 So welcome to our first panel. This is on the rule of law foundations for US counterterrorism policies We have an extraordinary group of speakers. I'm going to introduce them very briefly in the order in which they will speak Peter Bergen who needs no introduction here. He's a vice president at New America He's probably the country's leading authority on counterterrorism and Al Qaeda in particular But Islamist terrorism his books are extraordinary. I highly recommend them for reasons. You'll see in a moment Hina Shamsi is the director of the AULU national security project and a leading civil libertarian critic of administration's policies and her shop has done much of The most important among the most important litigation challenging Two administrations counterterrorism policies Benjamin Wittes senior fellow governance studies at the Brookings Institute and the co-founder of lawfare the national security site Where I sometimes hang out as well And then it was his most recent book is called the future of violence robots germs hackers and drones So this is a great panel. We're gonna start with Peter. They're gonna speak for about 10 minutes each I may ask some questions and then we'll open it up Thank you very much professor Goldsmith and so I'm not a lawyer. So I won't pretend to speak to the legal issues in detail, but It seems to me there are several things the new president could do first of all as Professor Goldsmith Talked about in his opening remarks Begin a real discussion about the authorization for the use of military force it as everybody knows in the room We've had this AUMF for the past decade and a half. It's Authorized military operations and very seven Muslim countries so far and other smaller operations that are to get very little Publicity as professor Goldsmith outline now the chance of an AUMF passing in Congress is pretty pretty low But still a public discussion. I think is worthwhile and particularly if Hillary Clinton wins She takes the Senate then the discussion has more valence second idea The Obama administration in the last several weeks who may recall released data about drone strikes now It was pretty vague. They talked about a hundred civilian casualties it was hard to kind of score the extent to which this was Really legitimate because there was no detail about where these strikes have taken place or what all their dates And it certainly doesn't accord with the research that we've done at New America where we found that under the Obama administration Somewhere between 200 and 300 civilians are being killed, but at least it's a good start And the next administration should continue this and another dimension of this Which didn't get a lot of attention is if you every day I get a like many other people in this room I get a press release from Sencom and I suddenly noticed in May that Sencom was admitting in a press release that it was taking drone strikes in Yemen and I think this is part of a Also a good start which is migrating the CIA drone program into the Department of Defense Which by its nature is a more transparent organization Another idea here. I think the next administration I think should not follow I think a very worrisome trend in the Obama administration, which is witch-hunts against Whistleblowers effectively. I mean Thomas Drake of the NSA had a very legitimate critique of the NSA and the way it spent money and Spent many years and you know Basically under threat of going to prison and there are many other examples most recently General Cartwright. I don't necessarily I don't know enough about The circumstances of what he said at the Times was he confirming things they already knew But it seems that this administration is everybody in this room is well aware is that you know It's the most aggressive in this area of any administration in American history, and I think this is not a good development And one other example sort of related Robin Rayfield may recall was the ambassador to Pakistan She was a subject of she was never even interviewed by the FBI. She was essentially tried in the New York Times And had a year and a half. That's basically all her Savings went in an effort to defend herself against something which turned out to be nothing which is another example of this administration overreaching Another idea that the next president should should push is if you're on the no-fly list, you shouldn't be allowed to buy guns In many of the lethal attacks in this country Carlos Bledsoe killed an American soldier and little rock Arkansas Omar Mateen who killed 49 at the Orlando nightclub and Major Nadal Hassan who killed first in Fort Hood Each one of those people was known to the FBI in one shape or form and legally purchased Semi-automatic weapons that they use in these attacks. There was simply no reason that this should be allowed to continue A no-fly zone in certain northern Syria as we've seen You know their costs as Andrew Professor base of it points out Obviously some of our interventions have gone well, but there are also costs are not intervening at times And we've run a controlled experiment of what non-intervention looks like in Syria with 14 million people Refugees and up to 500,000 people dead a no-fly zone in southern Syria Syria in northern Syria Why wouldn't we try that and of course with all the usual caveats that you know, though It'll be somewhat it may not be easy to do as it was in in Iraq in the 1990s But that said, why don't we try it and interestingly President Hilary Clinton Had been talking about a no-fly zone and then stopped talking about it for several months And then recently mentioned again in the second presidential debate. I hope that we we implement such a No-fly zone in Afghanistan. We've had a enormously I think kind of productive policy of saying we're leaving every six months now We're not leaving and I don't think we're going to leave in the foreseeable future and we've we've When President Obama, for instance Announced the surge of triple the number of troops in Afghanistan when he went to West Point on December 1st 2009 He also said we're withdrawing in 18 months. The news became not that we're surging up to 90,000 troops The news became we're leaving and this has been a very kind of productive policy We actually have a strategic partnership agreement with Afghanistan till 2024 and we should the next president should say we are going to Be around for a while. We have no plans on a pulling out that will do a lot to help the confidence of the Afghan government and people That the Taliban is not going to roll into Kabul I Was heartened to see that the National Security Division at At the Department of Justice has in the last year or so created a new role for a domestic terrorism Because in all the kind of discussions we have about this jihadi terrorism is certainly an issue, but it's not really readily speaking an enormously big issue in terms of American national security concerns 94 Americans have become killed by jihadi terrorists in the United States since 9-11 At the same time 48 right wing neo-nazi terrorists have killed people in the United States and it's a live issue that deserves attention Final two ideas We should Declare that our electoral processes are part of our critical infrastructure and that if people hack the Entities hack the RNC or the DNC or local government offices involved in elections that we will respond With a proportionate response to make that official US government policy And one final idea. There is no reason why Isis continues to pump out propaganda through its various production facilities and news agencies and Through either electronic warfare or other beings. We should basically take these groups out of business Thanks, Jack and good morning everyone I thought I'd begin by Talking about a couple of general sort of thoughts or concerns with respect to why our rule of law Foundations in the national security context are not as strong and in fact are rather shaky and then talk about three specific areas one in which Which I think sort of illustrates my concerns another in which my concerns are sort of being borne out And I'm worried