under way, opponents of autonomous weapons should emphasize a
well-established principle of i nternational h umanitarian l aw. Seeking to resolve a diplomatic impasse at
the Hague Conference in 1899, Russian diplomat Friedrich Martens proposed that for issues not yet
formally resolved, conduct in war was still subject to “principles of international law derived from
established custom, from the principles of humanity, and from the dictates of public conscience.” Known
as the Martens Clause, it reappeared in the second Hague Convention (1907), the Tehran Conference on
Human Rights (1968), and the Geneva Convention additional protocols (1977). It has been invoked as the
source of authority for retroactive liability in war crimes and for preemptive bans on inhumane weapons,
implying that a strong public consensus has legal force in anticipation of an explicit law (Meron, 2000).
Autonomous weapons are a threat to global peace and therefore a matter of concern under the UN
Charter. They are contrary to established custom, principles of humanity, and dictates of public
conscience, and so should be considered as preemptively banned by the Martens Clause. These
considerations establish the legal basis for formal international action to prohibit machine decision in the
use of force. But for such action to occur, global civil society will need to present major-power
governments with an irresistible demand: Stop killer robots.

Plan key to prevent China drone war – causes miscalculation

Kreps and Zenko 14 (SARAH KREPS is Stanton Nuclear Security Fellow at the Council on Foreign
Relations and Assistant Professor of Government at Cornell University. MICAH ZENKO is Douglas Dillon
Fellow in the Center for Preventive Action at the Council on Foreign Relations., March/April, "The Next
Drone Wars", www.foreignaffairs.com/articles/140746/sarah-kreps-and-micah-zenko/the-next-drone-
wars)

Nearly seven decades later, Arnold’s prophecy is slowly being realized: armed drones are starting to rule
the skies. So far, the United States has had a relative monopoly over the use of such drones, but it cannot
count on maintaining that for much longer. Other states are quickly catching up. And although these new
weapons will not transform the international system as fundamentally as did the proliferation of nuclear
weapons and ballistic missiles, they could still be used in ways that are highly destabilizing and
deadly.
Countries will not be deterred from launching drone attacks simply because an adversary has drones in
its arsenal, too. If anything, the inherent advantages of drones -- most of all, not placing pilots or ground
forces at risk of being killed or captured -- have lowered the threshold for the use of force. Spurred by
the United States’ example , other countries are likely to threaten or conduct drone strikes in ways
that are harmful to U.S. interests, whether by provoking regional adversaries or targeting domestic
enemies.
Fortunately for the United States, it still has the ability to shape how and whether the use of
drones will spread and whether these threatening scenarios will come to pass . Countries adopt
new military capabilities based on how other states have -- or have not -- already used them and on
their perceived effectiveness. Therefore, as other countries develop their own drone technology, they
could follow Washington’s lead.
In 2004, only 41 states had drones of any kind. By 2011, that number had reached 76.
John Brennan, director of the CIA and chief architect of the Obama administration’s drone policy,
acknowledged as much in a speech in April 2012: “If we want other nations to use these technologies
responsibly, we must use them responsibly.” Yet so far, the Obama administration has ignored its own
advice, failing to develop a comprehensive strategy to limit the proliferation of armed drones and promote
their responsible use. The longer the United States delays, the less influence it will have to shape
the rules of the game. Without U.S. leadership, it will be extremely difficult to get an international
coalition to agree on a credible arrangement governing the use of armed drones.
Such an arrangement would not necessarily require new treaties or international laws; rather, it would
necessitate a more broadly accepted understanding of which existing laws apply and when and a
faithful and transparent adherence to them. It would also require updating the multilateral regime that
was originally designed to prevent the proliferation of nuclear weapons and their delivery systems. Taken
together, these measures would help minimize the spread of the most capable and lethal drones to
countries that are the most conflict-prone and increase the likelihood that emerging drone powers would
adopt policies that reduce the prospects for violent confrontations .
MOVING TARGET
In a speech last November, Thomas Lawson, Canada’s chief of the defense staff, equated missiles fired
from a drone with those fired from a piloted aircraft, because they both reach their target as intended. This
view -- that drones represent not a paradigm shift but just a different way for states to do what they have
done for decades -- has become widespread. As Norton Schwartz, then chief of staff of the U.S. Air
Force, said in May 2012, “If it is [a legitimate target], then I would argue that the manner in which you
engage that target, whether it be close combat or remotely, is not a terribly relevant question.” But that
view ignores how drones create a particular moral hazard by keeping pilots away from danger. Because
the costs of launching deadly strikes with drones are lower than with piloted aircraft, civilian officials are
more willing to authorize them.
Compare the relative caution with which the Clinton administration approached al Qaeda with the steady
spike in the use of drones against the group since 9/11. In the 1990s, the U.S. military presented the
White House with a number of plans to kill Osama bin Laden, including using long-range bombers, AC-
130 gunships, U.S. special operations forces, and non-Taliban tribal groups. But the Clinton
administration reasoned that they all posed too many risks to U.S. personnel, noncombatants, and
diplomatic relations with neighboring states. Without the availability of armed drone technology, in August
1998, Washington resorted to two very limited strikes, firing some 70 cruise missiles at a training camp in
Afghanistan and some 13 cruise missiles at a pharmaceutical factory in Sudan (none of which killed any
al Qaeda leaders).
Presidents George W. Bush and Barack Obama, by contrast, have shown far less restraint in their use of
violent force against suspected members of al Qaeda and other groups, sending armed drones to launch
strikes in Afghanistan, Iraq, Libya, Pakistan, the Philippines, Somalia, and Yemen. Beyond reducing the
risk to pilots, drones offer other attractive benefits. Predator and Reaper drones can now hover over a
target for up to 14 hours without refueling. Since armed drones attach missiles to a surveillance platform,
they offer an unmatched responsiveness when time-sensitive targets appear. Moreover, drones can
detect when noncombatants enter the blast radius, enabling drone-fired missiles to be diverted at the last
moment to avoid civilian casualties. The general public has also recognized these benefits: a Gallup poll
conducted last March found that roughly two-thirds of Americans approved of drone strikes on suspected
terrorists abroad, unless the target was a U.S. citizen.
RISE OF THE MACHINES
Understanding just how many countries currently maintain their own drones is difficult, since these
programs are invariably shrouded in secrecy and misinformation. Some countries hide the existence of
their drones in order to maintain a surprise capability; others, hoping to raise their prestige, boast about
drones that are not yet operational. To date, only the United States, Israel, and the United Kingdom are
believed to have used armed drones.
The U.S. drone program has the greatest reach. Since 2008, the United States has conducted more than
1,000 drone strikes in Afghanistan. From 2008 to 2012, the United States conducted 48 drone strikes in
Iraq; in 2011, it launched at least 145 drone strikes in Libya. The use of armed drones in more traditional
conflicts has been far less controversial, even if it is more prevalent, than their use off the battlefield.
Nonetheless, Washington has conducted almost 400 drones strikes in Pakistan, over 100 in Yemen,
around 18 in Somalia, and at least one (in 2006) in the Philippines.
For too long, using drones has seemed to be an easy way to satisfy the desire for absolute security.
Israel and the United Kingdom, meanwhile, have also deployed armed drones, although in far smaller
numbers. As of July 2013, the British military had launched 299 drone strikes in Afghanistan. Israeli
drones conducted an estimated 42 strike missions in the 2008–9 Gaza conflict, according to a joint
investigation by Israeli and Palestinian human rights organizations, and Israeli drones were also used to
target suspected terrorists in the Sinai Peninsula in August 2013, with the consent of the Egyptian
government.
Although the number of drone-equipped states is currently small, it will grow as other countries play
catch-up. In 2004, only 41 states had drones of any kind, armed or unarmed. But by 2011, that number
had reached 76, according to the last reliable public estimate by the U.S. Government Accountability
Office. According to a 2005 report by the Teal Group, an aerospace and defense industry consulting firm,
it was projected that the United States would account for 90 percent of all drone expenditures worldwide
over the coming decade; according to 2013 projections, that figure stood at 64 percent. For now, in
addition to Israel and the United Kingdom, China and Iran appear to be the only other countries with
operationally deployed armed drones (based on the evidence of public demonstrations, such as military
parades and air shows). China has been showing the media various drones for half a decade, and it now
spends so much on drones that its drone budget will equal the United States’ by 2020. Iran has revealed
a drone that it claims has a range of 2,000 kilometers, which would cover much of the Middle East.
Still other countries are catching up. India’s government has reported that it will soon equip its existing
drones with precision-guided munitions and hopes to mass-produce others to conduct cross-border
attacks on suspected terrorists. Pakistan, not to be outdone by its rival, has declared that it will develop
armed drones on its own or with China’s help in order to target the Taliban and al Qaeda in its lawless
tribal areas. Turkey currently has about 24 drones in use or development, including what Ankara hopes
will be an armed drone equivalent of a Reaper (last year it was thwarted in its efforts to buy armed drones
from the United States). Meanwhile, Australia, Japan, and Singapore have developed unarmed
surveillance drones that could be used for more military purposes -- some of them in highly volatile
regions, such as in the area of the disputed islands known as the Senkaku in Japan and the Diaoyu in
China.
LIMITED ENGAGEMENT
Given the intrinsic advantages of armed drones over conventional airpower, it is surprising that more
countries have not acquired or used them already. But a closer look at the costs of drone warfare makes
it clear why. First, using drones is still risky. They might lower the threshold for the use of force, but they
do not eliminate it altogether. One reason some countries that have armed drones, such as China
and Iran, have not yet used them is that they are not involved in major international conflicts that
would justify their deployment. If either China or Iran considered starting a militarized dispute,
however, the availability of drones could push its leaders to escalate .
Drone technology is also more complex than it may appear. There is a qualitative difference between the
rudimentary unmanned aircraft used as far back as World War II -- and even the unarmed Predators that
flew in the Balkans in the mid-1990s -- and the armed drones that the United States deploys over
Afghanistan, Pakistan, and elsewhere today. These advanced drones require far more than a pilot at a
base in the Horn of Africa or the Nevada desert to make them effective. They need actionable
intelligence, sophisticated communications, access to satellite bandwidth, and complex systems
engineering -- all assets presently beyond the reach of most states.
It is no coincidence that the countries that possess advanced drones have also already mastered other
complex military technologies, such as nuclear weapons and satellite communications. But even some
states that have developed such technologies are having difficulties with drones. Russia, for example, has
seen its drone efforts derailed by sharp reductions in aerospace funding and a long-declining aerospace
industry. France and Italy have also been unable to pursue their own programs and have had to settle for
an unarmed variant of the U.S.-made Reaper, which France has been using for reconnaissance missions
in Mali.
A third explanation for the slow spread of drones is diplomatic. Conducting drone strikes in foreign
countries, as the United States does, requires bilateral relations that are good enough to get the host
nations to grant basing and overflight rights. Drone strikes in Somalia and Yemen require the use of
airfields in Djibouti, Ethiopia, Saudi Arabia, and the Seychelles, which the United States has secured with
aid (both overt and covert) and security commitments. Few other countries have such reliable access to
foreign bases. And the oceans do not offer an alternative. The United States should be able to conduct
drone strikes from its ships within five years, but it will take other countries decades to have that
capability.
Domestic opposition to the development or use of drones creates additional problems in other states,
even some with the technological capacity to build and field them. Officials in Washington take relatively
little flak for supporting the U.S. targeted-killing program, but the politics of drones are considerably
different in other countries. In Germany, for example, politicians who advocate drones have faced harsh
criticism from a public worried about compromising Germany’s long-standing defense-only national
security policies. Developing lethal drone capabilities, many German critics contend, could increase the
prospects of military interventions more generally.
Defense budgets are a final factor. The worldwide civilian and military drone market, which researchers
predict will reach $8.4 billion by 2018, accounts for only a fraction of global defense spending, which
estimates say will hit $1.9 trillion by the end of 2017. But drones’ costs are still prohibitive at a time when
austerity dominates military spending decisions in most countries. Unless they discover unforeseen
threats that require the use of armed drones, most states will not reallocate precious defense dollars to
unmanned systems anytime soon.
HOSTILE ACTS
These obstacles will likely keep the number of drone powers low, but even a few more states fielding a
few armed drones could seriously threaten international security. Drones have already been used in
ways that go beyond their originally intended applications. For example, the U.S. Customs and Border
Protection at first deployed drones to watch the Canadian and Mexican borders, but it has since
repurposed them so that other agencies could use them for surveillance missions, and they have, for
nearly 700. And drones themselves have created new and unforeseen missions: actual human forces
must protect and recover downed drones, for example. It would therefore be myopic and misguided to
assume that other states will use drones in the future only in the way the United States has.
The mere possession of drones will not make traditional interstate warfare, which is already relatively rare
these days, more likely. Having armed drones, given their limitations, is unlikely to convince states to go
to war, attempt to capture or control foreign territory, or try to remove a foreign leader from power. But
armed drones could still increase the possibility of more limited military conflicts, especially in disputed
areas where the slightest provocation could lead to strife.
In such settings, drones could encourage countries to act in ways that they might not if they had only
manned aircraft. China already flies drones over the Senkaku/Diaoyu Islands, which has prompted the
Japanese Defense Ministry to develop drone-specific rules of engagement. Japanese officials say they
would be less hesitant to shoot down Chinese drones than they would manned Chinese aircraft. A similar
dynamic can be seen in practice in the Persian Gulf, where Iran has fired on U.S. drones while carefully
avoiding attacking manned American planes. In November 2012, for example, an Iranian fighter jet fired
on a Predator drone that it claimed had entered Iran’s airspace (the U.S. military contended that the drone
was over international waters). Martin Dempsey, chairman of the Joint Chiefs of Staff, called Iran’s
behavior “clearly a hostile act against our assets” necessitating “a measured response,” which included
using additional, manned U.S. military assets to protect the drones and the information they collect.
The fact that drones heighten the potential for miscalculation and military escalation is especially
worrisome in maritime disputes. The CIA has identified 430 bilateral maritime boundaries, most of
which are not defined by formal agreements between states. In the East China and South China seas,
nationalist sentiments and the discovery of untapped oil and gas reserves have already made
armed conflict over disputed borders among the littoral states more likely. And that prospect would
only increase if these countries deployed drones in the area, which they would likely do more
aggressively than if they were deploying piloted aircraft.

That’s goes nuclear

Goldstein 13
AVERY GOLDSTEIN is David M. Knott Professor of Global Politics and International Relations and
Director of the Center for the Study of Contemporary China at the University of Pennsylvania, Foreign
Affairs, September/October 2013, "China’s Real and Present Danger",
http://www.foreignaffairs.com/articles/139651/avery-goldstein/chinas-real-and-present-danger

Washington has also been vague about what it sees as its vital interests in the region. The United States
hedges on the question of whether Taiwan falls under a U.S. security umbrella. And the U nited States’
stance on the maritime disputes involving China and its neighbors is somewhat confusing: Washington
has remained neutral on the rival sovereignty claims and insisted that the disputes be resolved peacefully
but has also reaffirmed its commitment to stand by its allies in the event that a conflict erupts. Such
Chinese and U.S. ambiguity about the “redlines” that cannot be crossed without risking conflict
increases the chances that either side could take steps that it believes are safe but that turn out to
be unexpectedly provocative.
MORE DANGEROUS THAN THE COLD WAR?
Uncertainty about what could lead either Beijing or Washington to risk war makes a crisis far more
likely, since neither side knows when , where, or just how hard it can push without the other side
pushing back . This situation bears some resemblance to that of the early Cold War, when it took a
number of serious crises for the two sides to feel each other out and learn the rules of the road. But
today’s environment might be even more dangerous .
The balance of nuclear and conventional military power between China and the U nited States, for
example, is much more lopsided than the one that existed between the Soviet Union and the United
States. Should Beijing and Washington find themselves in a conflict, the huge U.S. advantage in
conventional forces would increase the temptation for Washington to threaten to or actually use
force . Recognizing the temptation facing Washington, Beijing might in turn feel pressure to use its
conventional forces before they are destroyed. Although China could not reverse the military imbalance, it
might believe that quickly imposing high costs on the United States would be the best way to get it to back
off.
The fact that both sides have nuclear arsenals would help keep the situation in check, because both sides
would want to avoid actions that would invite nuclear retaliation. Indeed, if only nuclear considerations
mattered, U.S.-Chinese crises would be very stable and not worth worrying about too much. But the two
sides’ conventional forces complicate matters and undermine the stability provided by nuclear
deterrence. During a crisis, either side might believe that using its conventional forces would confer
bargaining leverage, manipulating the other side’s fear of escalation through what the economist Thomas
Schelling calls a “competition in risk-taking.” In a crisis, China or the United States might believe that it
valued what was at stake more than the other and would therefore be willing to tolerate a higher level of
risk. But because using conventional forces would be only the first step in an unpredictable process
subject to misperception, missteps, and miscalculation, there is no guarantee that brinkmanship
would end before it led to an unanticipated nuclear catastrophe.
China, moreover, apparently believes that nuclear deterrence opens the door to the safe use of
conventional force. Since both countries would fear a potential nuclear exchange, the Chinese seem to
think that neither they nor the Americans would allow a military conflict to escalate too far. Soviet leaders,
by contrast, indicated that they would use whatever military means were necessary if war came -- which
is one reason why war never came. In addition, China’s official “no first use” nuclear policy, which guides
the Chinese military’s preparation and training for conflict, might reinforce Beijing’s confidence that limited
war with the United States would not mean courting nuclear escalation. As a result of its beliefs, Beijing
might be less cautious about taking steps that would risk triggering a crisis. And if a crisis
ensued, China might also be less cautious about firing the first shot.
Such beliefs are particularly worrisome given recent developments in technology that have dramatically
improved the precision and effectiveness of conventional military capabilities. Their lethality might
confer a dramatic advantage to the side that attacks first , something that was generally not true of
conventional military operations in the main European theater of U.S.-Soviet confrontation. Moreover,
because the sophisticated computer and satellite systems that guide contemporary weapons are highly
vulnerable to conventional military strikes or cyberattacks, today’s more precise weapons might be
effective only if they are used before an adversary has struck or adopted countermeasures. If peacetime
restraint were to give way to a search for advantage in a crisis, neither China nor the United States could
be confident about the durability of the systems managing its advanced conventional weapons.
Under such circumstances, both Beijing and Washington would have incentives to initiate an
attack . China would feel particularly strong pressure, since its advanced conventional weapons are more
fully dependent on vulnerable computer networks, fixed radar sites, and satellites. The effectiveness of
U.S. advanced forces is less dependent on these most vulnerable systems. The advantage held by the
United States, however, might increase its temptation to strike first, especially against China’s satellites,
since it would be able to cope with Chinese retaliation in kind.
 solvency
Solvency

