Monday, May 03, 2010

A piece from Volokh you ought to read

on the targeting of Taliban and other terrorists with drone strikes. Couple of excerpts on where he thinks a lot of this is going:
Just to be crystal clear this time, I don’t think these CIA actions are international or domestic crimes. But the view of the administration, which I think generally legally correct, and that of its critics such as Professor O’Connell, really can’t be reconciled. And if you think it is a matter of international crimes (as, I stress, I don’t), then it doesn’t go away even if the Obama administration decided tomorrow to change course. It has undertaken hundreds of these strikes now, over a series of years; give it a couple of years more until it’s no longer President Obama, and then call it “crimes against humanity.” After all, why not, once the political costs of attacking Democrats, with the genuine intent of finding criminal liability, is gone?

If the stakes are raised, as is currently underway by the soft-law community, to the level of serious allegations of criminality, then the Obama administration now finds itself at the beginning of the process that the Bush administration found itself in regarding detention, interrogation, and rendition. The ACLU is like a dog with a bone; following the relentless logic of collective action coordination failures, it will remain relentlessly focused, gnawing away, and those it seeks to play will be diverted and disorganized in their responses. Death by a thousand paper cuts, I think I wrote in the Weekly Standard. I am as ever stunned by the ability of government officials to think that the advocacy soft law community does not have the ability to set the agenda.
The game played by human rights organizations of what I have sometimes called “serial absolutism” is a special case in game theory of serially “moving the goalposts,” which in turn is a special case of serial insincere promising (these are the absolute, unshifting standards, we really, really promise this time!!), serial insincere promising about the procedural and constitutive rules of the game, followed by serial defection (whoops! it’s really crimes against humanity, now that the Republicans are in). ‘Moving the goalposts’ does not get enough attention in the iterated game theory literature, I think. Unstable coalitions in domestic politics — leftwing Democrats aligned with various foreign and international constituencies, “gaming Spain,” as I’ve sometimes called it — prevent a unified American government from recognizing the pattern of repeat defection and trust-breaking and therefore refusing to take the promise seriously.

Thus, the advocacy groups start with the Obama administration, establishing their bona fides so no one can say that they weren’t even-handed, even though they know that it will only become real, a campaign that ripens into a real chase against individual lawyers, officers, and agents (probably starting with any easy-to-cut-out-from-the-herd military contractors), undertaken and underwritten by a concerted NGO campaign, ratcheting up to a crescendo a couple of years into the next Republican presidency. The only way to slow this down is by creating a policy and considered legal views in the Obama administration that can set a stable precedent for those administrations, Republican and Democrat, that follow.)

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