that they're going to get worse Anticipation building up I hope and one which I think shows how things might improve because in the end I'm an optimist So let me start with the sort of general areas of concern And I think they go to what do we think about when we talk about the rule of law, right? We think about laws that are known a system of checks and balances a set of accountability Mechanisms, and I'm not just talking prosecution, but sort of public accountability mechanisms that allow Us to hold the people who we elect accountable to us And here's where I think in the last 15 years things have broken down a fair amount one is Let's just look at this institutionally, which is the perhaps unsurprising in times of real and perceived threat a cruel of executive-branch power and what that has meant now under both the Bush and Obama administrations and again, I'll say this is a general point recognizing that there are caveats But I think generally speaking we have had assertions of legal authority to engage in war To kill to surveil asserted in extremely broad and vague terms With laws that are often or interpretations that are often entirely or largely secret and I think about this as articulation of a general set of principles and commitments to the rule of law which have within them a built-in ambiguity and a built-in Flexibility for the executive branch now again, we may think that that's not so surprising but what does that look like more specifically also as a sort of general matter the constraints that are recognized by the executive branch are Articulated often largely as a matter of policy not as a matter of legal obligation and that matters There is a claim that accountability comes not necessarily through the courts which Executive branch officials argue either have no role or must play a very deferential role But instead through internal executive branch processes That build upon or based upon the ethics and morality of good people working within government which may very well be true I know very many good people working within government, but isn't quite the kind of public accountability that we think of and then sort of the Grabbing of power You'll see how I think of it in the face of I think dysfunction largely by the other two branches I'm not going to spend too much time on this but Congress as we all know has often been largely dysfunctional for many many reasons AUMF I think is an area in which we need the Congressional branch to weigh in but it hasn't and even when Congress acts Especially in the national security context its ability to exercise meaningful oversight is also constrained by secrecy the judiciary I think has largely Perhaps not entirely but largely failed to act as a constraint on some of the most excessive claims of executive branch power Often agreeing that judicial doctrines of immunity or secrecy preclude him from even weighing in now some such as my friend Ben may claim that this as an institutional matter leaves a set of Sort of agreed upon principles But what I posit to you is that actually Congress hasn't really meaningfully acted and neither have the courts Three quick areas in which I think all of this is playing out one global war paradigm approach and targeted killing policy Broad authority to kill Unclear assertions of where that authority is coming from because of a reliance on Potential alternatives. Are you relying on the AUMF or article to authority? Are you relying on self-defense or some other context and what has happened here? I Throughout to you is that the executive branch has cherry-picked the most permissive aspects from a number of legal frameworks while minimizing or ignoring or Violating the restrictive aspects that place constraints on the authority to take lethal force both in the context of actual armed conflict and outside of it and that I think is a dangerous proposition for any President including I'm concerned for the next one. Although I will say I'm not going to talk about Donald Trump in this because as I think was said earlier all bets would be off But I do think that there's some room to think about where Hillary Clinton should be she be elected might approach this because one of the Things that hasn't happened with effective congressional oversight is a real accounting of the strategic and human costs of this approach It's something that Hillary Clinton talks about in her book and whether she's willing to actually look at the Strategic human and rule of law costs for an articulation of policy that is so broad and without so many constraints Will I think be? Critical and I'm happy to talk more about where we are on Target killing in second and Very quickly the second area. This is an area in which I don't think enough people are paying enough attention countering violent extremism programs That have been talked about by the Obama administration as a national security priority of the United States We know far too little about what is meant by terms like violent extremism or extremism or Radicalization these are terms we all use in day-to-day usage But when their programs and polity sees that are being implemented Depending on calls to address each one of these things then I think we have some real issues One particular area of concern is you know I hope everyone recognizes that when we're targeting minorities religious on the basis of religion race Ethnicity that's wrong. That's unequal. That's poisonous, but that's actually what the Obama administration has been doing through CVE policies and related issues including the FBI sort of exhorting school principals and schools to identify kids at risk of extremism and report them That's a very broad concept the examples used in the guidance that is given is Virtually all targeted towards Muslims I'm going to touch very quickly on something that Peter said because I hope we can have a bit of a discussion on it Peter talked About watch lists and not being able to put by guns if you were on the no-fly list I Was unexpectedly caught up in some of that controversy when it it came up And all of a sudden found allies that we've never had before who were concerned about due process in The no-fly list and watch list context, but here's the thing we can all We can agree, you know that perhaps there should be reasonable regulation of guns the watch list system is broken in litigation that we filed Against seeking better redress process the government admits that it is seeking to Predict when people who have not been charged let alone convicted of a crime might nevertheless engage in violence in the future We might all agree that prevention is a worthwhile estimable and Difficult goal, but if you're going to use prediction using vague and overbroad criteria on the back end You knew due process so that people who've actually not done something wrong can say And I haven't done anything wrong But that just simply does not exist under the watch list redress system today where information is denied reasons are denied basis For evidence is denied Final area in which I think that there is some room for hope torture As you know torture began to end and was ended under the Bush administration Categorical bans by the Obama administration the Obama administration committed to looking forward not backwards a policy that has resulted in the lack of meaningful criminal investigation of top-level officials, but some of that and and No merits adjudication on for victims of torture some of that is beginning to change And that is because in large part Congress weighed in conducted a landmark investigation. I think a generational investigation The at least the executive summary of the Senate Intelligence Committee's report was made public There was a level of debate and discussion that was Excellent I think for this country and continued on debate and discussion that has been addressed and most recently in our lawsuit against the two CIA contractors who developed and implemented the CIA's torture program Unlike virtually every other case the judge has said this case can be litigated It can be adjudicated The government is a party in interest. It is it has