Only restricting self-defense prevents collapse of norms

Beau Barnes, J.D., Boston University School of Law, Spring 20 12, REAUTHORIZING THE “WAR ON
TERROR”: THE LEGAL AND POLICY IMPLICATIONS OF THE AUMF’S COMING OBSOLESCENCE,
https://www.jagcnet.army.mil/DOCLIBS/MILITARYLAWREVIEW.NSF/20a66345129fe3d885256e5b00571
830/b7396120928e9d5e85257a700042abb5/$FILE/By%20Beau%20D.%20Barnes.pdf

Therefore, the more likely result is that the Executive Branch, grappling with the absence of explicit legal
authority for a critical policy, would need to make increasingly strained legal arguments to support its
actions.121 Thus, the Obama Administration will soon be forced to rationalize ongoing operations under
existing legal authorities, which, I argue below, will have significant harmful consequences for the United
States. Indeed, the administration faces a Catch-22—its efforts to destroy Al Qaeda as a functioning
organization will lead directly to the vitiation of the AUMF. The administration is “starting with a result and
finding the legal and policy justifications for it,” which often leads to poor policy formulation.122 Potential
legal rationales would perforce rest on exceedingly strained legal arguments based on the AUMF itself,
the President’s Commander in Chief powers, or the international law of selfdefense.123 Besides the
inherent damage to U.S. credibility attendant to unconvincing legal rationales, each alternative option
would prove legally fragile, destabilizing to the international political order , or both.
1. Effect on Domestic Law and Policy
Congress’s failure to reauthorize military force would lead to bad domestic law and even worse national
security policy. First, a legal rationale based on the AUMF itself will increasingly be difficult to sustain.
Fewer and fewer terrorists will have any plausible connection to the September 11 attacks or Al Qaeda,
and arguments for finding those connections are already logically attenuated. The definition of those
individuals who may lawfully be targeted and detained could be expanded incrementally from the current
definition, defining more and more groups as Al Qaeda’s “co-belligerents” and “associated forces.”124 But
this approach, apart from its obvious logical weakness, would likely be rejected by the courts at some
point.125 The policy of the United States should not be to continue to rely on the September 18, 2001,
AUMF.
Second, basing U.S. counterterrorism efforts on the President’s constitutional authority as Commander in
Chief is legally unstable, and therefore unsound national security policy, because a combination of legal
difficulties and political considerations make it unlikely that such a rationale could be sustained. This type
of strategy would likely run afoul of the courts and risk destabilizing judicial intervention,126 because the
Supreme Court has shown a willingness to step in and assert a more proactive role to strike down
excessive claims of presidential authority.127 Politically, using an overly robust theory of the Commander
in Chief’s powers to justify counterterrorism efforts would, ultimately, be difficult to sustain. President
Obama, who ran for office in large part on the promise of repudiating the excesses of the Bush
Administration, and indeed any president, would likely face political pressure to reject the claims of
executive authority made “politically toxic” by the writings of John Yoo.128 Because of the likely judicial
resistance and political difficulties, claiming increased executive authority to prosecute the armed conflict
against Al Qaeda would prove a specious and ultimately futile legal strategy. Simply put, forcing the
Supreme Court to intervene and overrule the Executive’s national security policy is anathema to good
public policy. In such a world, U.S. national security policy would lack stability—confounding cooperation
with allies and hindering negotiations with adversaries.
There are, of course, many situations where the president’s position as Commander in Chief provides
entirely uncontroversial authority for military actions against terrorists. In 1998, President Clinton ordered
cruise missile strikes against Al Qaeda-related targets in Afghanistan and Sudan in response to the
embassy bombings in Kenya and Tanzania. In 1986, President Reagan ordered air strikes against Libyan
targets after U.S. intelligence linked the bombing of a Berlin discotheque to Libyan operatives.129
Executive authority to launch these operations without congressional approval was not seriously
questioned, and no congressional approval was sought.130 To be sure, many of the targeted killing
operations carried out today fall squarely within the precedent of past practice supplied by these and
other valid exercises of presidential authority. Notwithstanding disagreement about the scope of
Congress’s and the president’s “war powers,” few would disagree with the proposition that the president
needs no authorization to act in selfdefense on behalf of the country. However, it is equally clear that not
all terrorists pose such a threat to the United States, and thus the on terror,”137 further distancing
counterterrorism operations from democratic oversight would exacerbate this problem.138 Indeed,
congressional oversight of covert operations—which, presumably, operates with full information—is
already considered insufficient by many.139 By operating entirely on a covert basis, “the Executive can
initiate more conflict than the public might otherwise [be] willing to support.”140
In a world without a valid AUMF, the United States could base its continued worldwide counterterrorism
operations on various alternative domestic legal authorities. All of these alternative bases, however, carry
with them significant costs—detrimental to U.S. security and democracy. The foreign and national security
policy of the United States should rest on “a comprehensive legal regime to support its actions, one that
[has] the blessings of Congress and to which a court would defer as the collective judgment of the
American political system about a novel set of problems.”141 Only then can the President’s efforts be
sustained and legitimate.
2. Effect on the International Law of Self-Defense
A failure to reauthorize military force would lead to significant negative consequences on the international
level as well. Denying the Executive Branch the authority to carry out military operations in the armed
conflict against Al Qaeda would force the President to find authorization elsewhere, most likely in the
international law of selfdefense—the jus ad bellum.142 Finding sufficient legal authority for the United
States’s ongoing counterterrorism operations in the international law of self-defense, however, is
problematic for several reasons. As a preliminary matter, relying on this rationale usurps Congress’s role
in regulating the contours of U.S. foreign and national security policy. If the Executive Branch can assert
“self-defense against a continuing threat” to target and detain terrorists worldwide, it will almost always be
able to find such a threat.143 Indeed, the Obama Administration’s broad understanding of the concept of
“imminence” illustrates the danger of allowing the executive to rely on a self-defense authorization
alone.144
This approach also would inevitably lead to dangerous “slippery slopes.” Once the President authorizes a
targeted killing of an individual who does not pose an imminent threat in the strict law enforcement sense
of “imminence,”145 there are few potential targets that would be off-limits to the Executive Branch. Overly
malleable concepts are not the proper bases for the consistent use of military force in a democracy.
Although the Obama Administration has disclaimed this manner of broad authority because the AUMF
“does not authorize military force against anyone the Executive labels a ‘terrorist,’”146 relying solely on
the international law of self defense would likely lead to precisely such a result.
The slippery slope problem, however, is not just limited to the United States’s military actions and the
issue of domestic control. The creation of international norms is an iterative process , one to which the
United States makes significant contributions. Because of this outsized influence, the United States
should not claim international legal rights that it is not prepared to see proliferate around the globe.
Scholars have observed that the Obama Administration’s “expansive and open-ended interpretation of the
right to self-defence threatens to destroy the prohibition on the use of armed force . . . .”147 Indeed,
“[i]f other states were to claim the broad-based authority that the United States does, to kill people
anywhere, anytime, the result would be chaos .”148
Encouraging the proliferation of an expansive law of international self-defense would not only be harmful
to U.S. national security and global stability, but it would also directly contravene the Obama
Administration’s national security policy, sapping U.S. credibility . The Administration’s National Security
Strategy emphasizes U.S. “moral leadership,” basing its approach to U.S. security in large part on
“pursu[ing] a rules-based international system that can advance our own interests by serving mutual
interests.”149 Defense Department General Counsel Jeh Johnson has argued that “[a]gainst an
unconventional enemy that observes no borders and does not play by the rules, we must guard against
aggressive interpretations of our authorities that will discredit our efforts, provoke controversy and invite
challenge.”150 Cognizant of the risk of establishing unwise international legal norms, Johnson argued
that the United States “must not make [legal authority] up to suit the moment.”151 The Obama
Administration’s global counterterrorism strategy is to “adher[e] to a stricter interpretation of the rule of law
as an essential part of the wider strategy” of “turning the page on the past [and rooting] counterterrorism
efforts within a more durable, legal foundation.”152
Widely accepted legal arguments also facilitate cooperation from U.S. allies, especially from the United
States’ European allies, who have been wary of expansive U.S. legal interpretations.153 Moreover, U.S.
strategy vis-à-vis China focuses on binding that nation to international norms as it gains power in East
Asia.154 The United States is an international “standard-bearer” that “sets norms that are mimicked by
others,”155 and the Obama Administration acknowledges that its drone strikes act in a quasi-precedential
fashion.156 Risking the obsolescence of the AUMF would force the United States into an “aggressive
interpretation” of international legal authority,157 not just discrediting its own rationale, but facilitating that
rationale’s destabilizing adoption by nations around the world.158

Congress is key
Mark David Maxwell, Colonel, Judge Advocate with the U.S. Army, Winter 20 12, TARGETED KILLING,
THE LAW, AND TERRORISTS, Joint Force Quarterly, http://www.ndu.edu/press/targeted-killing.html

In the wake of the attacks by al Qaeda on September 11, 2001, an analogous phenomenon of feeling
safe has occurred in a recent U.S. national security policy: America’s explicit use of targeted killings to
eliminate terrorists, under the legal doctrines of selfdefense and the law of war. Legal scholars define
targeted killing as the use of lethal force by a state4 or its agents with the intent, premeditation, and
deliberation to kill individually selected persons who are not in the physical custody of those targeting
them.5 In layman’s terms, targeted killing is used by the United States to eliminate individuals it views as
a threat.6 Targeted killings, for better or for worse, have become “a defining doctrine of American
strategic policy.”7 Although many U.S. Presidents have reserved the right to use targeted killings in
unique circumstances, making this option a formal part of American foreign policy incurs risks that,
unless adroitly controlled and defined in concert with Congress , could drive our practices in the use
of force in a direction that is not wise for the long-term health of the rule of law.
This article traces the history of targeted killing from a U.S. perspective. It next explains how terrorism has
traditionally been handled as a domestic law enforcement action within the United States and why this
departure in policy to handle terrorists like al Qaeda under the law of war—that is, declaring war against a
terrorist organization—is novel. While this policy is not an ill-conceived course of action given the global
nature of al Qaeda, there are practical limitations on how this war against terrorism can be conducted
under the orders of the President. Within the authority to target individuals who are terrorists, there are
two facets of Presidential power that the United States must grapple with: first, how narrow and tailored
the President’s authority should be when ordering a targeted killing under the rubric of self-defense; and
second, whether the President must adhere to concepts within the law of war, specifically the targeting of
individuals who do not don a uniform. The gatekeeper of these Presidential powers and the prevention of
their overreach is Congress . The Constitution demands nothing less, but thus far, Congress’s silence is
deafening.
History of Targeted Killing During the Cold War, the United States used covert operations to target certain political leaders with deadly force.8 These covert operations, such as assassination plots against Fidel Castro of Cuba and Ngo Dinh Diem of South Vietnam,
came to light in the waning days of the Richard Nixon administration in 1974. In response to the public outrage at this tactic, the Senate created a select committee in 1975, chaired by Senator Frank Church of Idaho, to “Study Government Operations with Respect
to Intelligence Activities.”9 This committee, which took the name of its chairman, harshly condemned such targeting, which is referred to in the report as assassination: “We condemn assassination and reject it as an instrument of American policy.”10 In response to
the Church Committee’s findings, President Gerald R. Ford issued an Executive order in 1976 prohibiting assassinations: “No employee of the United States Government shall engage in, or conspire to engage in political assassination.”11 The order, which is still in
force today as Executive Order 12333, “was issued primarily to preempt pending congressional legislation banning political assassination.”12 President Ford did not want legislation that would impinge upon his unilateral ability as Commander in Chief to decide on
the measures that were necessary for national security. 13 In the end, no legislation on assassinations was passed; national security remained under the President’s purview. Congress did mandate, however, that the President submit findings to select Members of
Congress before a covert operation commences or in a timely fashion afterward.14 This requirement remains to this day. Targeted killings have again come to center stage with the Barack Obama administration’s extraordinary step of acknowledging the targeting of
the radical Muslim cleric Anwar al-Awlaki, a U.S. citizen who lived in Yemen and was a member of an Islamic terrorist organization, al Qaeda in the Arabian Peninsula.15 Al-Awlaki played a significant role in an attack conducted by Umar Farouk Abdulmutallab, the
Nigerian Muslim who attempted to blow up a Northwest Airlines flight bound for Detroit on Christmas Day 2009.16 According to U.S. officials, al-Awlaki was no longer merely encouraging terrorist activities against the United States; he was “acting for or on behalf of
al-Qaeda in the Arabian Peninsula . . . and providing financial, material or technological support for . . . acts of terrorism.”17 Al-Awlaki’s involvement in these activities, according to the United States, made him a belligerent and therefore a legitimate target. The
context of the fierce debates in the 1970s is different from the al-Awlaki debate. The targeted killing of an individual for a political purpose, as investigated by the Church Committee, was the use of lethal force during peacetime, not during an armed conflict. During
armed conflict, the use of targeted killing is quite expansive.18 But in peacetime, the use of any lethal force is highly governed and limited by both domestic law and international legal norms. The presumption is that, in peacetime, all use of force by the state,
especially lethal force, must be necessary. The Law Enforcement Paradigm Before 9/11, the United States treated terrorists under the law enforcement paradigm—that is, as suspected criminals.19 This meant that a terrorist was protected from lethal force so long
as his or her conduct did not require the state to respond to a threat or the indication of one. The law enforcement paradigm assumes that the preference is not to use lethal force but rather to arrest the terrorist and then to investigate and try him before a court of
law.20 The presumption during peacetime is that the use of lethal force by a state is not justified unless necessary. Necessity assumes that “only the amount of force required to meet the threat and restore the status quo ante may be employed against [the] source
of the threat, thereby limiting the force that may be lawfully applied by the state actor.”21 The taking of life in peacetime is only justified “when lesser means for reducing the threat were ineffective.”22 Under both domestic and international law, the civilian population
has the right to be free from arbitrary deprivation of life. Geoff Corn makes this point by highlighting that a law enforcement officer could not use deadly force “against suspected criminals based solely on a determination an individual was a member of a criminal
group.”23 Under the law enforcement paradigm, “a country cannot target any individual in its own territory unless there is no other way to avert a great danger.”24 It is the individual’s conduct at the time of the threat that gives the state the right to respond with lethal
force. The state’s responding force must be reasonable given the situation known at the time. This reasonableness standard is a “commonsense evaluation of what an objectively reasonable officer might have done in the same circumstances.”25 The U.S. Supreme
Court has opined that this reasonableness is subjective: “[t]he calculus of reasonableness must embody allowances for the fact that police officers often are forced to make split-second judgments . . . about the amount of force that is necessary in a particular
situation.”26 The law enforcement paradigm attempts to “minimize the use of lethal force to the extent feasible in the circumstances.”27 This approach is the starting point for many commentators when discussing targeted killing: “It may be legal for law enforcement
personnel to shoot to kill based on the imminence of the threat, but the goal of the operation, from its inception, should not be to kill.”28 The presumption is that intentional killing by the state is unlawful unless it is necessary for self-defense or defense of others.29
Like the soldier who acts under the authority of self-defense, if one acts reasonably based on the nature of the threat, the action is justified and legal. What the law enforcement paradigm never contemplates is a terrorist who works outside the state and cannot be
arrested. These terrorists hide in areas of the world where law enforcement is weak or nonexistent. The terrorists behind 9/11 were lethal and lived in ungovernable areas; these factors compelled the United States to rethink its law enforcement paradigm. The Law
of War Paradigm The damage wrought by the 9/11 terrorists gave President George W. Bush the political capital to ask Congress for authorization to go to war with these architects of terror, namely al Qaeda. Seven days later, Congress gave the President the
Authorization for the Use of Military Force (AUMF) against those “nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or
persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”30 For the first time in modern U.S. history, the country was engaged in an armed conflict with members of an organization, al
Qaeda, versus a state. The legal justification to use force, which includes targeted killings, against al Qaeda, the Taliban, and associated forces is twofold: self-defense and the law of war.31 In armed conflict, the rules governing when an individual can be killed are
starkly different than in peacetime. The law enforcement paradigm does not apply in armed conflict. Rather, designated terrorists may be targeted and killed because of their status as enemy belligerents. That status is determined solely by the President under the
AUMF. Unlike the law enforcement paradigm, the law of war requires neither a certain conduct nor an analysis of the reasonable amount of force to engage belligerents. In armed conflict, it is wholly permissible to inflict “death on enemy personnel irrespective of the
actual risk they present.”32 Killing enemy belligerents is legal unless specifically prohibited—for example, enemy personnel out of combat like the wounded, the sick, or the shipwrecked.33 Armed conflict also negates the law enforcement presumption that lethal
force against an individual is justified only when necessary. If an individual is an enemy, then “soldiers are not constrained by the law of war from applying the full range of lawful weapons.”34 Now the soldier is told by the state that an enemy is hostile and he may
engage that individual without any consideration of the threat currently posed. The enemy is declared hostile; the enemy is now targetable. Anticipatory Self-defense

This paradigm shift is novel for the United States. The President’s authority to order targeted killings is
clear under domestic law; it stems from the AUMF. Legal ambiguity of the U.S. authority to order
targeted killings emerges, however, when it is required to interpret international legal norms like self-
defense and the law of war. The United States has been a historic champion of these international norms,
but now they are hampering its desires to target and kill terrorists.
Skeptics of targeted killing admit that “[t]he decision to target specific individuals with lethal force after September 11 was neither unprecedented nor surprising.”35 Mary Ellen
O’Connell has conceded, for example, that targeted killing against enemy combatants in Afghanistan is not an issue because “[t]he United States is currently engaged in an
armed conflict” there.36 But when the United States targets individuals outside a zone of conflict, as it did with alAwlaki in Yemen,37 it runs into turbulence because a state of
war does not exist between the United States and Yemen.38 A formidable fault line that is emerging between the Obama administration’s position and many academics,
international organizations,39 and even some foreign governments40 is where these targeted killings can be conducted.41
According to the U.S. critics, if armed conflict between the states is not present at a location, then the law of war is never triggered, and the state reverts to a peacetime
paradigm. In other words, the targeted individual cannot be killed merely because of his or her status as an enemy, since there is no armed conflict. Instead, the United States,
as in peacetime, must look to the threat the individual possesses at the time of the targeting. There is a profound shift of the burden upon the state: the presumption now is that
the targeted killing must be necessary. When, for example, the United States targeted and killed six al Qaeda members in Yemen in 2002, the international reaction was
extremely negative: the strike constituted “a clear case of extrajudicial killing.”42
The Obama administration, like its predecessor, disagrees. Its legal justification for targeted killings outside a current zone of armed conflict is anticipatory self-defense. The
administration cites the inherent and unilateral right every nation has to engage in anticipatory self-defense. This right is codified in the United Nations charter43 and is also part
of the U.S. interpretation of customary international law stemming from the Caroline case in 1837. A British warship entered U.S. territory and destroyed an American
steamboat, the Caroline. In response, U.S. Secretary of State Daniel Webster articulated the lasting acid test for anticipatory self-defense: “[N]ecessity of self defense [must be]
instant, overwhelming, leaving no choice of means and no moment for deliberation . . . [and] the necessity of self defense, must be limited by that necessity and kept clearly
within it.”44
A state can act under the guise of anticipatory self-defense. This truism, however, leaves domestic policymakers to struggle with two critical quandaries: first, the factual
predicate required by the state to invoke anticipatory self-defense, on the one hand; and second, the protections the state’s soldiers possess when they act under this authority,
on the other. As to the first issue, there is simply no guidance from Congress to the President; the threshold for triggering anticipatory self-defense is ad hoc. As to the second
issue, under the law of war, a soldier who kills an enemy has immunity for these precapture or warlike acts.45 This “combatant immunity” attaches only when the law of war has
been triggered. Does combatant immunity attach when the stated legal authority is self-defense? There is no clear answer.
The administration is blurring the contours of the right of the state to act in Yemen under self-defense and the law of
war protections afforded its soldiers when so acting. Therefore, what protections do U.S. Airmen enjoy when operating the drone that killed an individual in Yemen,
Somalia, or Libya?
If they are indicted by a Spanish court for murder, what is the defense? Under the law of war, it is
combatant immunity. But if the law of war is not triggered because the killing occurred outside the zone of
armed conflict, the policy could expose Airmen to prosecution for murder. In order to alleviate both of
these quandaries, Congress must step in with legislative guidance . Congress has the constitutional
obligation to fund and oversee military operations.46 The goal of congressional action must not be to
thwart the President from protecting the United States from the dangers of a very hostile world. As the
debates of the Church Committee demonstrated, however, the President’s unfettered authority in the
realm of national security is a cause for concern. Clarification is required because the AUMF gave the
President a blank check to use targeted killing under domestic law, but it never set parameters on the
President’s authority when international legal norms intersect and potentially conflict with measures
stemming from domestic law.