not invoked the state secrets privilege It is providing information to the parties that has not otherwise been made public and The judge has ordered that former high-level CIA officials can actually be deposed in the litigation which is coming up trial is June 26th. I'm happy to talk about any of that so This has been very very stayed and professional and I'd like to open with a couple jokes Just a light liven things up my my former research assistant whom some of you know Cody Poplin Had two Just spectacular. I think they were New Yorker cartoons. I'm not sure where they were from on his door at Brookings Both of which seem relevant to in different ways to the subject that we're discussing today The first of them is two medieval armies Lined up all decked out in armor Facing each other across a field and one of them has a banner with a bunny rabbit on it and the other has a banner with a duck on it and the caption just reads There can be no peace until they renounce their rabbit God and accept our duck God and somehow that Particularly for reasons I will get to I think that's a key as Woody Allen would say a key joke in our current situation The second one is an image of the constitutional convention will be this will be more obvious why it's relevant image of the constitutional convention and a bunch of guys standing around with wigs and the caption reads and of course the executive branch we should give the executive branch the power to reign death from the skies, right and So I think the the The key words in that Are not rain death from the skies there of course and We have a way of talking about these authorities as though they're contested and We're really arguing about them and what I want to say is that we're actually not and they're not We are have reached a point of remarkable consensus About and I'm going to get to a couple big caveats about this consensus about the parameters of the rule of law foundations for American operations overseas and domestically for that matter The consensus began to develop in the Bush administration it has sharpened over the course of the Obama administration and While there are dissenters from it about which I will talk momentarily it is quite a strong consensus and and In an increasingly looks to me like a rather durable one So I want to go through if I can Certain elements of that consensus and try to illustrate what I think are its strengths and then come back to what I think are the two major dissents from this consensus and I Want to stress that I am in no way drawing any kind of moral legal or intellectual equivalency between them But one out of deference to my friend to my right I will call the Hineshansi dissent right which is sort of the the left civil libertarian Descent from from the contemporary consensus and the other is Which has the wrinkle of being represented principally right now by the Republican candidate for president is the Trump Trumpist consensus the Trump dissent from the consensus So all right. What is this consensus? The first element of it is that the AUMF is good enough or If it's not good enough, we don't care if the president relies on article two Now I personally care very much if the president relies on article two But and Jack and I and some other people wrote a draft AUMF to try to try to put this thing on a more serious legal footing We lost this debate The Obama administration Continues to conduct the operation that's that it wants to conduct under the AUMF with some article two backing And the only criticism that it's getting in the real world leave aside law professors leave aside It you know human rights groups the only criticism it's getting in the real world is whether its operations are aggressive enough Okay, so that's the reality of the AUMF debate Would I like to see us on a different legal footing? Yes, are we going to be maybe will it affect us counterterrorism? operations if we are no number two surveillance The Bush administration sought and received The Protect America Act This evolved six month eight months later with Barack senator Obama's support by the way into the FISA amendments act For all the Snowden revelations The framework has basically not fundamentally changed there were changes to the 215 program and some additional Transparency mechanisms put in place in the USA Freedom Act this coming year 2017 that is The FISA amendments act will be up for reauthorization and guess what folks it will be reauthorized It's going to happen because there is in fact a broad-based consensus about the parameters of and necessity of section 702 authorities Element consensus number three We used to argue about detention the lawfulness of detention. We don't argue about it anymore I mean some people do but by and large the the only question is should we close Guantanamo and do certain Detentions elsewhere should we do more detention or less detention? We're doing detention element of the consensus number four you can try people in Federal courts and that's okay for terrorism offenses you can also try people in military commissions and that's okay Now this is a somewhat contested matter still military commissions are not performing Well, some of us who once believed in them are less Enthusiastic than we used to and I would love to see Congress Lift certain transfer restrictions to allow more people to be tried in federal court, but is there a fundamental? Legal obstacle to bringing somebody to trial in a military commission right now the answer is no I could go on and I could actually go on and on and on but the reality is that Most of the operations that we conduct are not actually that legally contested and To the extent that they are they're contested mostly in academic forums and in forums like this The courts as in the notes have largely stayed out of operational questions And so I will say that from the center left through the Through quite further than the center right there is a broad operational consensus about what's lawful to do There's much less consensus about what's wise or a good idea to do But there's a very broad consensus about what's lawful to do Now I want to suggest that there's two major Desents from this consensus now one of them is is as I say the the left descent and With all due respect to Hina. I want to say this is at this point a weak dissent Not weak in the sense of being like you know Not having elements of intellectual cogency or whatever but weak in the sense of it is not succeeded for a long period of time in Fundamentally reorienting us operational capacity in a direction that comports with its vision of the law and I see no reason to expect in a in a Hillary Clinton administration that it will Hillary Clinton is a Deep believer in the current consensus that I describe and I See no reason to see any to expect anything other than continuity within that consensus if she becomes president that said the the this dissent is a powerful intellectual and Set of anxieties and legal anxieties about what we're doing I just don't want you to think that it actually will govern It is likely to govern the way US counterterrorism operations are in fact conducted now in the last year we have there's always been a Right-wing dissent from this as well that we're you know, we've tied the hands of our operators We need to loosen up so that they can win this Idea has been around for a while really at least since the beginning of the Obama administration It is however, I think it's fair to say like really taken on a different life with respect to Donald Trump and You know, I do think when a political candidate Talks openly about the list of things that he's talked about openly including torturing Frank torture not not you know, he talks about going way further than waterboarding so sort of you know The Bush administration always denied that it was engaged in torture and made legal arguments that it was not He does not want to do that He wants to acknowledge that we're engaged in it and greatly expand the list of things that are available He also wants to go after terrorists families now. What exactly he means by that is a is a really interesting I