But there’s no uniqueness for their DA’s – TK operational policy is already

restricted more than the plan mandates
Robert Chesney 14, law prof at UT, “Postwar”, http://harvardnsj.org/wp-
content/uploads/2014/01/Chesney-Final.pdf

Would shifting to a postwar framework impact the status quo regarding the use of lethal force more so
than it does detention? Surprisingly, no .
That some amount of targeting authority would remain even under the postwar rubric is not in doubt. Jeh
Johnson said as much, after all, when he indicated that military options would remain available in the
postwar period for “continuing and imminent threats.” 35 But that is not the interesting question. The
interesting question is whether postwar targeting authority would be narrower than the scope of authority
currently asserted by the government even under the armed-conflict model, such that drone strikes—and
other exercises of lethal force—in the postwar world would have to be eliminated or at least curtailed
substantially as compared to the status quo.
A. Policy Constraints on Attacks Outside the Hot Battlefield
It is tempting to assume that the answer must be yes, that the postwar model surely would be a narrower
affair—a much narrower affair —than the status quo when it comes to lethal force. On close inspection,
however, that proves not to be the case. Why? For two seemingly contradictory reasons. First, the
government for reasons of policy already embraces an approach that is more restrictive than the
armed-conflict model arguably would require. Second, the legal framework the government most
likely would apply in the absence of the armed-conflict model is considerably less restrictive than one
might expect. Indeed, it is the same framework that applies already as a matter of policy .

There’s also link uq – Obama’s openly called for restrictions on authority

Christopher Preble 13, vice president for Defense and Foreign Policy Studies at the Cato Institute, How
to End the War on Terrorism Properly, June 10, http://www.cato.org/publications/commentary/how-end-
war-terrorism-properly?utm_source=Cato+Institute+Emails&utm_campaign=d7856100b8-
Cato_Today&utm_medium=email&utm_term=0_395878584c-d7856100b8-
141711634&mc_cid=d7856100b8&mc_eid=719812f23e

In his speech on counterterrorism last month, President Barack Obama said something both profound
and overdue — the war underway since 2001 should end, not just factually but also legally. Outlining
his views, the president said he wanted to “refine, and ultimately repeal ,” the Authorization for Use of
Military Force ( AUMF ), the main legislative vehicle governing U.S. counterterrorism operations around
the world. He also pledged not to sign laws designed to expand this mandate further.
“The most successful counterterrorism operations involve timely intelligence collection and analysis, not
open-ended military operations involving large deployments of U.S. troops.”
But to make that goal a concrete reality, the president should have called for legislation repealing the
administration’s authority for war — sunsetting the AUMF, which provides the legal authorization for our
troops in Afghanistan, once combat operations there conclude at the end of 2014. Future counterterrorism
operations can rely on the plentiful authorities the executive branch already has, including some that have
been added since 9/11. And if this president — or any other in the future — needs greater war powers to
deal with a threat, they can return to Congress and ask for specific, limited authorities tailored to address
the future challenge.

Executive “clarification” fails

Laurie Blank, Emory International Humanitarian Law Clinic Director, Professor, 10/10/ 13, “Raid
Watching” and Trying to Discern Law from Policy, today.law.utah.edu/projects/raid-watching-and-trying-
to-discern-law-from-policy/

Trying to identify and understand the legal framework the United States believes is applicable to
counterterrorism operations abroad sometimes seems quite similar to “Fed watching,” the predictive
game of trying to figure out what the Federal Reserve is likely to do based on the hidden meaning behind
even the shortest or most cryptic of comments from the Chairman of the Federal Reserve. With whom
exactly does the United States consider itself to be in an armed conflict? Al Qaeda, certainly, but what
groups fall within that umbrella and what are associated forces? And to where does the United States
believe its authority derived from this conflict reaches?
On Saturday, U.S. Special Forces came ashore in Somalia and engaged in a firefight with militants at the
home of a senior leader of al Shabaab; it is unknown whether the target of the raid was killed. I must
admit, my initial reaction was to wonder whether official information about the raid would give us any hints
— who was the target and why was he the target? What were the rules of engagement (ROE) for the raid
(in broad strokes, because anything specific is classified, of course)? And can we make any conclusions
about whether the United States considers that its armed conflict with al Qaeda extends to Somalia or
whether it believes that al Shabaab is a party to that armed conflict or another independent armed
conflict?
The reality, however, is that this latest counterterrorism operation highlights once again the conflation of
law and policy that exemplifies the entire discourse about the United States conflict with al Qaeda and
other U.S. counterterrorism operations as well. And that using policy to discern law is a highly risky
venture .
The remarkable series of public speeches by top Obama Administration legal advisors and national
security advisors, the Department of Justice White Paper, and the May 2013 White House fact sheet on
U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the
United States and Areas of Active Hostilities all appear to offer extensive explanations of the international
legal principles governing the use of drone strikes against al-Qaeda operatives in various locations
around the globe, as well as related counterterrorism measures. In actuality, they offer an excellent
example of the conflation of law and policy and the consequences of that conflation .
Policy and strategic considerations are without a doubt an essential component of understanding
contemporary military operations and the application of international law. However, it is equally important
to distinguish between law and policy, and to recognize when one is driving analysis versus the other.
The law regarding the use of force against an individual or group outside the borders of the state relies on
one of two legal frameworks: the law of armed conflict (LOAC) and the international law of self-defense
(jus ad bellum). During armed conflict, LOAC applies and lethal force can be used as a first resort against
legitimate targets, a category that includes all members of the enemy forces (the regular military of a state
or members of an organized armed group) and civilians who are directly participating in hostilities.
Outside of armed conflict, lethal force can be used in self-defense against an individual or group who has
engaged in an armed attack – or poses an imminent threat of such an attack, where the use of force is
necessary and proportionate to repel or deter the attack or threat.
The United States has consistently blurred these two legal justifications for the use of force, regularly
stating that it has the authority to use force either as part of an ongoing armed conflict or under self-
defense, without differentiating between the two or delineating when one or the other justification applies.
From the perspective of the policymaker, the use of both justifications without further distinction surely
offers greater flexibility and potential for action in a range of circumstances. From the perspective of
careful legal analysis, however, it can prove problematic.
In effect, it is U.S. policy to eliminate “bad guys” — whether by use of lethal force or detention — who are
attacking or posing a threat to the United States or U.S. interests. Some of these “bad guys” are part of a
group with whom we are in an armed conflict (such as al Qaeda); some pose an imminent threat
irrespective of the armed conflict; some are part of a group that shares an ideology with al Qaeda or is
linked in some more comprehensive way. Drone strikes, Special Forces raids, capture — each situation
involves its own tactical plans and twists.
But do any of these specific tactical choices tell us anything in particular about whether LOAC applies to a
specific operation? Whether the United States believes it applies? Unfortunately, not really. Take
Saturday’s raid in Somalia, for example. Some would take the use of lethal force by the United States
against a member of al Shabaab in Somalia to suggest that the United States views al Shabaab as part of
the conflict with al Qaeda, or that the United States views the geographical arena of the conflict as
extending at least into Somalia. Others analyze it through the lens of self-defense, because news reports
suggest that U.S. forces sought to capture the militant leader and used deadly force in the process of
trying to effectuate that capture.
Ultimately, however, the only certain information is that the United States viewed this senior leader of al
Shabaab as a threat – but whether that threat is due to participation in an armed conflict or due to
ongoing or imminent attacks on the United States is not possible to discern. Why? Because more than
law guides the planning and execution of the mission. Rules of engagement (ROE) are based on law,
strategy and policy: the law forms the outer parameters for any action; ROE operate within that framework
to set the rules for the use of force in the circumstances of the particular military mission at hand, the
operational imperatives and national command policy.
The fact that the operation may have had capture as its goal, if feasible, does not mean that it could only
have occurred outside the framework of LOAC. Although LOAC does not include an obligation to capture
rather than kill an enemy operative — it is the law enforcement paradigm applicable outside of armed
conflict that mandates that the use of force must be a last resort — ROE during an armed conflict may
require attempt to capture for any number of reasons, including the desire to interrogate the target of the
raid for intelligence information. Likewise, the use of military personnel and the fact that the raid resulted
in a lengthy firefight does not automatically mean that armed conflict is the applicable framework — law
enforcement in the self-defense context does narrowly prescribe the use of lethal force, but that use of
force may nonetheless be robust when necessary.
“Raid-watching” — trying to predict the applicable legal framework from reports of United States strikes
and raids on targets abroad — highlights the challenges of the conflation of law and policy and the
concomitant risks of trying to sift the law out from the policy conversation . First, determining the
applicable legal framework when two alternate, and even opposing, frameworks are presented as the
governing paradigm at all times is extraordinarily complicated. This means that assessing the legality of
any particular action or operation can be difficult at best and likely infeasible, hampering efforts to ensure
compliance with the rule of law. Second, conflating law and policy risks either diluting or unnecessarily
constraining the legal regimes. The former undermines the law’s ability to protect persons in the course
of military operations; the latter places undue limits on the lawful strategic options for defending U.S.
interests and degrading or eliminating enemy threats. Policy can and should be debated and law must be
interpreted and applied, but substituting policy for legal analysis ultimately substitutes policy’s flexibility for
the law’s normative foundations.
States choose to follow LOAC based on a system of incentives – studies prove that solves
violence
Prorock and Appel ’13 (Alyssa, and Benjamin, Department of Political Science, Michigan State
University, “Compliance with International Humanitarian Law: Democratic Third Parties and Civilian
Targeting in Interstate War,” Journal of Conflict Resolution 00(0) 1-28)

Coercion is a strategy of statecraft involving the threat or use of positive inducements and negative
sanctions to alter a target state’s behavior. It influences the decision making of governments by altering
the payoffs of pursuing various policies. Recent studies demonstrate, for example, that third-party states
have used the carrot of preferential trade agreements (PTAs) to induce better human rights outcomes in
target states (Hafner-Burton 2005, 2009), while the World Bank has withheld aid to states with poor
human rights records as a form of coercive punishment (Lebovic and Voeten 2009).
We focus theoretically and empirically on the expectation of coercion. As Thompson (2009) argues,
coercion has already failed once an actor has to carry through on its coercive threat. Thus, an accurate
understanding of coercion’s impact must account for the expectation rather than the implementation
of overt penalties or benefits. It follows that leaders likely incorporate the expected reactions of third
parties into their decision making when they weigh the costs/benefits of complying with international law
(Goodliffe and Hawkins 2009; Goodliffe et al. 2012). Because governments care about the ‘‘economic,
security, and political goods their network partners provide, they anticipate likely reactions of their
partners and behave in ways they expect their partners will approve’’ (Goodliffe et al. 2012, 132).8
Anticipated positive third-party reactions for compliance increase the expected payoffs for adhering to
legal obligations, while anticipated negative responses to violation decrease the expected payoffs for that
course of action. Coercion succeeds, therefore, when states comply with the law because the expected
reactions of third parties alter payoffs such that compliance has a higher utility than violating the law.
Based on this logic, we focus on the conditions under which states expect third parties to engage in
coercive statecraft. We identify when combatant states will anticipate coercion and when that expectation
will alter payoffs sufficiently to induce compliance with the law.
While a growing body of literature recognizes that international coercion can induce compliance and
contribute to international cooperation more generally (Goldsmith and Posner 2005; Hafner-Burton
2005; Thompson 2009; Von Stein 2010), many scholars remain skeptical about coercion’s effectiveness
as an enforcement mechanism. Skeptics argue that coercion is costly to implement; third parties value the
economic, political, and military ties they share with target states and may suffer along with the target
from cutting those ties. This may undermine the credibility of coercive threats and a third party’s ability to
induce compliance through this enforcement mechanism.
While acknowledging this critique of coercion, we argue that it can act as an effective enforcement
mechanism under certain conditions. Specifically, successful coercion requires that third parties have (1)
the incentive to commit to and implement their coercive threats and (2) sufficient leverage over target
states in order to meaningfully alter payoffs for compliance. This suggests that only some third parties can
engage in successful coercion and that it is necessary to identify the specific conditions under which third
parties can generate credible coercive threats to enforce compliance with international humanitarian law.
In the following sections, we argue that third-party states are most likely to effectively use coercion to alter
the behavior of combatants when they have both the willingness and opportunity to coerce (e.g., Most
and Starr 1989; Siverson and Starr 1990; Starr 1978).
Willingness: Clarity, Democracy, and the Salience of International Humanitarian Law
Enforcement through the coercion mechanism is only likely when at least one third-party state has a
substantial enough interest in another party’s compliance that it is willing to act (Von Stein 2010). Third-
party willingness, in turn, depends upon two conditions: (1) legal principles must be clearly defined,
making violations easily identifiable and (2) third parties must regard the legal obligation as highly salient.
First, scholars have long recognized that there is significant variation in the precision and clarity of legal
rules, and that clarity contributes to compliance with the law (e.g., Abbott et al. 2000; Huth, Croco, and
Appel 2011; Morrow 2007; Wallace 2013). Precise rules increase the effectiveness of the law by
narrowing the range of possible interpretations and allowing all states to clearly identify acceptable
versus unacceptable conduct. By clearly proscribing unacceptable behavior, clear legal obligations allow
states to more precisely respond to compliant versus noncompliant behavior. In contrast, ambiguous
legal principles often lead to multiple interpretations among relevant actors, impeding a
convergence of expectations and increasing uncertainty about the payoffs for violating (complying with)
the law. Thus, the clarity of the law shapes states’ expectations by allowing them to predict the reactions
of other states with greater confidence. In particular, they can expect greater cooperation and rewards
following compliance and more punishment and sanctions for violating the law when legal obligations
are clearly defined.
While some bodies of law are imprecise, international humanitarian law establishes a comprehensive
code of conduct regarding the intentional targeting of noncombatants during war (e.g., Murphy 2006;
Shaw 2003). Starting with the 1899 and 1907 Hague Conventions and continuing through the 1949
Geneva Convention (Protocol IV), the law clearly prohibits the intentional targeting of noncombatants in
war.
This clarity allows international humanitarian law to serve as a “bright line” that coordinates the
expectations of both war combatants and third parties (Morrow 2007). By creating a common set of
standards, it reduces uncertainty, narrowing the range of interpretations of the law and allowing both
combatants and third parties to readily recognize violations of these standards. Third parties are, as a
result, more likely to expend resources to punish conduct that transgresses legal standards or to support
behavior in accordance with them. This, in turn, alters the expectations of war combatants who can
expect greater support for abiding by the law and greater punishment for violating it when the clarity
condition is met.