suspect he hasn't really thought through what he means by that but And he talks about you know carpet bombings He talks about all sorts of things that are you know, frankly and pretty clearly in the Department of War crimes And so I think one of the weird wrinkles of the rule of law foundations of American counterterrorism Right now is that one of the major party candidates really does propose to tear it up and I think the One of the interesting questions, and I'll stop here is a do we take him seriously at at his word about those things and for the record I do because I think we we We owe it to political candidates to assume that they mean what they say when they say things But so I do but I understand that a lot of people think he's a clown and they don't need to take it seriously But the other question is if he loses Do do these do these memes these these memes retain a life beyond him or Does this critique die with with his candidacy and I don't pretend to know the answer to that But I do think that's a you know that Just I think we have a lot more experience with the left critique than we do of the right critique And I'm much more confident saying that the left critique will not disrupt the consensus Then I am saying that the Trumpist critique will not disrupt the consensus Okay, great. I think what I propose And I think you should if you have Reactions to what Ben said and your relevancy you should say those I have a view about your relevancy that I'll articulate in a second and Peter if you have to take on old comers Perhaps you should go I'm gonna talk about the his have been under appreciate your role And it would not in a way that you might agree with and I wonder if you have any reactions to this idea of a consensus for your Proposals before so while y'all are thinking about that So I think Ben is right as a descriptive matter that there is something of a equilibrium if not a consensus One question for Ben maybe is is this an informed consensus? Is anyone people paying attention? How stable is the consensus? Maybe I guess you think it is stable But I want to suggest that it's wrong to treat the civil libertarian groups as kind of Outside the consensus the consensus and maybe you agree with this Ben because I think they caused the I mean it was all of the things you mentioned the commenced the consensus on surveillance the consensus on detention The content really the content is on everything that's emerged in the post 9-11 Legal infrastructure for the war in terrorism was a result during the Bush administration and the Obama administration of groups and civil Society and the press pushing pushing pushing on the executive branch Causing it to spill information that it didn't want to spill leading to modest and sometimes more than modest reforms Forcing the other branches of government to engage so that the system kind of worked to reach this consensus I think that's continued in the Obama administration, especially with not so much on those issues a little bit on surveillance but especially on targeting killing I think that The ACLU and other groups have forced the Obama administration to be internally and externally But more transparent and more rigorous inside So I think it's and I would say this if if the ACLU and other groups gave up I think that consensus. I think that they're always pushing on the consensus is central to Can I just clarify something because I I actually I do not mean that these groups are irrelevant And I do not mean that they have not had a huge impact. I actually think they've had and and Since he's too modest to say this Jack actually in his more recent book Spends a lot of time tracing the impact of of the left civil liberties groups and human rights groups On the development of this consensus and I and I was just wondering where you agree with I believe all that My point is that they are I do not believe their Critique of the current consensus has the capacity to disrupt it It's not that they were not important to getting us here And it's not that they're irrelevant their arguments are irrelevant now It's that when I look at this when I look at this consensus and say is this stable Is it robust? I don't see I don't see the left critique as disrupting it great and then Peter and then we'll open it up. Okay, sure absolutely so where to begin and Let me begin by the well Let me begin first of all that it it's fascinating to sit up here and hear people give us both more and less power than we Think we might have But let me let me take on the notion of consensus, right, which is I Don't think about it Only although I think there's validity to this as as what are the laws and norms that have been accepted but I also think about it Institutionally in terms of how do we think about the rule of law within this particular system and as a general matter I'm not sure that it counts as Consensus when the executive branch has promulgated information kept much of it Legal interpretations and most importantly facts to which those legal interpretations are applied out of public view and out of public Discourse so that whatever might exist is necessary is not necessarily fully informed Where Congress has not fully weighed in although sometimes it has and where the executive where the judicial branch Has not ruled on the merits. I think it is a very different thing And I think if you care about Institutions and their role in the separation of powers You've got to think about whether we think it is enough for consensus to be formed when the two other major institutions of government in the national security context are not adequately Fulfilling their roles or think about what their roles Will be Another area in which I'm not sure that we should just accept consensus as broadly defined and is broadly related is The rest of the world So let's think about for example the legal frameworks with respect to target killing or lethal force policy Virtually no other country has publicly agreed virtually no other country has publicly agreed with the novel Obama administration articulations of war authority Many might privately have said we're concerned We're worried about what we're going to say publicly or not certainly in my meetings mostly with European capitals. I know that there is a fair amount of concern I think that is very fairly put and sort of more broadly shared but But in most of the rest of the world when you're talking about lethal force surveillance Detention I don't think people would agree with what the United States is doing and how it's going about doing it Including in the places where we are going about doing it Then a third point. Let's say there is the kind of broad consensus that Ben posits I don't think there is but let's say that there is and then let's ask should there be should the way that we arrived at any kind of consensus like that be the way in which on Significant issues of life and death privacy security surveillance equality is This how we think consensus should develop is this what we think the law should be interpreted as being Because the other thing I will say is that I think about this in the long term. I really do. I think if you look at US history You know, I think about the notion of what happens when we're in time of real or perceived threat over reaction Violations of the rule of law a consensus that these things might need to be done And then we regret it and then there are reforms That's part of what also ends up happening and I think that's part of what's happened in the in the torture context I think might still potentially happen in other contexts But again, even if there is consensus is this how we want to arrive at it is what that consensus is correct For reasons. I've already said to you. I'm not going to sort of get back into that and then I guess, you know Are we better off in a world in which we have not articulated? Real limits on some of the broadest authorities that might be Expected in the executive branch in the final thing then just because it's a pet peeve We're really not the left you can call us civil libertarians, but we're non-partisan so Yeah, here more more of an observation