The best scholarship validates our theory of arms races – unless norms precede
formal agreements, they’ll be ineffective
Robert Farley 11, assistant professor at the Patterson School of Diplomacy and International
Commerce at the University of Kentucky, Over the Horizon: U.S. Drone Use Sets Global Precedent,
October 12, http://www.worldpoliticsreview.com/articles/10311/over-the-horizon-u-s-drone-use-sets-
global-precedent

Is the world about to see a "drone race" among the United States, China and several other major powers ?
Writing in the New York Times, Scott Shane argued that just such an arms race is already happening and
that it is largely a result of the widespread use of drones in a counterterror role by the United States.
Shane suggests that an international norm of drone usage is developing around how the United States
has decided to employ drones. In the future, we may expect that China, Russia and India will employ
advanced drone technologies against similar enemies, perhaps in Xinjiang or Chechnya. Kenneth
Anderson agrees that the drone race is on, but disagrees about its cause, arguing that improvements in
the various drone component technologies made such an arms race inevitable. Had the United States not
pursued advanced drone technology or launched an aggressive drone campaign, some other country
would have taken the lead in drone capabilities.
So which is it? Has the United States sparked a drone race, or was a race with the Chinese and Russians
inevitable? While there's truth on both sides, on balance Shane is correct. Arms races don't just "happen"
because of outside technological developments. Rather, they are embedded in political dynamics
associated with public perception, international prestige and bureaucratic conflict. China and Russia
pursued the development of drones before the United States showed the world what the Predator could
do, but they are pursuing capabilities more vigorously because of the U.S. example . Understanding this is
necessary to developing expectations of what lies ahead as well as a strategy for regulating drone
warfare.
States run arms races for a variety of reasons. The best-known reason is a sense of fear: The developing
capabilities of an opponent leave a state feeling vulnerable. The Germany's build-up of battleships in the
years prior to World War I made Britain feel vulnerable, necessitating the expansion of the Royal Navy,
and vice versa. Similarly, the threat posed by Soviet missiles during the Cold War required an increase in
U.S. nuclear capabilities, and so forth. However, states also "race" in response to public pressure,
bureaucratic politics and the desire for prestige. Sometimes, for instance, states feel the need to procure
the same type of weapon another state has developed in order to maintain their relative position, even if
they do not feel directly threatened by the weapon. Alternatively, bureaucrats and generals might use the
existence of foreign weapons to argue for their own pet systems. All of these reasons share common
characteristics, however: They are both social and strategic, and they depend on the behavior of other
countries.
Improvements in technology do not make the procurement of any given weapon necessary; rather,
geostrategic interest creates the need for a system. So while there's a degree of truth to Anderson's
argument about the availability of drone technology, he ignores the degree to which dramatic precedent
can affect state policy. The technologies that made HMS Dreadnought such a revolutionary warship in
1906 were available before it was built; its dramatic appearance nevertheless transformed the major
naval powers' procurement plans. Similarly, the Soviet Union and the United States accelerated nuclear
arms procurement following the Cuban Missile Crisis, with the USSR in particular increasing its missile
forces by nearly 20 times, partially in response to perceptions of vulnerability. So while a drone "race"
may have taken place even without the large-scale Predator and Reaper campaign in Pakistan, Yemen
and Somalia, the extent and character of the race now on display has been driven by U.S. behavior.
Other states, observing the effectiveness -- or at least the capabilities -- of U.S. drones will work to create
their own counterparts with an enthusiasm that they would not have had in absence of the U.S. example .
What is undeniable, however, is that we face a drone race, which inevitably evokes the question of arms
control. Because they vary widely in technical characteristics, appearance and even definition, drones are
poor candidates for "traditional" arms control of the variety that places strict limits on number of vehicles
constructed, fielded and so forth. Rather, to the extent that any regulation of drone warfare is likely, it will
come through treaties limiting how drones are used.
Such a treaty would require either deep concern on the part of the major powers that advances in drone
capabilities threatened their interests and survival, or widespread revulsion among the global public
against the practice of drone warfare. The latter is somewhat more likely than the former, as drone
construction at this point seems unlikely to dominate state defense budgets to the same degree as
battleships in the 1920s or nuclear weapons in the 1970s. However, for now, drones are used mainly to
kill unpleasant people in places distant from media attention. So creating the public outrage necessary to
force global elites to limit drone usage may also prove difficult, although the specter of "out of control
robots" killing humans with impunity might change that. P.W. Singer, author of "Wired for War," argues
that new robot technologies will require a new approach to the legal regulation of war. Robots, both in the
sky and on the ground, not to mention in the sea, already have killing capabilities that rival those of
humans. Any approach to legally managing drone warfare will likely come as part of a more general effort
to regulate the operation of robots in war.
However, even in the unlikely event of global public outrage, any serious effort at regulating the use of
drones will require U.S. acquiescence. Landmines are a remarkably unpopular form of weapon, but the
United States continues to resist the Anti-Personnel Mine Ban Convention. If the United States sees
unrestricted drone warfare as being to its advantage -- and it is likely to do so even if China, Russia and
India develop similar drone capabilities -- then even global outrage may not be sufficient to make the U.S.
budge on its position. This simply reaffirms the original point: Arms races don't just "happen," but rather
are a direct, if unexpected outcome of state policy. Like it or not, the behavior of the United States right
now is structuring how the world will think about, build and use drones for the foreseeable future. Given
this, U.S. policymakers should perhaps devote a touch more attention to the precedent they're setting.

War powers authority refers to the President’s authority to execute warfighting

operations—that includes self-defense justifications
Manget, law professor at Florida State and formerly in the Office of the General Counsel at the CIA, No
Date
(Fred, “Presidential War Powers,” http://media.nara.gov/dc-metro/rg-263/6922330/Box-10-114-7/263-a1-
27-box-10-114-7.pdf)

The President has constitutional authority to order defensive military action in response to
aggression without congressional approval. This theory of self-defense has justified many military
actions, from the Barbary Coast to the Mexican-American War to the Tonkin Gul£. 29 The Supreme
Court has agreed. In The Prize Cases, it found that President Lincoln had the right to blockade southern
states without a congressional declaration of war: "If a war be made by invasion of a foreign nation, the
President is not only authorized but bound to resist force by force. He does not initiate the war, but is
bound to accept the challenge without waiting for any special legislative authority. " 30 In a case arising
out of the Vietnam war, the defendant claimed that draft law was unconstitutionally applied to him
because Congress had not declared war. The court rejected that claim, stating that on the basis of the
Commander in Chief power, "Unquestionably the President can start the gun at home or abroad to meet
force with force. " 3 1 When the President acts in defense of the nation, he acts under war powers
authority.
3. Protection of Life and Property
The President also has the power to order military intervention in foreign countries to protect American
citizens and property without prior congressional approval.32 This theory has been cited to justify about
200 instances of use of force abroad in the last 200 years.33 The theory was given legal sanction in a
case arising from the bombardrment of a Nicaraguan court by order of the President in 1854, in retaliation
for an attack on an American consul. The court stated that it is the President to whom ".. . citizens abroad
must look for protection of person and property. . . . The great object and duty of Government is the
protection of the lives, liberty, and property of the people composing it, whether abroad or at
home.'3~Other cases have been in accord.35 The President may use force or any other means to protect
American citizens in foreign countries under his war powers authority. This extends even to a retaliatory
military strike against a country supporting terrorist acts against Americans, which occurred in April1986
when US Navy and Air Force aircraft bombed the modern Barbary Coast nation of Libya.
4. Collective Security
The President may also authorize military operations without prior congressional approval pursuant to
collective security agreements such as NA TO or OAS treaties. Unilaterial presidential action under these
agreements may be justified as necessary for the protection of national security even though hostilities
occur overseas and involve allies.36
5. National Defense Power
The President's war powers authority is actually a national defense power that exists at all times, whether
or not there is a war declared by Congress, an armed conflict, or any other hostilities or fighting. In a
recent case the Supreme Court upheld the revocation of the passport of a former CIA employee (Agee)
and rejected his contention that certain statements of Executive Branch policy were entitled to diminished
weight because they concerned the powers of the Executive in wartime. The Court stated: "History
eloquently attests that grave problems of national security and foreign policy are by no means limited to
times of formally declared war. "3; Another court has said that the war power is not confined to actual
engagements on fields of battle only but embraces every aspect of national defense and comprehends
everything reQuired to wage war successfully.3H A third court stated: "It is-and must be-true that the
Executive should be accorded wide and normally unassailable discretion with respect to the conduct of
the national defense and the prosecution of national objectives through military means."39
Thus, the Executive Branch 's constitutional war powers authority does not spring into existence when
Congress declares war, nor is it dependent on there being hostilities. It empowers the President to
prepare for war as well as wage it, in the broadest sense. It operates at all times.
6. Role of the Military
The fundamental function of the armed forces is to fight or to be ready to fight wars. 40 The Supreme
Court has recognized the existence of limited, partial, and undeclared wars:41 Thus, there is a judicially
recognized and legitimate activity of the armed services in times of no armed conflict that stems directly
from the war powers authority of the President. That activity is the preparation for the successful
waging of war, which may come in any form or level of conflict. Any actions of the Executive Branch
that are part of the fundamental functions of the armed services in readying for any type of hostility are
based on constitutional war powers authority of the President .
2AC
 terror
Corn agrees—the plan is a mitigation measure that is necessary to resolve
international backlash, not the “arbitrary geographic limitation” their offense
assumes
Geoffrey Corn, South Texas College of Law, Professor of Law and Presidential Research Professor,
J.D., 2013, Geography of Armed Conflict: Why it is a Mistake to Fish for the Red Herring
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2179720

This does not mean that the uncertainties created by the intersection of threat-based scope and TAC are
insignificant. To the contrary, extending the concept of armed conflict to a transnational non-State
opponent has resulted in significant discomfort related to the assertion of State military power. But
attempting to decouple the permissible geography of armed conflict from threat driven strategy by
imposing some arbitrary legal limit on the geographic scope of TAC is an unrealistic and ultimately futile
endeavor. Other solutions to these uncertainties must be pursued—solutions that mitigate the
perceived over-breadth of authority associated with TAC. As explained below, these solutions should
focus on four considerations:
(1) managing application of the inherent right of self-defense when it results in action within the sovereign
territory of a non-consenting State;
(2) adjusting the traditional targeting methodology to account for the increased uncertainties associated
with TAC threat identification;
(3) considering the feasibility of a “functional hors de combat” test to account for incapacitating enemy
belligerents incapable of offering hostile resistance; and
(4) continuing to enhance the process for ensuring that preventive detention of captured belligerent
operatives does not become unjustifiably protracted in duration.
This essay does not seek to develop each of these mitigation measures in depth. Instead, it proposes that
focusing on these (and perhaps other innovations in existing legal norms) is a more rational approach to
mitigating the impact of TAC than imposing an arbitrary geographic scope limitation. Other scholars have
already begun to examine some of these concepts, a process that will undoubtedly continue in the future.
Whether these innovations take the form of law or policy is another complex question, which should be
the focus of exploration and debate. In short, rejecting the search for geographic limits on the scope of
TAC should not be equated with ignorance of the risks attendant with this broad conception of armed
conflict. Instead, it must be based on the premise that even if such a limit were proposed, it would
ultimately prove ineffective in preventing the conduct of operations against transnational non-State threats
where the State concludes such operations will produce a decisive effect. Instead, focusing on the
underlying issues themselves and considering how the law might be adjusted to account for actual or
perceived authority over-breadth is a more pragmatic response to these concerns.
A. Jus ad Bellum and the Authority to Take the Fight to the Enemy
One example of proposals to mitigate the risk of over-breadth associated with TAC is the “unable or
unwilling” test highlighted by the scholarship of Professor Ashley Deeks.53 Deeks proposes a
methodology for balancing a State’s inherent right to defend itself against transnational non-State threats
and the sovereignty of other States where threat operatives are located. Because the law of neutrality
cannot provide the framework for balancing these interests (as it does in the context of international
armed conflicts), Deeks acknowledges that some other framework is necessary to limit resort to military
force outside “hot zones,” even when justified as a measure of national self-defense. The test she
proposes seeks to limit selfhelp uses of military force to situations of absolute necessity by imposing a set
of conditions that must be satisfied to provide some objective assurance that the intrusion into another
State’s territory is a genuine measure of last resort.54 This is pure lex lata,55 so is Deeks, to an extent.
However, Deeks, having served in the Department of State Legal Advisor’s Office, recognizes that if TAC
is a reality (which it is for the United States), these innovations are necessary to ensure it does not result
in unjustifiably overbroad U.S. military action.
B. Target Identification and Engagement
This is precisely the approach that should be considered in the jus in bello branch of conflict regulation to
achieve an analogous balance between necessity and risk during the execution of combat operations.
Even assuming the “unable or unwilling” test effectively limits the exercise of national selfdefense in
response to transnational terrorism, it in no way mitigates the risks associated with the application of
combat power once an operation is authorized.
The in bello targeting framework is an obvious starting point for this type of exploration of the concept and
its potential adjustment.56 Indeed, it seems increasingly apparent that while TAC suggests a broad scope
of authority to employ combat power in a LOAC framework with no geographic constraint, the
consternation generated by this effect is a result of the uncertainty produced by the complexity of threat
recognition. This consternation is most acute in relation to three aspects of action to incapacitate terrorist
belligerent operatives: the relationship between threat recognition and the authority to kill as a measure of
first resort (the difficulty of applying the principle of distinction when confronting irregular enemy
belligerent forces); the pragmatic illogic of asserting the right to kill as a measure of first resort to an
individual subject to capture with virtually no risk to U.S. forces; and the ability to apply this targeting
authority against unconventional enemy operatives located outside of “hot zones”.57
These concerns flow from the intersection of a battlespace that is functionally unrestricted by geography
and the unconventional nature of the terrorist belligerent operative. The combined effect of these factors
is a target identification paradigm that defies traditional threat recognition methodologies: no uniform, no
established doctrine, no consistent locus of operations, and dispersed capabilities.58 It is certainly true
that threat identification challenges are in no way unique to TAC; threat identification has always been
difficult, especially in the context of “traditional” noninternational armed conflicts involving unconventional
belligerent opponents. Yet, when this threat recognition uncertainty was confined to the geography of one
State, it was never perceived to be as problematic as it is in the context of TAC. This is perplexing. In both
contexts, the unconventional nature of the enemy increases the risk of mistake in the target selection and
engagement process.59 Thus, employing the same approach is completely logical.
Two factors appear to provide an explanation for the increased concern over the threat identification
uncertainty in the context of TAC. One of these is beyond the scope of “mitigation solutions,” while the
other is not. The first is the increased public awareness and interest in both the legal authority to use
military force and the legality of the conduct of hostilities, a factor that inevitably increases the scrutiny on
military power under the rubric of TAC. This pervasive and intense interest in and legal critique of
military operations associated with what is euphemistically called the war on terror is truly
unprecedented. In this “lawfare” environment, it is unsurprising that government action that deprives
individuals of life as a measure of first resort or subjects them to preventive detention that may last a
lifetime—often impacting individuals located far beyond a “hot zone” of armed hostilities —generates
intense legal scrutiny .60 This factor, whether a net positive or negative, is a reality that is unlikely to
abate in the foreseeable future.
In an article published in the Brooklyn Law Review, I proposed a sliding quantum of information related to
the assessment of targeting legality based on relative proximity to a “hot zone.”62 In essence, I proposed
that when conducting operations against unconventional non-State operatives, the reasonableness of a
target legality judgment requires increased informational certainty the more attenuated the nominated
target becomes to a zone of traditional combat operations. The concept was proposed as a measure to
mitigate the increased risk of targeting error when engaging an unconventional belligerent operative in an
area that itself does not indicate belligerent activity. Jennifer Daskal offers a similar proposal in her
article, The Geography of the Battlefield.63 Daskal presents a more comprehensive approach to adjusting
the traditional targeting framework when applied to the TAC context. Both of these articles seek to
mitigate the consequence of applying broad LOAC authority against a dispersed and unconventional
enemy; both methods that should continue to be explored.
[Note: This clarifies Corn is talking about proposals that seek to legally limit TAC authority (transnational
armed conflict) – that is referring to the “armed conflict” legal apparatus that regulates the US armed
conflict against AQ, which allows for the use of force and what not. If the US did legally confine the armed
conflict, then law enforcement and human rights law would apply outside of the battlefield. Clearly, that is
not the plan, as we only add a mitigation measure to a single armed conflict operation.]
 at: circumvention
Obama complies with war power statutes
Beau Barnes, J.D., Boston University School of Law, Spring 20 12, REAUTHORIZING THE “WAR ON
TERROR”: THE LEGAL AND POLICY IMPLICATIONS OF THE AUMF’S COMING OBSOLESCENCE,
https://www.jagcnet.army.mil/DOCLIBS/MILITARYLAWREVIEW.NSF/20a66345129fe3d885256e5b00571
830/b7396120928e9d5e85257a700042abb5/$FILE/By%20Beau%20D.%20Barnes.pdf

Unsurprisingly, this article embraces an interpretation of the Constitution that is at odds with the Vesting
Clause thesis, and instead hews closer to the view expressed in Justice Robert Jackson’s concurrence in
the 1952 Steel Seizure case.13 The Constitution explicitly empowers Congress in the area of foreign
affairs to, among other actions, approve treaties,14 declare war,15 and regulate the armed forces.16
These textual grants of authority would be vitiated if Congress were unable, in the exercise of these
powers, to “wage a limited war; limited in place, in objects, and in time.”17 A full exposition of this oft-
addressed topic is beyond the scope of this article, however, and it suffices for present purposes to
merely align it with the overwhelming majority of scholars who conceive of a Constitution where Congress
may authorize limited military force in a manner which is binding on the Executive Branch.18
Furthermore, the Vesting Clause thesis and all-powerful views of the Commander in Chief Clause have
been rejected in large part by the judiciary and the current administration.20 Indeed, one significant
reason for considering the AUMF to be an actual limit on Presidential power, and a relevant
subject for legal analysis, is because that is how the Obama Administration understands the
statute. State Department Legal Adviser Harold Koh, in his March 25, 2010, speech to the American
Society of International Law, clarified that “as a matter of domestic law” the Obama Administration relies
on the AUMF for its authority to detain and use force against terrorist organizations.21 Furthermore, Koh
specifically disclaimed the previous administration’s reliance on an expansive reading of the Constitution’s
Commander in Chief Clause.22 Roughly stated, the AUMF matters, at least in part, because the Obama
Administration says it matters.
The scope of the AUMF is also important for any future judicial opinion that might rely in part on Justice
Jackson’s Steel Seizure concurrence.23 Support from Congress places the President’s actions in
Jackson’s first zone, where executive power is at its zenith, because it “includes all that he possesses in
his own right plus all that Congress can delegate.”24 Express or implied congressional disapproval,
discernible by identifying the outer limits of the AUMF’s authorization, would place the President’s
“power . . . at its lowest ebb.”25 In this third zone, executive claims “must be scrutinized with caution, for
what is at stake is the equilibrium established by our constitutional system.”26 Indeed, Jackson
specifically rejected an overly powerful executive, observing that the Framers did not intend to fashion the
President into an American monarch.27
Jackson’s concurrence has become the most significant guidepost in debates over the constitutionality of
executive action in the realm of national security and foreign relations.28 Indeed, some have argued that
it was given “the status of law”29 by then-Associate Justice William Rehnquist in Dames & Moore v.
Regan.30 Speaking for the Court, Rehnquist applied Jackson’s tripartite framework to an executive order
settling pending U.S. claims against Iran, noting that “[t]he parties and the lower courts . . . have all
agreed that much relevant analysis is contained in [Youngstown].”31 More recently, Chief Justice John
Roberts declared that “Justice Jackson’s familiar tripartite scheme provides the accepted framework for
evaluating executive action in [the area of foreign relations law].”32 Should a future court adjudicate the
nature or extent of the President’s authority to engage in military actions against terrorists, an applicable
statute would confer upon such executive action “the strongest of presumptions and the widest latitude of
judicial interpretation.”33 The AUMF therefore exercises a profound legal influence on the future of the
United States’ struggle against terrorism, and its precise scope, authorization, and continuing vitality
matter a great deal.
 t-restrict
“Restrictions” are on time, place, and manner – this includes the scope of
authority
Lobel, professor of law at the University of Pittsburgh, 2008
(Jules, “Conflicts Between the Commander in Chief and Congress: Concurrent Power over the Conduct
of War,” Ohio State Law Journal,
http://moritzlaw.osu.edu/students/groups/oslj/files/2012/04/69.3.lobel_.pdf)

Throughout American history, Congress has placed restrictions on the President’s  power as Commander
in Chief to conduct warfare. On numerous occasions, Congress has authorized the President to
conduct warfare but placed significant restrictions on the time, place and manner of warfare.
Congress has regulated the tactics the President could employ, the armed forces  he could deploy, the
geographical area in which those forces could be utilized, and the time period and specific purposes for
which the President was authorized to use force. Its regulations have both swept broadly and set forth
detailed instructions and procedures for the President to follow. This historical practice is consistent with
the Constitution’s text and Framers’ intent, which made clear that the President was not to have the broad
powers of the British King, but was subject to the control and oversight of Congress in the conduct of
warfare.