You know the consensus itself has shifted because of the work of human rights groups and other Institutions like New America tracking things like drones. I mean go back five six years Are you it was US officials? It didn't actually even acknowledge the drone program existed and now think about where we are today And it's easy to forget that this was not an officially acknowledged program now. It's President Obama's looking at it very often Secondly, the NSA phone metadata program is over And and rightly so and that's also to do with the consensus shifting and people Finding this objectionable third the New York Police Department surveillance of mosques. It's it's over Again, the consensus was that this was unacceptable and unconstitutional So the consensus itself and I mean, I think I broadly agree with Ben that there is a there is some sort of consensus But the idea that it's sort of static doesn't make much sense either the bin so I Entirely agree with that You know and I did not want to suggest that the Consensus is static. I think to take the 702 program as a as an example It will I can predict with great confidence that it will be reauthorized in 2017 I suspect there will be some reforms to it and so then tell us what the 702 program is Sorry, the 702 which some people colloquially call the prison program is a one of the major programs that was Detailed in the Snowden revelations and it's a provision of the FISA that allows for the domestic collection from from technology companies of large amounts of signal by NSA to if that signal is if the targets of it are reasonably believed to be non US persons overseas, so it's a major major program It's the program that's the single largest contributor on a daily basis to the day presidents daily brief And it has a five year sunset built into it And so the authority terminates at the end of 2017 and I suspect we will see some Changes around the edges to it much as probably less significant changes than we saw to the the metadata program But which really did end and was replaced with something else and and similarly you've seen changes as as Peter notes to the both the transparency around the drone program But also changes particularly in May of 2013 to the substantive guidance that the agencies are Given about when they can conduct drone strikes. So I don't mean to describe a static never changing set of authorities that are you know written in stone and and Admit of no changes I I merely mean to say that we used to be arguing About the legitimacy of non-criminal detention We used to be arguing about you know, whether it was proper to think of the AUMF as authorizing drone strikes at all outside of active combat theaters I mean the parameters of the debate have narrowed very dramatically and And while I agree with you know that a lot of this is because other Entities of the federal government particularly Congress With respect to the AUMF and the courts with respect to both surveillance and the AUM and the drone stuff Has sort of abandoned the field That abandonment of the field is a deliberate decision about whose Whose decisions these are to make and that abandonment of the field is also a feature of the rule of law Consensus of the consensus to some degree would I like that consensus to be different in some areas? I would and if you look at the AUMF that that that Jack and I and Bobby Chesney and Matt Waxman Drafted I suspect Hino would like it better than the current operating environment in a lot of ways Though I certainly don't want to speak for her. We didn't win that debate, you know, and and so it's a I think it's a It's not to say that these other organs of government Have sort of been whistling past a graveyard and haven't noticed that there's a lot of dead people in it they Whistled that they walked right up to the graveyard. They looked at it pretty carefully and they and decided the contents of it Weren't their business So I do want to point out the extent to which you know the critique sort of ends up falling apart if you look at it on Some of its own terms look at surveillance for example People could have posited a consensus with respect to Surveillance until it turned out that Snowden that the Snowden disclosures were made, right? We heard President Obama saying that he wanted a debate But that debate didn't actually happen until more information was known to the public about Exactly the legal authorities that were not exactly because we still don't know a lot But the legal authorities that were being claimed as well as the factual ways in which that was Paris being carried out So I think it should worry us the extent to which I'll go back to something that I started with the extent to which there is a body of secret law and secret regulation Including in the lethal force targeted killing context We've succeeded in our litigations In in you know helping or securing the release of two legal memos. They're over 100 legal memos relating to the legal lethal force targeted killing program Which have not been made public? There is law with respect or interpretations of what's called working law in the context of FOIA Which is being applied to agencies which has not been made public An area in which I think that there has been some success But probably in a different way from where Ben talks about it is in terms of detention Now it is true that the Obama administration continues to claim the authority to detain detain people indefinitely Including out of the context of armed conflict But they actually haven't brought anyone to the to Guantanamo Guantanamo still remains Anathema The danger will be if that legal theory is perpetuated and goes forward But I think it is important to say that not only has that been stopped But it has been stopped without the Supreme Court Necessarily weighing in and this is where I say the courts have been missing for better or worse The Supreme Court has not taken a case Since vinyan talking about law of war authority and how that applies to detention Guantanamo in other contexts But the final arbiter not just the district courts or the courts of appeal the final arbiter of what the law is And how it applies has not yet spoken. I don't think that can count as either consensus or possibly How we think of as good institutional Separation of powers decision-making in this country, so we've got 30 minutes for questions I want to ask one more thing. We've got plenty of time and this is about this is for And I'm Peter. I guess this is about the relationship. We both talk about more transparency I'm someone accused me today of being a transparency hawk, which I took to mean pro transparency, which I am But I think I am for very different reasons than you are and this gets to a point I'm borrowing from Sam Moyne who's speaking this afternoon and he's written about this Transparency has led especially in recent years to what I and you've just given many examples that I'm going to give to the Sanitization of law, but hasn't changed the practice very much So I agree with you completely the last six years has seen an extraordinary change in what we know about The facts of the drone program the legality of the program the constraints on the program internal political and otherwise We've learned massive amounts about that. I would say that's all a process of deepening the legitimacy of those practices I think that's been the concrete Same with the metadata program. We're all talking about it as if it ended. This was the most Controversial of the Snowden revelations the metadata program and you talked about is it in the program did in but it was replaced with something That is functionally very nearly the equivalent with the only difference being that the NSA doesn't store the data It hangs it from other places. That's the main difference and moreover my friends in the government are saying to me We can't believe it. What used to be kind of an emergency I'm paraphrasing You know band-aid and bubblegum put together now. It's baked into the system Actual overt. We had a debate and there's overt legal authority for massive metadata collection and use for this purpose And I could go on and on the other example. So a Lot of the things that you're talking about The question is what is the relationship between transparency and the goals you seek? Well, I mean I'm not The ACLU Welcome to come over You spoke about the right you've been instrumental in enhancing our understanding of the drone. Yeah, so I mean Okay, so yes So the program used to be that the NSA kept everybody's phone data for five years And they didn't tell anybody about that fact now the program is the telephone companies keep it for a much shorter amount of time And you have to have a warrant. I agree everybody's better off. Okay, that's better. I agree So the transparency turned into a better outcome simply but not every my only point is not everybody think that's a better outcome because it's Perm I think it's a better outcome. I agree with you, but it has made permanent Something explicit and I think that's all good. Well, and but and in this case legitimate I mean in a way that the NSA meta meta day program was not legitimate So I think that's the success so yes And you may bake into the system something that some people may find objectionable, but it's a success I agree similarly with the drone program It's not just about the fact that we have better information about what is going on the drone program There is a reason that civilian casualties have gone down Because public attention. I mean everybody if your homework's been graded in a public manner so the the the The greater transparency around the drone program has been bought by other organizations like ACLU or New America And now the US government itself. I think it's produced a better outcome, which is we're killing fewer civilians So I actually but I would agree with everything you just said I would say that a general theory of what's happened in terms of reform since 9-11 is basically followed the pattern You just described. Yeah, something comes in secret. It comes out in public. There's a big debate it gets narrowed and Legalized and proceduralized and they continue doing some percentage of what they were doing But it's not as extreme as it used to be because we learned it didn't need to be that extreme when they try to defend it It's on a more permanent legal basis. It's more legitimate, but it's still basically the same things happening Well, the same maybe that's what we're saying. Yeah, I mean the question we what do you mean by the same? I mean when you go back to the Bush administration the drone casualty rate was close to 100% and it that was an entirely secret sort of set of operations so I Agree, I mean I think it relates to Ben's point, which is about the I mean there is a consensus. It's developing because of You know events and and pressure from outside organizations, but it's presumably it's not getting worse Right. I mean the outcomes are not getting worse and they want to go back to 2002 the outcome seem to be getting better. I guess, you know, that's your Over to you if you have to like open it up. I always have comments, but Especially in response. Can I just take actually a one-minute on just on the target killing you are? Which is to say, you know, I actually worry about this a lot Jack Which is when you know when I think about human rights rule of law civil liberties to pillars transparency Accountability again accountability can be public accountability various different kinds of forms And I I think one of the defining factors. I'm going to get away from consensus for a little bit Is is when? Transparency becomes an end in itself without what necessarily comes after that's how I sort of think about that when When it is seen or perceived as well here. We've done this now. We've provided you more information What more do you want and why does it actually matter right and I think? D-linking transparency and a broad notion of Institutional and public accountability would be a mistake and here are a couple of reasons why I think that counts as important again Use the lethal strike policy. So, you know presidential policy guidance gets released over the course of the summer footnote this PPG different kind of playbook Sort of a playbook different kind of playbook than we were talking about this morning For the rules that govern the administration's lethal force source what some colloquially called the drone program And and just a footnote is that this one of the reasons this started being worked on was when it looked like That Romney might get some traction In the previous election right so concerns about who takes over afterwards right and what might that be? So then you look at what the PPG is and what it does It's hard to look at because so much of it in terms of what the constraints are What counts as feasibility of capture what counts as? You know capture sort of more generally is redacted right you don't know When you look at it again more carefully, what are the legal obligations that are announced? They are virtually no different from what administration officials have announced in speeches What is different and I think this is good. It's commendable our policy constraints that are recognized as policy constraints, right? Any kind of constraint I think on such broad authority is a good constraint, but why should this worry us? Why is this transparency not enough? One because the policy constraint can be set aside tomorrow by the next president whoever she or he may be To the things that we're counting as policy constraints. That's not what other countries necessarily look to they want to know what we Recognize as our legal obligations. What do we recognize as the legal constraints? So it's not just the precedent that's being set domestically It is being it is the precedent that is going to be claimed by Iraq Afghanistan China India, you know any other country that you can think of that we Care about in terms of our our national security and sort of broader peace and security is going to be claiming a lot of these Same authorities and then with respect to the disclosures You know sometimes I feel not too often, but I'm sympathetic for the people charged with figuring out how to do these sorts of disclosures, but you know How is it going to be perceived when you disclose under an executive order? and new procedures Information that is so easily Contested by outside public sources and so credibility is at stake credibility is so important It's it's rule of law and credibility is I think the response most people had to the disclosures of target killing casualties Sadly was like haha really and I think that's a problem for government That's not what the government should be sort of doing the final sort of area that I want to just touch on here is I Think this administration has concerns about what it has done I think and know there are people within the administration who have deep concerns about where all of this is going an example of that is the executive order on Transparency and what it looks like going forward Commits the president's successor to providing more than he himself has provided now and That I think is about not just the importance of transparency and Recognizing what it is, but how it has to be linked to accountability because I think people know that those things have to be linked The question is how great. I think we'll open it up questions now So there's a question in the back on the right. It's who's got the mic So let's give it to Marty Thanks Hello Thanks all I Guess I want to push back a little bit. Say you say you are sorry Marty Liederman Georgetown Law Center push back a little bit on Ben's idea that there's this consensus Because it's pitched a two-grader level of generality and then tying into your last discussion ignores the Principle legal constraints that are currently in place. So yeah, there's a consensus about certain ability to target members of enemy forces and to detain them But it's a far more constrained consensus that during the first four years of the Bush administration when Hundreds of people were being detained who were not members of enemy forces and people were being arguably being targeted or the claim was being made