“On” means there’s no limits disad

Dictionary.com, http://dictionary.reference.com/browse/on
On
preposition
1.so as to be or remain supported by or suspended from: Put your package down on the table; Hang your
coat on the hook.
2. so as to be attached to or unified with: Hang the picture on the wall. Paste the label on the package.
 legal security
Legal restraints work – the theory of the exception is self-serving and wrong
William E. Scheuerman 6, Professor of Political Science at Indiana University, Carl Schmitt and the Road
to Abu Ghraib, Constellations, Volume 13, Issue 1

Yet this argument relies on Schmitt’s controversial model of politics, as outlined eloquently but
unconvincingly in his famous Concept of the Political. To be sure, there are intense conflicts in which it is
naïve to expect an easy resolution by legal or juridical means. But the argument suffers from a troubling
circularity: Schmitt occasionally wants to define “political” conflicts as those irresolvable by legal
or juridical devices in order then to argue against legal or juridical solutions to them. The claim
also suffers from a certain vagueness and lack of conceptual precision. At times, it seems to be
directed against trying to resolve conflicts in the courts or juridical system narrowly understood; at other
times it is directed against any legal regulation of intense conflict. The former argument is surely stronger
than the latter. After all, legal devices have undoubtedly played a positive role in taming or at least
minimizing the potential dangers of harsh political antagonisms . In the Cold War, for example,
international law contributed to the peaceful resolution of conflicts which otherwise might have exploded
into horrific violence, even if attempts to bring such conflicts before an international court or tribunal
probably would have failed.22
Second, Schmitt dwells on the legal inconsistencies that result from modifying the traditional state-
centered system of international law by expanding protections to non-state fighters. His view is that
irregular combatants logically enjoyed no protections in the state-centered Westphalian model. By
broadening protections to include them, international law helps undermine the traditional state system and
its accompanying legal framework. Why is this troubling? The most obvious answer is that Schmitt
believes that the traditional state system is normatively superior to recent attempts to modify it by, for
example, extending international human rights protections to individuals against states. 23 But what if we
refuse to endorse his nostalgic preference for the traditional state system? Then a sympathetic reading of
the argument would take the form of suggesting that the project of regulating irregular combatants by
ordinary law must fail for another reason: it rests on a misguided quest to integrate incongruent models of
interstate relations and international law. We cannot, in short, maintain core features of the (state-
centered) Westphalian system while extending ambitious new protections to non-state actors.
This is a powerful argument, but it remains flawed. Every modern legal order rests on diverse and even
conflicting normative elements and ideals, in part because human existence itself is always “in transition.”
When one examines the so-called classical liberal legal systems of nineteenth-century England or the
United States, for example, one quickly identifies liberal elements coexisting uneasily alongside
paternalistic and authoritarian (e.g., the law of slavery in the United States), monarchist, as well as
republican and communitarian moments. The same may be said of the legal moorings of the modern
welfare state, which arguably rest on a hodgepodge of socialist, liberal, and Christian and even Catholic
(for example, in some European maternity policies) programmatic sources. In short, it is by no means
self-evident that trying to give coherent legal form to a transitional political and social moment is
always doomed to fail . Moreover, there may be sound reasons for claiming that the contemporary
transitional juncture in the rules of war is by no means as incongruent as Schmitt asserts. In some recent
accounts, the general trend towards extending basic protections to non-state actors is plausibly
interpreted in a more positive – and by no means incoherent – light.24
Third, Schmitt identifies a deep tension between the classical quest for codified and stable law and the
empirical reality of a social world subject to permanent change: “The tendency to modify or even dissolve
classical [legal] concepts…is general, and in view of the rapid change of the world it is entirely
understandable” (12). Schmitt’s postwar writings include many provocative comments about what
contemporary legal scholars describe as the dilemma of legal obsolescence. 25 In The Partisan, he
suggests that the “great transformations and modifications” in the technological apparatus of modern
warfare place strains on the aspiration for cogent legal norms capable of regulating human affairs (17;
see also 48–50). Given the ever-changing character of warfare and the fast pace of change in military
technology, it inevitably proves difficult to codify a set of cogent and stable rules of war. The Geneva
Convention proviso that legal combatants must bear their weapons openly, for example, seems poorly
attuned to a world where military might ultimately depends on nuclear silos buried deep beneath the
surface of the earth, and not the success of traditional standing armies massed in battle on the open field.
“Or what does the requirement mean of an insignia visible from afar in night battle, or in battle with the
long-range weapons of modern technology of war?” (17).
As I have tried to show elsewhere, these are powerful considerations deserving of close scrutiny; Schmitt
is probably right to argue that the enigma of legal obsolescence takes on special significance in the
context of rapid-fire social change.26 Unfortunately, he seems uninterested in the slightest possibility that
we might successfully adapt the process of lawmaking to our dynamic social universe. To be sure, he
discusses the “motorization of lawmaking” in a fascinating 1950 publication, but only in order to
underscore its pathological core.27 Yet one possible resolution of the dilemma he describes would be
to figure how to reform the process whereby rules of war are adapted to novel changes in military
affairs in order to minimize the danger of anachronistic or out-of-date law. Instead, Schmitt simply
employs the dilemma of legal obsolescence as a battering ram against the rule of law and the quest
to develop a legal apparatus suited to the special problem of irregular combatants.

Legal norms don’t cause wars and the alt can’t effect liberalism
David Luban 10, law prof at Georgetown, Beyond Traditional Concepts of Lawfare: Carl Schmitt and the
Critique of Lawfare, 43 Case W. Res. J. Int'l L. 457

Among these associations is the positive, constructive side of politics, the very foundation of Aristotle's
conception of politics, which Schmitt completely ignores. Politics, we often say, is the art of the possible. It
is the medium for organizing all human cooperation. Peaceable civilization, civil institutions, and
elemental tasks such as collecting the garbage and delivering food to hungry mouths all depend on
politics. Of course, peering into the sausage factory of even such mundane municipal institutions as the
town mayor's office will reveal plenty of nasty politicking, jockeying for position and patronage, and
downright corruption. Schmitt sneers at these as "banal forms of politics, . . . all sorts of tactics and
practices, competitions and intrigues" and dismisses them contemptuously as "parasite- and caricature-
like formations." n55 The fact is that Schmitt has nothing whatever to say about the constructive
side of politics , and his entire theory focuses on enemies, not friends. In my small community, political
meetings debate issues as trivial as whether to close a street and divert the traffic to another street. It is
hard to see mortal combat as even a remote possibility in such disputes, and so, in Schmitt's view, they
would not count as politics, but merely administration. Yet issues like these are the stuff of peaceable
human politics.
Schmitt, I have said, uses the word "political" polemically--in his sense, politically. I have suggested that
his very choice of the word "political" to describe mortal enmity is tendentious, attaching to mortal enmity
Aristotelian and republican associations quite foreign to it. But the more basic point is that Schmitt's
critique of humanitarianism as political and polemical is itself political and polemical. In a word, the
critique of lawfare is itself lawfare. It is self-undermining because to the extent that it succeeds in showing
that lawfare is illegitimate, it de-legitimizes itself.
What about the merits of Schmitt's critique of humanitarianism? His argument is straightforward: either
humanitarianism is toothless and [*471] apolitical, in which case ruthless political actors will destroy the
humanitarians; or else humanitarianism is a fighting faith, in which case it has succumbed to the political
but made matters worse, because wars on behalf of humanity are the most inhuman wars of all. Liberal
humanitarianism is either too weak or too savage.
The argument has obvious merit. When Schmitt wrote in 1932 that wars against "outlaws of humanity"
would be the most horrible of all, it is hard not to salute him as a prophet of Hiroshima. The same is true
when Schmitt writes about the League of Nations' resolution to use "economic sanctions and severance
of the food supply," n56 which he calls "imperialism based on pure economic power." n57 Schmitt is no
warmonger--he calls the killing of human beings for any reason other than warding off an existential threat
"sinister and crazy" n58 --nor is he indifferent to human suffering.
But international humanitarian law and criminal law are not the same thing as wars to end all war
or humanitarian military interventions, so Schmitt's important moral warning against ultimate
military self-righteousness does not really apply . n59 Nor does "bracketing" war by humanitarian
constraints on war-fighting presuppose a vanished order of European public law. The fact is that in nine
years of conventional war, the United States has significantly bracketed war-fighting, even against
enemies who do not recognize duties of reciprocity. n60 This may frustrate current lawfare critics who
complain that American soldiers in Afghanistan are being forced to put down their guns. Bracketing
warfare is a decision--Schmitt might call it an existential decision--that rests in part on values that
transcend the friend-enemy distinction. Liberal values are not alien extrusions into politics or
evasions of politics; they are part of politics, and , as Stephen Holmes argued against Schmitt,
liberalism has proven remarkably strong, not weak . n61 We could choose to abandon liberal
humanitarianism, and that would be a political decision. It would simply be a bad one.

The alternative imposes cookie-cutter ultra-sovereignty onto an international system it can’t

describe or govern – the impact is unending violence
Benno Gerhard Teschke 11, IR prof at the University of Sussex, “Fatal attraction: a critique of Carl
Schmitt's international political and legal theory”, International Theory (2011), 3 : pp 179-227

Schmitt's history of international law and order is deeply problematic due to the limits of its
theoretical assumptions and the explicit ideological purpose of its context-bound geopolitical
revisionism. It fails to function as a plausible international theory for the historical period (1492–
1919/45) it was designed for . But can we dissociate Schmitt's theory from his defective history,
extricate insights from Schmitt's super-politicized project, and salvage his theoretical premises –
decisionism, concept of the political, concrete-order-thinking – as generic analytics for IR theory?
Analytically, Schmitt's notion of the extra-legal decision that instantiates the politics of the exception is
little more than a passe-partout that can be ‘applied’ to an indiscriminate range of polities under duress
that turn to emergency powers. The application of Schmittian concepts to the exception can only
descriptively confirm a posteriori an already instituted state of affairs as a fait accompli, whose
explanation is outside their remit and whose critique cannot be formulated from within the
Schmittian vocabulary. Why is that the case? As Schmitt's method is bereft of any sociology of power,
decisionism lacks the analytics to identify what balance of sociopolitical forces activates in what
kind of situation the politics of the exception and fear. For the state of exception is never a non-
relational creation ex nihilo – a unique and self-referential event equivalent to the miracle in theology – as
it remains bound to the social by an indispensable act of calculation preceding its declaration with regard
to its chances of implementation, public compliance or resistance by those upon whom it bears – the
social relations of sovereignty. The exception remains quintessentially inserted in a relation of power
whose reference point remains the social. Of the two sides of the exception – the power that invokes it
and the power that is being excepted from the normal rule of law – Schmitt only theorizes the first. Yet,
the decision alone is never decisive. Schmitt's concept of sovereignty remains not only de-
socialized, but curiously de-politicized , as he seeks to identify an Archimedean point not only outside
society, but equally outside politics conventionally understood, super-insulated from any sociopolitical
contestation, in order to govern not only against society, but to neuter domestic politics altogether – ultra-
sovereignty. This extra-political vantage point is deliberately chosen – and here political theology and
hyper-authoritarianism converge – to pinpoint that chimerical location that re-stabilizes social processes
from nowhere – ex nihilo – yet with overwhelming force. But this ‘place beyond’ really belongs to the
sphere of theology proper. Here, at the latest, political theology – the conception of sovereignty
modeled on absolutism and the papal plenitudo potestatis – risks not only collapsing into
unrestrained and arbitrary state-terror, but being removed from any rational intelligibility
whatsoever – the apotheosis of the state. Sovereignty defined in terms of the exception constitutes
a legal–political category and cannot explain what provokes and comprises concrete states of
emergency as real historical phenomena . Schmitt's conception of sovereignty constitutes a
normative prescription, designed specifically for a hyper-authoritarian solution to the intractable crisis of
the Weimar state, and cannot function as a generic analytic for ubiquitous invocations of
emergency powers . It is singularly unable to gauge the different constellations and transformations
between political authority and social relations, geopolitics and international law, and, ultimately, spatial
world-ordering. But this was the task set by The Nomos and the turn towards concrete-order-thinking in
the mid-30s, generating a reinterpretation of history as a succession of spatial–legal nomoi that tied
Schmitt's present to a seemingly remote and recondite past. Yet, concrete-order-jurisprudence fails to
provide guidance as to what processes drive the politics of land-appropriation, enemy-declarations, and
world-ordering, leading to an asociological and curiously non-geopolitical – in the sense of geopolitics as
an inter-subjective encounter between polities – stance. Schmitt's law-antecedent act of land-
appropriation, which generated the meta-juridical legitimacy upon which international legality is erected, is
itself divorced from any further theoretical determinations. The ‘concrete’ is largely the factual. The
descending journey from the concrete to its manifold inner determinations and the ascending return
journey to the concrete as a ‘concrete in thought’, captured in its rich inner determinations, is never
undertaken (Marx 1973, 100).26 The concrete – facticity – turns into an abstraction in Schmitt's work.
Throughout Schmitt's work, concrete-order-thinking remains strictly extra-sociological as the lateral
dynamics of geopolitics and ‘land-appropriations’ are abstracted from and non-articulated with the vertical
dynamics of social property relations. In fact, it is self-consciously anti-sociological in line with Schmitt's
generic Weltanschauung as a counter-revolutionary étatist thinker. And if the nomos-constitutive acts of
conquests are socially disembowelled, the relevance of land-appropriations was already historically
overtaken by the largely non-territorial and concrete-order-transcending nature of the US-American form
of capitalist hegemony, which rendered Schmitt's concrete-order-jurisprudence anachronistic already at
the time of his writing. The Nomos, in spite of Schmitt's insistence on the concrete, remains largely written
in the register of a history of ideas, more akin to the contemporary practice of ‘semantic history’,
interspersed with etymological derivations, geo-mythology and legal history, conceptually antithetical to
any international historical sociology. While Schmitt's critique of legal normativism and his partial
retraction from decisionism during the mid-30s predisposes his new programme of concrete-order-
jurisprudence towards sociology – domestic and international – his definition and handling of the
sociological writes ‘the social’ out of the construction and dynamics of spatial (dis-)orders and replaces it
with the reification of the geopolitical. This suppression and elimination of social relations was, of course,
already prefigured in his concept of the political (Huysmans 2008) that now informed his concept of the
geopolitical. Both insulated the (geo-)political from the social – in fact, privileged the (geo-)political over
and against the social. And as Schmitt's definition of the political referred to the intensification of
unspecified antagonisms only – as it refers to the quality of antagonisms and not to a specific political
process or substances (economic, cultural, ethnic, constitutional, etc.) – it lacks any indication as to which
dynamics activate and intensify latent geopolitical differences to the point of open friend/enemy
distinctions – or, indeed: forms of international accommodation and cooperation. Which sociopolitical
interests and conflicts around the control of the state and the direction of public policy – beyond an
elementary and ontologized notion of existential national autonomy – politicize, de-politicize, and re-
politicize geopolitical differences as liminal situations that call for emergency powers and the declaration
of states of war? Schmitt's thought contains no categories to capture the sociopolitical (civil war,
revolutions, coup d’États) and geopolitical crises (war, terrorism, irregular warfare) against which he
developed his vocabulary of law and order ‘from above’. Schmitt's restrictive conceptualization of the
political from the angle of the extreme situation provides no pointers as to what processes lead
to the extremization of politics – the social construction of states of exception and war-declarations.
Ultimately, Schmitt is taking politics and geopolitics out of his concept of the political. The content of the
analysis lies outside his notion of the political. This renders the jargon of the exception, the political,
and the concrete abstract, formalistic and explanatorily empty. Schmittian theorems can be
applied to geopolitical and legal configurations from without, but cannot be set to work to ‘ get behind’
changes in international law and geopolitics – from Columbus to the Bush Doctrine – from within.

Prioritization claims are counter-productive and illogical – you should evaluate

the veracity of the 1ac’s claims about the world while embracing a plurality of
(methods / ontologies / theories)
Andrew Bennett 13, government prof at Georgetown, The mother of all isms: Causal mechanisms and
structured pluralism in International Relations theory, European Journal of International Relations 2013
19:459

The political science subfield of International Relations (IR) continues to undergo debates on whether and
in what sense it is a 'science,1 how it should organize its inquiry into international politics, and how it
should build and justify its theories. On one level, an 'inter-paradigm' debate, while less prominent than
during the 1990s, has continued to limp along among researchers who identify their work as fitting within
the research agenda of a grand school of thought, or 'ism,' and the scholar most closely associated with
it, including neorealism (Waltz, 1979), neoliberalism (Keohane, 1984), constructivism (Wendt, 1992), or
occasionally Marxism (Wallerstein, 1974) or feminism (Tickner, 1992). Scholars participating in this
debate have often acted as if their preferred 4 ism' and its competitors were either "paradigms" (following
Kuhn, 1962) or "research programs' (as defined by Lakatos, 19701. and some have explicitly framed their
approach as paradigmatic or programmatic (Hopf, 1998).
A second level of the debate involves post-positivist critiques of IR as a "scientific' enterprise (Lapid,
1989). While the vague label "post-positivist, encompasses a diverse group of scholars, frequent post-
positivist themes include arguments that observation is theory-laden (Kuhn, 1962), that knowledge claims
are always part of mechanisms of power and that meaning is always social (Foucault, 1978), and that
individual agents and social structures are mutually constitutive (Wendt, 1992). Taken together, these
arguments indicate that the social sciences face even more daunting challenges than the physical
sciences.
A third axis of contestation has been methodological, involving claims regarding the strengths and limits
of statistical, formal, experimental, qualitative case study, narrative, and other methods. In the last two
decades the argument that there is 'one logic of inference1 and that this logic is 'explicated and
formalized clearly in discussions of quantitative research methods' (King et al., 1994: 3) has generated a
useful debate that has clarified the similarities, differences, uses, and limits of alternative methods ( Brady
and Collier, 2010; George and Bennett, 2005; Goertz and Mahoney, 2006).
These debates have each in their own way proved fruitful, increasing the theoretical, epistemological, and
methodological diversity of the field (Jordan el al., 2009). The IR subfield has also achieved considerable
progress in the last few decades in its theoretical and empirical understanding of important policy-relevant
issues, including the inter-democratic peace, terrorism, peacekeeping, international trade, human rights,
international law, international organizations, global environmental politics, economic sanctions, nuclear
proliteration, military intervention, civil and ethnic conflicts, and many other topics.
Yet there is a widespread sense that this progress has arisen in spite of interparadigmatic debates rather
than because of them. Several prominent scholars, including Rudra Sil and Peter Katzenstein, have
argued that although research cast within the framework of paradigmatic debates has contributed useful
concepts and findings, framing the IR field around inter-paradigmatic debates is ultimately distracting and
even counterproductive (Sil and Katzenstein, 2010; see also David Lake, 2011, and in this special issue,
and Patrick Thaddeus Jackson and Daniel Nexon, 2009, and in this special issue). These scholars agree
that IR researchers have misapplied Kuhn's notion of paradigms in ways that imply that grand theories of
tightly connected ideas — the isms — are the central focus of IR theorizing, and that such isms should
compete until one wins general consensus. Sil and Katzenstein argue that the remedy for this is to draw
on pragmatist philosophers and build upon an 'eclectic' mix of theories and methods to better understand
the world (Sil and Katzenstein, 2010). In this view, no single grand theory can capture the complexities of
political life, and the real explanatory weight is carried by more fine-grained theories about 'causal
mechanisms."
In this article I argue that those urging a pragmatic turn in IR are correct in their diagnosis of the
drawbacks of paradigms and their prescription tor using theories about causal mechanisms as the basis
for explanatory progress in IR. Yet scholars are understandably reluctant to jettison the "isms' and the
inter-paradigmatic debate not only because they fear losing the theoretical and empirical contributions
made in the name of the isms, but because framing the field around the isms has proven a useful
shorthand for classroom teaching and field-wide discourse. The 'eclectic' label that Sil and Katzenstein
propose can easily be misinterpreted in this regard, as the Merriam-Webster online dictionary defines
'eclectic* as 'selecting what appears to be best in various doctrines, methods, or styles,' as Sil and
Katzenstein clearly intend, but it also includes as synonyms "indiscriminate" and 'ragtag.'1 By using the
term 'eclecticism' and eschewing any analytic structure for situating and translating among different
examples of IR research, Sil and Katzenstein miss an opportunity to enable a discourse that is structured
as well as pluralistic, and that reaches beyond IR to the rest of the social sciences.
I maintain that in order to sustain the genuine contributions made under the guise of the inter-
paradigmatic debate and at the same time get beyond it to focus on causal mechanisms rather than
grand theoretical isms, four additional moves are necessary. First, given that mechanism-based
approaches are generally embedded within a scientific realist philosophy of science, it is essential to
clarify the philosophical and definitional issues associated with scientific realism, as well as the benefits
— and costs — of making hypothesized causal mechanisms the locus of explanatory theories. As
Christian Reus-Smit argues in this special issue, IR theory cannot sidestep metatheoretical debates.
Second, it is important to take post-positivist critiques seriously and to articulate standards for theoretical
progress, other than paradigmatic revolutions, that are defensible even if they are fallible. Third, achieving
a shift toward mechanismic explanations requires outlining the contributions that diverse methods can
make to the study of causal mechanisms. Finally, it is vital to demonstrate that a focus on mechanisms
can serve two key functional roles that paradigms played for the IR subfield: first, providing a framework
for cumulative theoretical progress; and, second, constituting a useful, vivid, and structured vocabulary for
communicating findings to fellow scholars, students, political actors, and the public (see also Stefano
Guzzini's article in this special issue). I argue that the term 'structured pluralism' best captures this last
move, as it conveys the sense that IR scholars can borrow the best ideas from different theoretical
traditions and social science disciplines in ways that allow both intelligible discourse and cumulative
progress.
Alter briefly outlining the problems associated with organizing the IR field around the "isms/ this article
addresses each of these four tasks in turn. First, it takes on the challenges of defining "causal
mechanisms' and using them as the basis of theoretical explanations. Second, it acknowledges the
relevance and importance of post-positivist critiques of causal explanation, yet it argues that scientific
realism and some approaches to interpretivism are compatible, and that there are standards upon which
they can agree forjudging explanatory progress. Third, it very briefly clarifies the complementary roles that
alternative methods can play in elucidating theories about causal mechanisms. Finally, the article
presents a taxonomy of theories about social mechanisms to provide a pluralistic but structured
framework for cumulative theorizing about politics. This taxonomy provides a platform for developing
typological theories — or what others in this special issue, following Robert Merton, have called middle-
range theories — on the ways in which combinations of mechanisms interact to produce outcomes. Here,
I join Lake in this special issue in urging that IR theorizing be centered around middle-range theories, and
I take issue with Jackson and Nexon's suggestion herein that such theorizing privileges correlational
evidence, and their assertion that statistical evidence is inherently associated with Humean notions of
causation. I argue that my taxonomy of mechanisms offers a conceptual bridge to the paradigmatic isms
in IR. adopting and organizing their theoretical insights while leaving behind their paradigmatic
pretensions. The article concludes that, among its other virtues, this taxonomy can help reinvigorate
dialogues between IR theory and the fields of comparative and American politics, economics, sociology,
psychology, and history, stimulating cross-disciplinary discourses that have been inhibited by the
scholasticism of IR's ingrown 'isms.'
 self-restraint
Empirics
Sarah Knuckey, NYU Law School Project on Extrajudicial Executions Director, Special Advisor to the
UN Special Rapporteur on extrajudicial executions, 10/1/13, Transparency on Targeted Killings:
Promises Made, but Little Progress, justsecurity.org/2013/10/01/transparency-targeted-killings-promises-
made-progress/

Some interpreted these efforts and the President’s speech to mark the beginning of improved
transparency. But despite transparency promises and expectations, many of the same, core concerns
regarding undue secrecy remain. The President’s speech, the Policy Guidance, and Holder’s letter –
because of textual ambiguities within each, and combined with events since – have largely failed to
address these longstanding concerns, and in some important respects aggravated them.
Continuing Secrecy on Core Issues
Key areas in which transparency has not yet been forthcoming include:
Who can be killed, where, and on what basis. Demands for legal and policy information on who and
when the US believes it can kill have long been at the center of calls for more transparency. Senior US
officials, before 2013, delivered important speeches outlining the government’s views on the applicable
legal frameworks for targeting. But the speeches lacked detail, and left crucial legal questions
unanswered. Legal concepts key to understanding the scope of US targeting – like “imminence,”
“associated forces,” and “directly participating in hostilities” – remain unclear (see this and this). The
relevant legal memos have still not been published, even in redacted form. In addition, although
President Obama’s speech and the published Policy Guidance set out strict rules for the use of force –
stricter, in numerous respects, than the laws of war – they are not legally binding , and we do not know
when they began to apply, or when the strict policy limits on killing may be relaxed (and if we will ever be
told when they are). And, crucially, we don’t know where the new guidelines actually apply (original
assumptions by many outside government that they applied in Pakistan were later called into question).
Since Obama’s May 2013 speech, confusion about who can be targeted has at times increased (e.g. a
“senior American official” stated in August that a security threat had “expanded the scope” of who could
be targeted in Yemen).

Fails
Eric Posner, Professor of Law, The University of Chicago Law School, and Adrian Vermeule,
Professor of Law, Harvard Law School, 2007, The Credible Executive, 74 U. Chi. L. Rev. 865

In an interesting treatment of related problems, Neal Katyal suggests that the failure of the Madisonian
system counsels "internal separation of powers" within the executive branch. n78 Abdication by Congress
means that there are few effective checks on executive power; second-best substitutes are necessary.
Katyal proposes some mechanisms that would be adopted by Congress, such as oversight hearings by
the minority party, but his most creative proposals are for arrangements internal to the executive branch,
such as redundancy and competition among agencies, stronger employment protections for civil servants,
and internal adjudication of executive controversies by insulated "executive" decisionmakers who
resemble judges in many ways. n79
Katyal's argument is relevant because the mechanisms he discusses might be understood as signaling
devices, but his overall approach is conceptually flawed on two grounds. First, the assumption that
second-best constraints on the executive should reproduce the Madisonian separation of powers within
the executive branch is never defended. The idea seems to be that this is as close as we can get to the
first-best, while holding constant everything else in our constitutional order. But the general theory of
second-best states that approaching as closely as possible to the first-best will not necessarily be the
preferred strategy; n80 the best approach may be to adjust matters on other margins as well, in
potentially unpredictable ways. If the Madisonian system has failed in the ways Katyal suggests, the best
compensating [*898] adjustment might be, for all we know, to switch to a parliamentary system. (We
assume that no large scale changes of this sort are possible, whereas Katyal seemingly assumes that
they are, or at least does not make clear his assumptions in this regard.) Overall, Katyal's view has a kind
of fractal quality; each branch should reproduce within itself the very same separation of powers structure
that also describes the whole system, but it is not explained why the constitutional order should be fractal.
Second, Katyal's proposals for internal separation of powers are self-defeating: the motivations that
Katyal ascribes to the executive are inconsistent with the executive adopting or respecting the
prescriptions Katyal recommends. n81 Katyal never quite says so explicitly, but he clearly envisions the
executive as a power-maximizing actor, in the sense that the president seeks to remove all constraints on
his current choices. n82 Such an executive would not adopt or enforce the internal separation of
powers to check himself . Executive signaling is not, even in principle, a solution to the lack of
constraints on a power-maximizing executive in the sense Katyal implicitly intends. Although an ill-
motivated executive might bind himself to enhance his strategic credibility, as explained above, he would
not do so in order to restore the balance of powers. Nor is it possible, given Katyal's premise of legislative
passivity or abdication, that Congress would force the internal separation of powers on the executive. In
what follows, we limit ourselves to proposals that are consistent with the motivations, beliefs, and political
opportunities that we ascribe to the well-motivated executive, to whom the proposals are addressed. This
limitation ensures that the proposals are not self-defeating, whatever their other drawbacks.

Executive lead makes Congressional follow-on impossible

Ezra Klein, Washington Post, 4/19/13, Obama’s second term is upending what we think we know about
Washington, www.washingtonpost.com/blogs/wonkblog/wp/2013/04/19/obamas-second-term-is-
upending-what-we-think-we-know-about-washington/?print=1

So the White House is running an outside game on gun control and an inside game on the budget. But
there’s a third and more provocative theory of presidential power. Widely subscribed to by political
scientists, this theory makes people in Washington very uncomfortable because it upends cherished
assumptions about how politics in general — and the presidency in particular — functions.
Under this theory, and the data that supports it , the president isn’t a unifying figure, or even a
particularly persuasive one, when government is divided. Decades of polls show little evidence that
presidential speeches move voters. They can draw attention to issues, but they rarely change attitudes —
and they occasionally backfire.
Worse, because the president is an intrinsically polarizing figure, anything he endorses becomes instantly
less appealing to the minority party. In eras of divided government, that can make it impossible to pass
legislation . If this theory of presidential power is correct, the best thing a president can do is often
nothing — at least in public.

Self-restraint results in turf wars, constraining future executive flexibility

Katyal 13 (Neal, Paul and Patricia Saunders Professor of Law, Georgetown University, “BOOK
REVIEW: STOCHASTIC CONSTRAINT” February, 2013, 126 Harv. L. Rev. 990)

In the end, there is a deep risk that Goldsmith’s new constraints will not leave the presidency in quite the
same place as would Madisonian checks and balances. Sometimes, as with a popular President, the
Executive may be constrained far less than in a Madisonian system. And sometimes, the President may
be constrained too much, for when Presidents overreach, there is always the risk of a corresponding
overreaction by the other branches and the public. What is more, the multiple different actors that might
engage in Goldsmith’s checking function (and the many possible permutations of actors that might work
together) make the ultimate result — and the process used to get there (which will often impact that
result) — unpredictable. Such an overreaction may push policy further back, to a place more constrained
than what is optimal. By acting too hastily or too independently and by relying on Goldsmith’s new
mechanisms of constraint, the Executive may end up with less power than it truly needs.
 nsa
NSA program has no national security impact
Peter Bergen, New America Foundation National Security Fellow, Jan 20 14, Do NSA's Bulk
Surveillance Programs Stop Terrorists?, http://www.lawfareblog.com/wp-
content/uploads/2014/01/Bergen_NAF_NSA-Surveillance_1.pdf

However, our review of the government’s claims about the role that NSA “bulk” surveillance of phone and email
communications records has had in keeping the United States safe from terrorism shows that these claims are
overblown and even misleading .* An in-depth analysis of 225 individuals recruited by al-Qaeda or a like-
minded group or inspired by al-Qaeda’s ideology, and charged in the United States with an act of terrorism since 9/11,
demonstrates that traditional investigative methods, such as the use of informants, tips from local communities, and
targeted intelligence operations, provided the initial impetus for investigations in the majority of cases, while the
contribution of NSA’s bulk surveillance programs to these cases was minimal. Indeed, the controversial bulk
collection of American telephone metadata, which includes the telephone numbers that originate and receive calls, as well as the
time and date of those calls but not their content, under Section 215 of the USA PATRIOT Act, appears to have played an
identifiable role in initiating, at most, 1.8 percent of these cases. NSA programs involving the surveillance of non-U.S. persons
outside of the United States under Section 702 of the FISA Amendments Act played a role in 4.4 percent of the terrorism
cases we examined, and NSA surveillance under an unidentified authority played a role in 1.3 percent of the
cases we examined. Regular FISA warrants not issued in connection with Section 215 or Section 702, which are the traditional
means for investigating foreign persons, were used in at least 48 (21 percent) of the cases we looked at, although it’s unclear
whether these warrants played an initiating role or were used at a later point in the investigation. (Click on the link to go to a
database of all 225 individuals, complete with additional details about them and the government’s investigations of these cases:
http://natsec.newamerica.net/nsa/analysis). Surveillance of American phone metadata has had no discernible
impact on preventing acts of terrorism and only the most marginal of impacts on preventing terrorist- related
activity, such as fundraising for a terrorist group. Furthermore, our examination of the role of the database of U.S. citizens’
telephone metadata in the single plot the government uses to justify the importance of the program – that of
Basaaly Moalin, a San Diego cabdriver who in 2007 and 2008 provided $8,500 to al-Shabaab, al-Qaeda’s affiliate in Somalia –
calls into question the necessity of the Section 215 bulk collection program.5 According to the government, the
database of American phone metadata allows intelligence authorities to quickly circumvent the traditional burden of proof associated
with criminal warrants, thus allowing them to “connect the dots” faster and prevent future 9/11-scale attacks. Yet in the Moalin case,
after using the NSA’s phone database to link a number in Somalia to Moalin, the FBI waited two months to begin an investigation
and wiretap his phone. Although it’s unclear why there was a delay between the NSA tip and the FBI wiretapping, court documents
show there was a two-month period in which the FBI was not monitoring Moalin’s calls, despite official statements that the bureau
had Moalin’s phone number and had identified him.6,7 This undercuts the government’s theory that the database of
Americans’ telephone metadata is necessary to expedite the investigative process , since it clearly didn’t
expedite the process in the single case the government uses to extol its virtues. Additionally, a careful review of
three of the key terrorism cases the government has cited to defend NSA bulk surveillance programs reveals that
government officials have exaggerated the role of the NSA in the cases against David Coleman Headley and Najibullah
Zazi, and the significance of the threat posed by a notional plot to bomb the New York Stock Exchange.

No political capital or inter-branch coop—fights ongoing

Charlie Cook, National Journal, 3/17/14, 6 Ways Washington Will Stay the Same,
www.nationaljournal.com/off-to-the-races/6-ways-washington-will-stay-the-same-20140317

3. President Obama's job-approval ratings are very likely to remain pretty much where they are today,
which means he will be running pretty low on political capital . His approval generally oscillates
between 38 and 46 percent in most polls, with disapproval usually between 50 and 54 percent (looking
only at polls using live interviewers). Obama's approval ratings have ranged from as low as 38 percent in
Fox and occasional Gallup nightly tracking to as high as 46 percent in polling by ABC News/Washington
Post, CBS News/New York Times, and at times, Gallup. Most often, the president's approval rating runs
around 41 percent, as NBC News/Wall Street Journal and the most recent CBS/NYT poll found. Obama's
disapproval numbers have run from as low as 47 percent in older CBS News polls to as high as 54
percent in NBC/WSJ's and Fox's polling (there is a Bloomberg News poll that was something of an outlier
that showed 48 percent for both approval and disapproval of the president). The most recent (March 14-
16) Gallup tracking shows 40 percent approval, 55 percent disapproval. If Obama were a stock, you
would say he has a narrow trading range, with a high floor and a low ceiling. Barring some cataclysmic
event, his approval is unlikely to stay below 38 percent or above 46 percent for long, meaning that his
political capital will remain pretty low for the duration of his presidency.
4. Obama's relations with Congress will remain poor for the duration of his time in office, pretty much as
they have been since his earliest days in the White House. More specifically, Obama and his White
House have no relationship at all with the tea party and most conservative Republicans on Capitol Hill,
an awful relationship with the more establishment Republicans, and a distant and uncomfortable
relationship with congressional Democrats. Perhaps the title of the movie He's Just Not That Into You
pretty much describes how the president's attitude toward his own party members seems to be, and their
view of him has become pretty much reciprocal. It's hard to see how any of that changes either before or
after the 2014 midterms.
5. To the extent that Congress and the president are unable to agree on much legislatively, the Obama
administration will try as much as possible to affect policy through regulatory and administrative means.
This in turn is likely to set up even more fights with Congress .