that way without respect to an armed conflict Model so the so the consensus actually is there But it's a much narrower one than was in place at first in and that's largely because of litigation and other matters But also you're talking mostly about the statutory and constitutional and to a certain extent the international law constraints And I do think what's really important the principle constraints right now and the ones that matter Are what we might call regulatory or internal constraints such as the PPG Such as the president's commitment not to detain anyone else long term Certainly not within the United States and certainly not US persons But as Tina points out there haven't even been any long-term detentions at all for the last eight years All right, let me just interrupt you say there are a lot of people with questions So you we got a okay, and I actually think he was right of course the next president could change that But the key is that there is now this elaborate system of constraints That and I think people should be pushing the next administration to keep them in place if not to make them stronger I'm not sure I know what the question there is but but let me let me let me Look, I mean if your point is Do I agree sort of I mean What did you say Ben? I didn't hear what you said. I said if the question is do I agree the answer is sort of if Look, I certainly agree that the consensus that has developed is on a narrower implementation of the authorities to detain to kill to surveil then existed in the first few years of Post 9-11 under the Bush administration. I certainly agree with that I also agree that the fabric of policy constraints within the administration Which is by the way not part of the consensus. I think a If you imagine a different administration taking power, it's very plausible to imagine Some of the policy elements of the PPG not being you know giving more flexibility to conduct strikes than the PPG gives I think you could I think the The close Guantanamo do as little detention as humanly possible is also not part of the consensus The there are a lot of perfectly Reasonable Republicans who and some Democrats who don't accept that part of the consensus and believe we should be doing more Detention than we are by the way. I'm one of them And not a Republican, but you know a person who doesn't believe that that we should be limiting as Detention the way we are as a policy matter. So I don't want to overstate the scope of the consensus the consensus is merely a Degree of agreement about the basic parameters of the lawful authorities that we're operating under and I it's a Shifting consensus, but but my point is that in a way that was not true eight years ago when the Obama administration came in and and really had a deposited a basic argument with the contours of the authorities that its predecessor was Engaged what was engaged in there is no There's no serious Political or or strategic movement right now that is saying that these authorities Should be fundamentally revisited except of course The Republican nominee for president who says we should throw them all out again Bracket the question of how seriously you take that or how you want to read that Yes, right here In the front where's the mic? I'm Michael out. I'm a Navy judge advocate and has senior military fellow at National Defense University So I'm interested in the issue of public accountability because it's something. I think very deeply about and regularly about And and I'd like to offer up two of the questions that you you asked, you know What more do you want and why and I'd like to ask that specifically in the targeting context that that was teased out And I offer that in part because you know I'm not sure that your characterization of the magic behind the redactions in the PPG is accurate I think Jack's earlier comments about classified war powers reporting could be could be interesting But I'm not sure that gets you far down the line of the the secret law and secret regulation that you refer to So so my question is what my questions are what more do you want? Why and I'll add a third What would you predict the impact of those? Additional pieces of information to be if I'm telling you exactly why I conducted a particular strike my primary and alternative legal Basis for doing so those sorts of things. What's your prediction about the impact both from a trans? Transferability of the transparency and also to military operations So Thank you for those questions. Um, I actually have a sort of a list of things that I think We need more of and and why one let me start out by saying Articulation of the legal authorities and constraints not just the policy ones because it matters when you're talking about public Accountability and development of the rule of law. What are the legal constraints that a government recognizes upon itself? And on otherwise broad-based authority because right now when you read the legal memos and when you read The PPG itself the legal constraints do not seem to have any Geographic or temporal limitation the legal constraints seem to draw distinctions that the laws of war don't Recognize even if the laws of war were to apply So for example, some of the fundamental things I want to know are where does the PPG apply? What is the definition of a non-combatant, right? What are the definitions of? extraordinary Circumstances where even the constraints of the PPG Don't apply because there are actually a number of loopholes that are laid out in the document itself without definition or without actual explanation so basic concern that that boils down to is What is the law? How is that distinct from the policy and what are your interpretations of both? And what are the consequences when you decide and on what basis to set aside the policy then with respect to facts? And I think that's a really both a good and a hard question, right? We've never taken the position that Genuinely legitimately classified information that could cause in harm to national security is required to be disclosed No, of course not. Um, but but here's the issue here one with respect to The relationship between law and fact and one with respect to how the public accountability works Which is if you only have articulated an abstract set of legal or policy Constraints, then you actually without application to particular instances, right? That just seems fundamental We don't know how you're going to apply that especially broad and vague concepts in particular instances now It may very well be that You're not going to disclose something that's going to happen in the future never argued that you should But Shouldn't there be disclosures? Including in the government's own best interest because it is being called to account for things it might actually have done, right? right that are after the fact that Redact for specific legitimate sources and methods that shouldn't be made public and yet still give a Sense to the public to all of us who think about these issues to all of us who should be debating these issues of how the government is applying Law to fact including especially perhaps although I don't want to draw these distinctions when it is claiming the authority to take lives American lives without any judicial oversight or intervention whatsoever So I'd love to have more of a discussion and happy to get more granular with you about it But those are just some of the things that post PPG we think about Question in the back, and then we'll go over here It's not on Henry Hedger retired government. I thought I'd ask a question regarding extending what we're called the electronic wall, which is our airport customs Security when checking passports. It's electronic. It's quite effective. Perhaps it could be more effective Should we go with national identity cards as a way of furthering the so-called electronic wall a fairly reasonable way to try to Accomplish similar goals that many have presented Would this be within the rule of law? I'm just a moderator I Think that's an ACL National identity card is certainly Not on law it wouldn't be unlawful to have one just as a passport is not on