PC theory is no longer true

Ryan Lizza, The New Yorker's Washington correspondent, 1/30 [Obama Breaks Up with Congress,”
http://www.newyorker.com/online/blogs/comment/2014/01/the-state-of-the-union-or-obama-breaks-up-
with-congress.html]

Several generations of political leaders and journalists have been taught to believe that, in the words of
the political scientist Richard Neustadt, “Presidential power is the power to persuade.” Presidents always
come into office believing that, with bargaining, cajoling, and pure reason, they can bring members of
Congress around to the idea that passing the White House’s agenda is in their interest. Obama believed
this in his bones; his 2008 campaign was premised on it.¶ But modern political scientists have
abandoned some of Neustadt’s core claims . They’ve settled on a far less exciting analysis, which
casts the President as a more passive victim of circumstance who can do little to move Congress
unless he already has a majority of votes. Instead of emphasizing the potential of great Presidential
leadership and heroic abilities of persuasion, this more structural view emphasizes the limits of a system
in which Congress and the President—despite the way it looked on TV on Tuesday night—are co-equal
branches of government. Congress contains land mines that the White House has almost no ability to
defuse: the extreme polarization of the House, based on a geographic sorting of the public; the rural-state
tilt in the Senate that gives Republicans an advantage; the filibuster, and more.¶ It has taken Obama years
to transform from a Neustadtian into a structuralist, but Tuesday night marked the completion of the cycle.
That metamorphosis has forced the White House to think hard about how Obama can effect change on
his own, and it’s one reason that the President recently asked John Podesta to come aboard. (Podesta,
who has long advised the White House to use more executive authority, watched the speech with other
top Obama aides from the back of the chamber. He seemed pleased.) ¶ It’s prudent to be skeptical when
listening to the White House’s new claims about what it can accomplish without Congress. After all, if
Presidents could solve America’s biggest problems on their own, they would. But every modern President
pushes the boundaries of executive authority, and Obama laid out some creative ideas last night that are
not just token reforms. For instance, his climate-change policies—which rely on E.P.A. regulations—can
be implemented with no input whatsoever from Congress, though of course Congress can try to undo
them. Obama also hinted that he may use his pen to preserve more wilderness and other sensitive lands,
an environmental tool that Bill Clinton often used, but which Obama has not. His push to encourage
businesses and states to raise the minimum wage and his own executive order to raise the minimum
wage for future federal contractors are not trivial. He has wide latitude to reform the practices of the
N.S.A.¶ But many of the other actions that he outlined will have limited impact. The White House can’t
implement gun control by fiat, and it can’t fix the tax code or repair the immigration system on its own.
Obama’s new realism is necessary and appropriate, but at some point this year he will need to rekindle
his relationship with Congress.

Uniqueness overwhelms—its just a question of the specifics, but all of the

versions end the metadata program
Ellen Nakashima, 3/25/14, Emerging political consensus supports end to NSA collection of
Americans’s phone records, www.washingtonpost.com/world/national-security/emerging-political-
consensus-supports-end-to-nsa-collection-of-americanss-phone-records/2014/03/25/c251b39c-b42a-
11e3-8cb6-284052554d74_story.html

President Obama said Tuesday that the intelligence community has given him a plan to get there, and key factions in
Congress have developed various alternatives. The questions are: Which version or which hybrid of versions
will emerge the winner? And what will the result mean for Americans? The answer to the former: It’s too soon to tell. The
answer to the latter: No matter which version emerges, the days of the government collecting Americans’
phone records in bulk are numbered. In truth, momentum has been building toward that since June, when the
NSA’s program that collects billions of records on Americans’ phone call activity was disclosed in a document leaked by former
intelligence contractor Edward Snowden. What the NSA has been collecting is “metadata” — numbers dialed, times and lengths of
calls — not the content of conversations. The goal was to have numbers that analysts could search when they were looking for
clues to terrorism plots. Several major phone companies have been turning over their caches of data to the agency every day since
2006, under court orders. Although the administration and some judges have said the program is lawful and constitutional, Obama
concluded in January that its scale — collecting tens of billions of citizens’ records that are stored for five years at the NSA — was
making too many people uncomfortable about the potential for abuse. He ordered his subordinates to find a way to end the
government’s collection of so many records. Obama said he thinks the plan he has is “workable.” Essentially, the phone companies
would keep records about who called whom just as they always have. (Some companies keep such information for a year or two,
others for 10 years.) A judge would determine that a number the government wants data on is linked to a terrorist organization. Then
the phone company would send the government all call activity linked to that number, in real time, as it comes in. This plan has two
key features: It requires judicial approval before a number can be searched, a requisite for privacy advocates. Second, it does not
require the phone companies to hold the data longer than they normally would. That was a prospect the firms opposed. But a
downside, privacy advocates say, is that it apparently does not address all forms of mass data collection — just telephone records.
The law used to justify the NSA collection, Section 215 of the USA Patriot Act, can be interpreted to apply to other forms of data,
such as credit card records and phone location data, reform advocates argue. “If we’re going to fix it, let’s fix it right and end bulk
collection for all types of data,” said Harley Geiger, senior counsel at the Center for Democracy & Technology. A bill introduced
Tuesday by the leaders of the House Intelligence Committee also would end bulk collection. And the measure seems to go further
than the White House’s approach in that it would outlaw such collection of other types of data. But it would allow the government to
submit the phone numbers to the companies first and then seek a judge’s okay that the numbers were linked to a terrorist group or
foreign power. The lack of prior judicial approval makes that approach unworkable for many privacy advocates. What’s
significant about the bill, introduced by Intelligence Committee Chairman Mike Rogers (R-Mich.) and Rep. C.A.
Dutch Ruppersberger (Md.), the panel’s ranking Democrat, is that its sponsors are staunch defenders of the national
security agencies. The fact that they have a measure that would end bulk collection shows how far the
political climate has shifted in the past year. The Obama administration and House intelligence panel’s bill would let the
government seek records two “hops” removed from a suspect number. A third major approach — what privacy advocates consider
the “gold standard” — is the USA Freedom Act, co-sponsored by Rep. F. James Sensenbrenner Jr. (R-Wis.) and Sen. Patrick J.
Leahy (D-Vt.). That bill, which has not advanced in either chamber of Congress, would end bulk collection in all forms. It requires
judicial approval before companies can turn over data linked to a particular number. Capitol Hill watchers say it’s too soon to tell
what version might gain the necessary votes to pass. If no one does anything, the underlying law — Section 215 — will expire in
June 2015. It is widely acknowledged that Congress lacks the votes to extend it without changes. Bulk collection under that authority
would end. As Michelle Richardson of the American Civil Liberties Union said, “Let the whole dang thing sunset.” But, reform
advocates including Richardson say, they want to take advantage of the momentum now to make broader fixes. The
bottom line: Change is in the air.

Congress will backdoor reauthorize indefinitely

Hayes Brown, Think Progress, 3/27/14, Privacy Advocates Skeptical Of Obama’s New NSA Reforms,
thinkprogress.org/world/2014/03/27/3419777/nsa-reform-schiff/

With the glacial pace at which Congress has operated lately, there’s reason to be concerned about the
likelihood of any bill passing soon. “Given that this legislation will not be in place by March 28 and given
the importance of maintaining this capability, I have directed the Department of Justice to seek a 90-day
reauthorization of the existing program,” Obama said in his statement Thursday. Since the revelation of
the Section 215 collection program last June, there have been three such 90-day renewals. And in a
briefing call this morning, a senior administration official tacitly confirmed that should Congress not act,
the renewals of the program in its current state could continue on indefinitely.

Obama solves
Ed Morrissey, 3/25/14, Obama to end NSA telephone-records collection program,
hotair.com/archives/2014/03/25/obama-to-end-nsa-telephone-records-collection-program/
In other words, this
doesn’t require an act of Congress to end, especially since the proposal won’t require
telcos to retain records any longer than they currently do or for any particular period of time. Obama could order
the NSA to simply stop collecting the data. After all, there is literally nothing in Section 215 of the PATRIOT
Act that requires NSA to perform this task; it doesn’t even mention the NSA at all, only the FBI. So why doesn’t
he do so? Obama has certainly had few issues with taking executive action for his own agenda , and then publicly
bragging about it. This looks like an attempt to have Congress take the responsibility for killing this program in case anything
happens afterward — a way to dodge responsibility for the consequences, in other words. Congress should politely remind Obama
that this actually does fall within the executive branch’s authority and suggest that what the executive branch orders, it can also stop
all by itself. Gabriel Malor notes that a couple of the provisions in this would require Congress to act: These are fair points, but the
interpretation from the executive branch already is that Section 215 allows for bulk data collection. If
they’re stopping that, then this is (a) an academic point, and (b) no impediment to stopping it now. The same is true
for granting the executive branch a “judicial role” in seeking records, because the process in place would have the judiciary perform
it until Congress acts — and in that case, it sounds like a bad idea anyway. And again, it would be no impediment to
stopping the massive collection now either.

Only the Leahy bill solves surveillance overreach

Julian Sanchez, Daily Beast, 3/25/14, The Best NSA Fix Comes From the Patriot Act’s Author,
www.thedailybeast.com/articles/2014/03/25/the-best-nsa-fix-comes-from-the-patriot-act-s-author.html

Take a victory lap, Edward Snowden. Last summer, the White House and congressional intelligence
committee leadership were unified in their insistence that the National Security Agency’s bulk collection of American
telephone records was an essential intelligence resource that had prevented scores of terrorist attacks. As spring dawns—with
those claims shredded by two expert panels—the only disagreement is over precisely how to end the controversial
NSA program, with three main proposals now vying for legislative support. The two being unveiled this week— bipartisan
legislation sponsored by leaders of the House Permanent Select Committee on Intelligence (HPSCI) and a plan
supported by President Barack Obama—are quite similar in their broad outlines but differ in a few key details. Neither,
however, goes quite so far in limiting the NSA as the USA Freedom Act, sponsored by Senate Judiciary
Committee Chair Patrick Leahy (D-VT) and born-again Patriot Act author Rep. Jim Sensenbrenner (R-WI). Before delving into the
differences, though, it’s important to note what these proposals have in common. In a major policy speech in January, President
Obama committed to ending the NSA program “as it currently exists,” as his handpicked Surveillance Review Group had urged. But
Obama left open the possibility that bulk records collection might continue with some third-party custodian maintaining the database
of phone logs, or that phone companies could be compelled to retain their own records for a longer time to ensure NSA access.
Both ideas would now appear to have been firmly rejected. Phone companies will keep their own records for as long as their own
business purposes (or preexisting FCC rules) require, and the government will query the specific records it needs with the approval
of the secret Foreign Intelligence Surveillance Court (FISC The two new proposals, however, envision the creation of a new
authority explicitly designed to duplicate the NSA program’s core capabilities without bulk collection. Phone companies would be
required to rapidly and continuously provide records for suspicious numbers and their direct contacts (yielding numbers two “hops”
from the initial suspect) in a consistent format, presumably to aid quick cross-referencing of records between different carriers.
Under Obama’s plan, the FISC would approve each request before it is sent to the phone companies. The HPSCI proposal,
sponsored by Reps. Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD), would instead have the court pre-approve
general procedures and criteria for designating numbers as suspicious, then review each specific request after the fact to
confirm that the government has evidence for its suspicions. Yet neither proposal truly attacks the underlying legal
basis for the program: A secret opinion by the FISC, which held that the authority under Section 215 of the
Patriot Act, which empowers the government to demand business records “relevant to an authorized investigation,” could be
used to seize entire vast databases, concerning millions of innocent people, in order to sift through them for a tiny fraction
of truly “relevant” records. The HPSCI bill at least seems to prohibit such bulk collection of all telecommunications records—along
with a few other sensitive categories of data, such as medical, library, or educational files. Press reports suggest that the White
House plan applies only to phone logs, leaving open the possibility that the government could revive its strained “relevance” theory
to seize other private information—such as credit card bills—in bulk. One other subtle but important difference is that the HPSCI
proposal employs a slightly different standard for obtaining phone records, which it’s not clear whether the White House proposal
also adopts. Under Section 215, records must be “relevant” to an “authorized” FBI counterterror or counterespionage investigation—
with records of suspected terrorists and their contacts deemed automatically relevant. The current NSA program, of course, allowed
collection of all records, and allowed analysis of second-degree contacts logs as well—but the FISC only allowed NSA to search for
numbers linked to a handful of specific terror groups under investigation. Rogers and Ruppersberger’s proposal covers records
linked to any suspected “agent of a foreign power”—something also allowed in principle by the underlying 215 authority—but
eliminates the required link to an “authorized FBI investigation.” That’s significant because FBI investigations require some specific
factual basis, which in theory should have acted as an additional constraint on the authority. One safeguard, for instance, bars the
government from obtaining records “for an investigation” of an American based exclusively on First Amendment protected activity—
but that becomes harder to police when no link to a specific investigation is required. The far more sweeping reforms of the
USA Freedom Act—which extend well beyond changes to records authorities— instead strike directly at the heart of
the government’s overbroad relevance theory. That law requires the government to show a specific link to
a suspected terrorist or spy for all information requests under all its myriad authorities —including National
Security Letters, issued without judicial approval by FBI agents, which appear to be left untouched by the newer proposals. It may
make sense to provide some novel hybrid authority, of the sort contemplated by the two newest proposals, to enable more
streamlined and agile acquisition of records from multiple phone carriers. But Americans should not be satisfied with
tepid reforms that fix one controversial program while leaving the underlying legal theory that spawned it
intact. Otherwise we’ll gain the illusion of increased privacy, even as the door remains open for the
surveillance state to launch yet another bulk collection program—with no Snowden left on the inside to
warn us about it.

CIA larger issue than the plan—it’ll keep escalating

Conor Friedersdorf, The Atlantic, 3/24/14, False Equivalence and the Feud Between the CIA and the
Senate, www.theatlantic.com/politics/archive/2014/03/false-equivalence-and-the-feud-between-the-cia-
and-the-senate/284596/

the Justice Department is involved in the dispute between Feinstein’s Intelligence Committee staff
But now that
and the CIA—deciphering whether the CIA violated the Constitution or federal law by searching Senate
computers, or whether Democratic staffers hacked into the CIA’s system to obtain classified documents—things have escalated to
an unprecedented level. What vexes me about how this dispute is being covered—not just in this Politico story, but in many media
outlets—is the false equivalence implicit in the juxtaposition: as if the CIA and the Senate committee stand accused of like
transgressions. If the charges against the CIA are true, our nation's foreign spy agency, which is forbidden from conducting any
surveillance in the U.S., snooped on our legislature. That's a transgression against our constitutional framework. If the accusations
against the Senate intel committee are accurate, its staffers, who have security clearances, obtained documents that the CIA ought
to have turned over anyway. Are we prepared to accept that, during a comprehensive congressional inquiry into torture, the CIA was
justified withholding torture documents? Senate staffers committed no great sin getting documents wrongly denied them. To its
credit, the Politico article quotes Majority Leader Harry Reid articulating some of these points about the separation of powers. But
the analysis next offered is the following:With no clear resolution in sight , Capitol Hill and the CIA are stuck in
the awkward spot of trying to maintain business as usual , when the reality is it’s anything but. “This is the
most serious feud since the Intelligence committees were established,” said Amy Zegart, a former National Security
Council staffer and senior fellow at Stanford University’s Hoover Institution. Most alarming, Zegart explained, is Feinstein’s
Senate floor broadside earlier this month against the CIA. The senator’s remarks broke from her well-established
reputation as a staunch defender of another wing of the intelligence community, the National Security Agency, amid scores of
Edward Snowden-inspired leaks to the media. “When someone who says they can be trusted now says they can’t,
it’s really bad,” Zegart said. Incredible. "Business as usual" is implicitly defined as the desirable state of affairs. And what's
deemed "most alarming"? Not CIA torture. Not the CIA withholding torture documents from a Senate investigation. Not the CIA
spying on Congress, or trying to intimidate oversight staffers with criminal charges for doing their jobs .
Bizarrely, the thing declared "most alarming" are Feinstein's words! By attacking rather than deferring to the CIA, she disrupted
business as usual. Her act of "saying" is emphasized as the important factor. Then a bit farther on: Feinstein and [CIA Director John]
Brennan are standing by their contradictory explanations of what happened in the course of the Democratic staff’s investigation into
the Bush-era CIA programs. Absent a meeting of the minds, some say the only way for the chairwoman to save face is for Brennan
to go. The article might have said, "Absent a meeting of the minds, some say the Senate intel committee should show its oversight
ability is intact by forcing Brennan to resign." Instead, the focus is on Feinstein's ability to save face, as if her face-saving itself—not
its implications for good governance—is what's important. Perhaps face-saving is what they're gossiping about in Washington,
D.C.? In the article's defense, it then goes on to quote former Representative Pete Hoekstra, who has a far more sensible analysis
of the stakes: "The real question it will come down to is whether Dianne Feinstein believes she can have a working relationship with
John Brennan. And if she believes that relationship is beyond repair and it’s going to be difficult to rebuild that trust between the
oversight committee and the CIA … then there’s really only one alternative. And that’s Brennan has to step aside." The reporter also
quotes House Intelligence Committee Chairman Mike Rogers: “Our oversight is alive and well and robust. That won’t change,”
House Intelligence Committee Chairman Mike Rogers said in an interview. But the Michigan Republican also warned that the
dispute needed to be resolved, and soon—otherwise there could be consequences. “I think if this doesn’t get handled right in the
next short period of time this has the potential of having other broader implications, and I hope it doesn’t get to that,” Rogers said.
“You don’t want everything to become adversarial,” he added. “The oversight will continue. If it’s adversarial or not, it will continue.
It’s always better when both sides agree to a framework on what will be provided; otherwise, it becomes a subpoena exchange, and
that’s just not helpful.” This is why the Tea Party should subject Rogers to a primary challenge: A man charged with overseeing the
CIA actually believes that the spy agency would agree to a framework where it voluntarily provided overseers with all they needed to
know! It's hard to say whether he's been co-opted or is staggeringly naive. The article goes astray again by putting forth the
following passage without rebuttal: In the absence of answers of what happened, several intelligence veterans said the Feinstein-
CIA dispute is taking up lawmakers’ limited oxygen supply on complex issues ranging from Snowden’s revelations about
government surveillance overreach to cybersecurity threats and tensions flaring in Ukraine, Syria, Egypt and other global hotspots.
Implicit in this treatment is the notion that CIA spying on Congress is a tertiary concern , a controversy
distracting us from more important issues. I'd argue that, if there's a limited oxygen supply in Washington, D.C.,
safeguarding the separation of powers and adequate oversight of the CIA is far more important than, say,
Syria. It is troubling, but unsurprising, that intelligence veterans think otherwise.

Ukraine overshadows everything

Justin Sink, the Hill, 3/20/14, Obama’s bully pulpit struggle, thehill.com/blogs/global-
affairs/russia/201333-obamas-bully-pulpit-struggle

President Obama’s reliance on the bully pulpit to bump up ObamaCare’s enrollment and hammer
Republicans in an election year is facing a serious challenge with the crisis in Ukraine.
The worst U.S.-Russia crisis since the Cold War is taking up a significant amount of the
administration’s oxygen , complicating the president's efforts to get his message out.
On Thursday, Obama sought to put the spotlight on higher pay for women, an election-year issue
Democrats believe they can turn to their advantage in November.
But his event in Orlando was largely overshadowed by his announcement earlier in the day of new
sanctions on Moscow, part of a showdown with Russian President Vladimir Putin.
The administration isn’t giving up its efforts even as Obama seeks to contain Russia, and the cross-
currents have led to some odd juxtapositions.
On Thursday, the day began with the release of a video of Obama joking with talk-show host Ellen
DeGeneres over her selfie at the Oscars, which broke Obama’s record for re-tweets. Obama’s
appearance on “Ellen” was meant to promote the healthcare law.
Hours later, a somber Obama announced new sanctions on Russia on the White House South Lawn, with
the Marine One helicopter as his background shot.
As Obama was speaking, ESPN Radio’s “The Herd with Colin Cowherd” was airing a previously taped
interview with the president in which he dug into his March Madness bracket.
In the interview, Obama also defended his appearance with comedian Zach Galifianakis on his “Between
two Ferns” Web series, noting Abraham Lincoln famously loved to tell “bawdy jokes.”
The hubbub over that video, released last Tuesday, drowned out a White House event with female
lawmakers designed to highlight the president’s election-year focus on women’s issues.
Still later on Thursday, Obama used the event at Valencia College in Florida to scold Republicans for
opposing the Paycheck Fairness Act.
The commander in chief was replaced by the campaigner in chief, who called on the GOP to “join us in
this century” and pass the legislation meant to ensure women receive equal pay for equal work.
Obama also called on lawmakers to raise the minimum wage.
After concluding his remarks, Obama was rushed back to Air Force One for a short trip to Miami, where
he plans to attend a fundraiser Thursday night at the home of former Miami Heat star Alonzo Mourning.
None of this is wildly out of order for a modern presidency in which the leader of the free world must
balance state dinners with appearances on “The Tonight Show.”
But recent events have provided an extreme example of the tightrope Obama must walk.
1AR
 case
No uniqueness for cia shift
Schmitt 1/16/14 (Eric, NYT, “Congress Restricts Drones Program Shift,”
http://www.nytimes.com/2014/01/17/us/politics/congress-restricts-drones-program-shift.html?_r=0)
WASHINGTON — In an unusual move, Congress is placing restrictions on the Obama
administration’s plan to shift responsibility for armed drones more toward the military and away from
the C.I.A., congressional and administration officials said Thursday. Lawmakers inserted wording into a
classified annex to the $1.1 trillion federal budget approved by Congress this week that would make it
more difficult to transfer control over the drone campaign or the authority to carry out strikes. The scope of
the restrictions remained unclear because of their classification. But the provision does not appear to
entirely block a shift described last May by administration officials as a ramification of President Obama’s
intention to move the country off a decade-long war footing . Lawmakers allowed the president to waive
the constraints under certain circumstances or to permit the transfer if the administration certifies that the
military meets certain standards in drone operations, congressional aides said Thursday. Senator John
McCain supports the Obama administration’s plans to shift responsibility for drone strikes to the military.
Yuri Gripas/Reuters Even before the new provision in the budget bill, administration and congressional
officials said the schedule for shifting control to the military was being revised — if not shelved. “D.O.D.
has some work to do,” a senior House Intelligence Committee staff aide said Thursday, referring to the
Department of Defense. “It’s a lot more challenging than they thought.” But the measure, first reported on
The Washington Post’s website on Wednesday night, is a rare move by Congress to dictate how covert
operations like the drone program are carried out. It also reflects the simmering suspicion among many
lawmakers on the Intelligence Committees that the military’s Joint Special Operations Command is not up
to the task of killing terrorism suspects with Predator or Reaper drones, a notion the Pentagon rejects.
That skepticism was underscored on Dec. 12, when a strike by the United States military, launched from
a base in Djibouti, killed at least a half-dozen innocent people in Yemen, according to a number of tribal
leaders and witnesses, and provoked a storm of outrage in the country. The murky details surrounding
the strike have raised questions about how rigorously American officials are applying the standards for
lethal strikes that Mr. Obama outlined in a speech on May 23 at the National Defense University — and
whether such standards are even possible in such a remote and opaque environment. At the time,
administration officials said that authority over most of the drone strikes would gradually shift to the
Pentagon from the C.I.A., a move officials said was intended partly to lift the shroud of secrecy from the
targeted killing program. But nearly eight months later, the C.I.A. still carries out a majority of drone
strikes in Yemen, with the remotely piloted aircraft taking off from a base in the southern desert of Saudi
Arabia. Spokesmen for the White House, the C.I.A. and the congressional committees responsible for the
language declined to comment on Thursday. “The president when he spoke at N.D.U. was very clear
about his desire to be as transparent as possible with respect to those operations,” Rear Adm. John
Kirby, the Defense Department press secretary, told reporters on Thursday, declining to discuss the
specific congressional provision. “That’s a message that we got loud and clear here in the Pentagon.”
That is a sentiment shared by many on Capitol Hill. Senator Patrick J. Leahy, a Vermont Democrat on the
Appropriations Committee, told MSNBC on Thursday, “There should be far better control of what we do
with our drones.” The measure has also laid bare a spirited debate among rival congressional committees
and their senior members, for jurisdiction over the armed drone operations in the coming years. Also at
issue is whether the spy agency should maintain a role in lethal counterterrorism operations or return to
its traditional intelligence-gathering focus. The House and the Senate Armed Services Committees, with
oversight of the military, have generally backed the administration’s plan. “I believe the majority of the
responsibility for this should rest with the military,” Senator John McCain of Arizona, a senior Republican
on the Armed Services Committee, said last year. “The majority of it can be conducted by the Department
of Defense,” Mr. McCain said. “It’s not the job of the Central Intelligence Agency. It’s the military’s job.”
But members of the Intelligence Committees say the bulk of the program, including the longstanding
though diminishing operations in Pakistan, should stay with the C.I.A. because the agency has developed
the most accurate information for targeting terrorism suspects — and generally avoiding civilians. Senator
Dianne Feinstein, a California Democrat who is chairwoman of the Intelligence Committee and a member
of the Appropriations Committee, said last year that she had seen the C.I.A. “exercise patience and
discretion specifically to prevent collateral damage” and that she “would really have to be convinced that
the military would carry it out that well.”
 clarity key
Clarity key to law of war
Laurie Blank, Director, International Humanitarian Law Clinic, Emory Law School, 2/25/ 13, Learning to
Live with (a Little) Uncertainty: The Operational Aspects and Consequences of the Geography of Conflict
Debate, papers.ssrn.com/sol3/papers.cfm?abstract_id=2224088&download=yes

A central focus of debate for more than a decade has been how to apply LOAC to conflicts with terrorist
groups—from how to define the conflict to how to implement the principle of distinction to the content of
law of war detention. The very application of LOAC to military operations against terrorist operatives or
groups depends, as the essential preliminary consideration, on the existence of an armed conflict.19
Notwithstanding the complexities of these determinations in the context of efforts to combat transnational
terrorist groups, LOAC continues to rely on clear and objective standards to assess when the law
applies. Effective implementation of LOAC depends on the clarity of the legal principles , their
application during the heat of battle, and their credible application post hoc in investigations and
prosecutions. Moreover, commanders and their troops can best adhere to the law and carry out its central
tenets when the law and the obligations it imposes are predictable and operationally logical.
 At: terrorism

NSA useless
Stephen Walt, 11/4/13, NSA Spying: Where's the Beef,
www.foreignpolicy.com/posts/2013/11/04/nsa_spying_wheres_the_beef

this activity? With each week, it seems, we learn more about just how active and energetic the NSA has
been. They've spied on our enemies, they've spied on our closest allies, and they've spied on us. The
NSA's defenders have made various claims about thwarting terrors plots and the like, but these claims
don't seem to stand up too much scrutiny. I repeat: Where are the big foreign policy and national security
gains that we're reaping from this work?
As a realist, I'm neither surprised nor horrified to learn that governments spy on each other, or that a
wealthy, powerful, self-important, and slightly paranoid country like the United States might...ahem...do a
bit more of it than others. But this unthinking, unstrategic Hoovering of data, megadata, and actual
conversations is obviously out of control, and the diplomatic and other costs could easily outstrip any
putative benefits.
In particular, given our capacity and willingness to spy on virtually everyone, you'd think that American
diplomats would be entering foreign policy contests and diplomatic negotiations with an enormous
advantage over their counterparts. If we're as good at extracting private information from other countries'
networks, cell phones, emails, and the like, you'd think U.S. officials would usually have a good idea of
our antagonists' bottom line and would be really skilled at manipulating them to our advantage. We now
know that the Allies in World War II got big strategic benefits from cracking German and Japanese codes;
I want to know if we're getting similar benefits today.
It is hard to believe we are, given that America's foreign policy record since the end of the Cold War is
mostly one of failure. And that leads me to suspect that one of two things is true. Either 1) the NSA is
good at collecting gazilla-bytes of stuff but not very good at deciding what to collect or figuring out what it
means, or 2) the rest of our foreign policy establishment is not very good at taking advantage of the
information the NSA has worked so hard to acquire. In other words, either the NSA is not worth the
money we're paying for it, or the rest of our foreign policy establishment is less competent than we
thought. To be frank, I'm not sure which possibility I prefer.
There is a third possibility, of course: The kind of information that the NSA is good at getting isn't that
useful for most policy problems. They collect it because that is what they are able to do -- like the
proverbial drunkard looking for lost keys under the lamppost "because that's where the light is " -- but the
overwhelming majority of it doesn't really aid our foreign policy (or our counterterrorism efforts) very
much. One might say the same for the vast majority of stuff that the U.S. government now classifies.
Which raises the worrisome question of whether we are unwittingly laying the groundwork for a much
more intrusive authoritarian state without getting much compensating benefits.
 1ar – Uq o/w

No opposition to reforms---disproves the time link since it’ll be easy

Shane Harris, Foreign Policy, 3/25/14, Spying Reform's Big Winner? The NSA,
complex.foreignpolicy.com/posts/2014/03/25/spying_reforms_big_winner_the_nsa

In the near term, that fight will center on the role of the judicial branch in approving the government's
requests for access to the phone records. The administration's plan would have each query approved by
the Foreign Intelligence Surveillance Court, the body that has the most experience reviewing government
spying.
But a bill proposed Tuesday by Reps. Michael Rogers (R-Mich.) and C.A. "Dutch" Ruppersberger (D-
Md.), the chairman and ranking member of the House Intelligence Committee, would allow the
government to direct phone companies to turn over their records. The surveillance court would get
involved on the front end, approving "selection procedures" to ensure the government was only gathering
information associated with terrorists and other valid foreign intelligence targets. The government would
also have to submit the evidence supporting its request to the court -- but only after it was collected.
The role of judges is becoming the flashpoint in crafting a final resolution to the phone records program.
But the two sides are coming together . In a press conference Tuesday, the lawmakers emphasized
that their proposal was for the most part closely aligned with the administration's plan. Rep. Adam Schiff
(D-Calif.), who earlier this year introduced his own bill to restructure the NSA program, called the White
House plan "a very important step forward toward reform" and said it would protect Americans' privacy
interests while still allowing intelligence agencies to gather the information they need "to gather the vital
information they need to protect the public." The path is clearing for Rogers and Ruppersberger.
Key senators are also coming around to the White House proposal. Mark Udall (D-Colo.), one of the most
steadfast opponents of the NSA, and Dianne Feinstein (D-Calif.), the chair of the Senate Intelligence
Committee, both signaled their general approval of the administration's plan to keep the records housed
at phone companies and said they were ready to work with the House and the administration to iron out
the details.
There is a third proposal on the table, a bill that would go farther than the other two by banning all forms
of bulk data collection on Americans, including financial and business records, and requiring that any
records requests be made pursuant to an investigation. That's a far higher standard to meet than the
"reasonable articulable suspicion" that the NSA currently uses to query the records of Americans whom
might be tangentially connected to terrorism.
The bill has broader support among civil liberties advocates than the White House proposal or the Rogers
and Ruppersberger legislation. But its prospects are already looking dim. On Tuesday, one of the bill's
cosponsors, Rep. John Conyers (D-Mich.), signaled that he was looking for some common ground with
the White House and House lawmakers. Conyers praised Obama's "commitment to ending bulk collection
and reining in dragnet surveillance programs." And he said Rogers and Ruppersberger had "also joined
the consensus that bulk collection of telephone metadata must end."
Ending that bulk collection is precisely the outcome that Snowden had hoped to bring about when he
disclosed the program in June 2013. And while opponents of the phone records program said important
details remain to be sorted out -- including the role of judges in approving surveillance orders and how
broadly the prohibition on bulk records collection will be applied -- it was clear that a consensus had
formed around ending the phone records program in its current form. That becomes the starting point for
the next phase of debate, but it's also a finish line for the previous one.

Differences will get worked out

Julian Sanchez, Daily Beast, 3/25/14, The Best NSA Fix Comes From the Patriot Act’s Author,
www.thedailybeast.com/articles/2014/03/25/the-best-nsa-fix-comes-from-the-patriot-act-s-author.html

Take a victory lap, Edward Snowden. Last summer, the White House and congressional intelligence
committee leadership were unified in their insistence that the National Security Agency’s bulk collection of
American telephone records was an essential intelligence resource that had prevented scores of terrorist
attacks. As spring dawns—with those claims shredded by two expert panels—the only disagreement is
over precisely how to end the controversial NSA program, with three main proposals now vying for
legislative support.
The two being unveiled this week—bipartisan legislation sponsored by leaders of the House Permanent
Select Committee on Intelligence (HPSCI) and a plan supported by President Barack Obama—are quite
similar in their broad outlines but differ in a few key details. Neither, however, goes quite so far in limiting
the NSA as the USA Freedom Act, sponsored by Senate Judiciary Committee Chair Patrick Leahy (D-VT)
and born-again Patriot Act author Rep. Jim Sensenbrenner (R-WI).
 1ar – Ukraine

Aid package was a lose for Obama

Stacy Kaper, National Journal, 3/25/14, Democrats Just Lost the Fight Over Ukraine Aid,
www.nationaljournal.com/congress/democrats-just-lost-the-fight-over-ukraine-aid-20140325

The fight over a controversial piece of the Ukraine aid package is over: Republicans won . Senate Majority
Leader Harry Reid conceded defeat Tuesday, announcing during a press conference that he will not push for a provision that
would have bolstered the International Monetary Fund's ability to lend to countries in times of crisis. The White House supports the
change, but Senate Democrats were divided over whether to fight for it. Reid framed Democrats' capitulation not as an
agreement with the Republican stance, but rather as making the compromise necessary to move the measure forward quickly. The
Senate, which took steps Monday toward considering legislation that included changes to the IMF, now plans to vote Thursday on
an amended bill stripped of any IMF reforms. "It appears we have a way to move forward on Ukraine," he said. "Hopefully we can do
that today, if not tomorrow at the latest." The writing was on the wall for Democrats earlier Tuesday. With pressure to
provide quick relief before Russia seizes more of Ukraine, it became clear that Senate Democrats were fighting a
losing battle, as unity on the issue began to fray . "Take it out," said Sen. Mark Begich, ahead of the Democrats' weekly
lunch. "Let's get on with dealing with the Ukraine and focus on working on that issue. We can have a reform discussion later on."
House Republicans, meanwhile, barreled ahead on the issue, as the Foreign Affairs Committee on Tuesday approved a
bill that does not include the White House's requested change to Washington's IMF contributions. And following Reid's speech,
Republicans were quick to declare victory.

Spills over to the domestic agenda

Frank James, NPR, 3/18/14, Obama's Foreign Policy: More Second-Term Misses Than Hits,
www.npr.org/blogs/itsallpolitics/2014/03/18/291192868/obamas-foreign-policy-more-2nd-term-misses-
than-hits

Second-term presidents who find their ability to shape domestic affairs limited by congressional
constraints often view foreign policy as the arena in which they can post some successes. Ronald Reagan had his
second-term breakthrough with Mikhail Gorbachev, the Soviet Union's general secretary. Bill Clinton had the U.S. lead its NATO
allies into taking military action against the Serbian government of Slobodan Milosevic. Much further back in time, Woodrow Wilson
successfully negotiated the League of Nations Treaty (though he couldn't win Senate passage for it). But in the sixth year of his
presidency, foreign policy appears to be giving President Obama more fits than achievements. Russian President
Vladimir Putin has flouted Obama's warnings against Moscow recognizing Ukraine's Crimea region as sovereign or
keeping Russian troops there. And that was after the president's credibility had already taken a hit for retreating from
his red-line warning to Syrian President Bashar Assad. If that wasn't enough, there was the Egyptian military's
defiance of Obama's calls for it to respect the democratic process that led to the election of President Mohammed
Morsi; the Egyptian military ousted and arrested him anyway. That's not to say the Obama administration hasn't made
foreign policy progress: The U.S. and its fellow U.N. Security Council members plus Germany have gotten Iran to the negotiating
table again in the hope that an agreement can be reached that would further slow Iran's development of nuclear weapons. And
Secretary of State John Kerry is also facilitating a new round of peace talks between Israeli and Palestinian negotiators. But there
are long odds for success on the Iranian and Israeli-Palestinian fronts, which leaves Obama's overall management of foreign policy
open to criticism from many directions — , the 2012 Republican presidential nominee. One problem Obama faces is the expectation
that a U.S. president can actually "manage" what happens elsewhere in the world. Obama may have contributed to such heightened
expectations himself with his administration's talk of a "reset" of U.S. relations with Russia, not to mention the rest of the world. "It
fits into the historic perspective in that foreign policy is not the kind of issue that is easy to control," Julian Zelizer, Princeton
University professor of history and public affairs, told It's All Politics. "In November, it could be the kind of issue that seems to bring
you praise, that seems to demonstrate how good you are as a leader. "Then, one month later, it's easier for events to spin out of
control in a way that isn't true of domestic policy," Zelizer said. "Russia is a great example. It's a country, a situation that is in many
ways beyond his grasp. At this point, there are limits to what he can do and what the U.S. can do. But because of
how it unfolds, it hurts him, it hurts his image. ... That's where it plays into domestic politics."

GOP exploiting it
Stephen Walt, Harvard IR Professor, 3/18/14, The Solve-Everything, Do-Nothing White house,
www.foreignpolicy.com/articles/2014/03/18/the_solve_everything_do_nothing_obama_white_house

At the moment, U.S. foreign policy is in considerable disarray, and the vultures are circling the White
House. Hawkish critics such as John McCain, Condoleezza Rice, and Niall Ferguson are lambasting
Obama for his alleged "weakness" on Ukraine, Syria, Benghazi, or whatever -- even though their main
complaint seems to be that he isn't willing to repeat the same costly blunders they either made or
supported in the past. Still, the New York Times's David Sanger wonders if Obama's more restrained
approach to running the world has reached its limits, and he quotes one former Obama aide saying "we're
seeing the 'light footprint' run out of gas." And Tom Friedman thinks Obama can't decide if he's Pollyanna,
John Wayne, or Henry Kissinger (as if these are the only options).