But you'd have to have a government agency that was you know legally authorized to issue it But there's nothing I don't think there's anything legally problematic about it the It's politically toxic for large swaths of the population both on the right and and and on the left And so it's it's more in the department of politically unthinkable, but I can't imagine what a what a What a legal impediment to doing it assuming Congress passed a law authorizing it I think there would be pretty significant civil liberties and privacy concerns with respect to a national ID card Which I'm I think I think it's a huge and important topic. I'm happy to sort of elaborate on those separately Hi, I'm my Mike good girling. I'm a consultant and we'd be search on CVE I'd like to ask Hina if you could expand upon Initial critique of CVE whether it's primarily about CVE targeting Muslim communities unfairly or is it about issues with regards to are you targeting people for the Beliefs and the First Amendment in the UK now the government has published an anti Extrigenism strategy not even a countering violent extremism, but just Extremism so it kind of points to kind of where these type of programs can lead sure and so Concerns about CVE relate from the kind of generalized concerns I had earlier which is what do we mean by violent extremism? What do we mean by extremism radicalization? What is what is this problem that we are trying to address right? We've sort of talked if we put aside fear mongering and height and height and we are very fortunate in this country where terrorism of particular kinds, you know what I hate this word, but sort of how does other forms of terrorism and Not a significant problem not an existential threat. So what what exactly are you talking about when you're talking about violent extremism radicalization? What is the basis for identifying what the problem is because Decades of social science research have shown that you can't actually reliably predict when someone especially someone who hasn't actually Done anything wrong would be in charge of the crime will in fact go on to commit acts of political violence And so right now what the government is trying to do under the guise of empowering local communities is Asking Americans to identify extremists and people with extremist beliefs Among our own population the government doesn't know how to do it What makes you think that it would be a good idea in an area in which we're becoming more Cognizant for example of explicit and implicit bias for your neighbor or your school principal or your teacher to look at your children and say Extremist beliefs risk of violence on what basis yet. That's really the sort of thing that's going that's going on and and So I think my concern boils down to what exactly are we talking about? What's the framework? What are the what's the problem you're trying to address and how are you going to safeguard people's? Non-discrimination civil liberties rights because I've been asking the White House that for Many many years now and have never gotten a concrete specific and satisfying answer Ken my record world ox. I got here a little late So this may have been answered already, but I have foreign detention centers been legally banned and If not, would we know if that practice is still going on if what? Detention in foreign countries So currently I mean the the United States has detention operations in in right now in in a very limited way in In Guantanamo it no longer has detention operations in at Bagram airfield which were turned over to the Afghans Oh No, so so so the that that was part of the What's called the RDI program in the CIA and that was that authority was removed in I believe the second day of the Obama administration the CIA now has only short-term transient detention authority that's really used you know when you capture somebody to sort of Turn him over to a different government or turn him over to the FBI, but they don't have standing detention authority anymore It could be done in secret It the I mean you would have to have I mean there's a public executive order But that that you would have to deal with I suppose you could do it in secret Whether you could make it stay secret for any length of time is a is a difficult question I I suspect you probably couldn't just as the original program couldn't be kept secret But um, but I don't see why the guidance that that you would issue Authorizing it couldn't be at least as an initial matter of secret what what you couldn't do in secret is authorized Interrogation practices like the ones in the old CIA program because there is now public law Step public statutory law on that subject. I Think that there would be real legal and other Policy problems with authorizing the CIA to engage in detentions again. I will say that My understanding of one of the central documents authorizing that to happen in the first place has not been made public But I you know, I know we're running out of time I just I don't want us to be left with the notion that it you know And perhaps then you didn't do this But that it would somehow be a good idea or fully lawful or feasible to permit CIA secret detention Going forward. I will say that I don't think we should be concerned just about the CIA I think we should be concerned about special operations as well and the sort of engagement because I think there's a fair amount of secrecy that surrounds special ops and the ways in which those operations are operating abroad and Coordinating with other governments in which are not rights respecting in terms of interrogation and detention there Yeah, just just to be clear. I was in no way suggesting that would be a good idea the thing that My point is merely the thing that Ended that program was a change in executive branch You know, it was an executive order and there's been no subsequent congressional action that would forbid it So to the extent that it was doable before it's probably doable now I agree with you It would have some of the same legal questions associated with it that it did the first time around For all of the same one question in the back in the middle Hi a quick question And I and I realize we're here for for the you know, I'm talking about the government purpose, but I'm interested Hina if you are aware of Google's alphabet group and what they're doing for a CVE and curated content and if so what your thoughts are I Have two general of an idea to really address that question that would not be yeah I guess I'm a little surprised I'm gonna put this in a form of a question of with the exception of the ACLU representative Why people aren't more alarmed that so much is being done That is beyond or without the rule of law because the rule of law is supposedly fundamental to a democracy Well, let me as as as the person who's probably least alarmed other than maybe Jack on this panel I Look when you frame the question that way you also answer the question and I would not frame the question that way. I I look at the last 15 years and I see two successive administrations that in very different ways and with very different attitudes Both struggled over eight years or seven years in one case eight years and I'm doing the other case with what the law required of it and what additional policy constraints they wanted to put on what the law required of it and And sometimes they got answers with which I disagreed sometimes they got answers with which I agreed and the aggregate movement of the rule of law foundation over time is one that I find very encouraging very responsible and very Responsive to a lot of the anxieties that we're talking about and so I Actually don't look at the situation and say this is a you know A large swath of stuff has been sort of lifted outside of the rule of law and for that reason I don't I don't find myself alarmed by by by that Trajectory now. I accept that if you disagree We're disagreeing about a very fundamental premise and if you take a different Attitude toward what what the background condition that you're responding to you might be much more alarmed than I am We're out of time. Thank you all very much