Germans Love David Hasselhoff . . . and They Kindly Tolerate Pejman Yousefzadeh

President Obama gave a speech to the National Defense University today that outlined his counterterrorism policy in general, and his administration's policy on drones in particular. Deutsche Welle interviewed yours truly on the new policy:

Pejman Yousefzadeh, a Chicago-based lawyer who specializes in public policy, cautiously welcomed Obama's initiative towards greater transparency, but questioned the efficacy of a new policy. "I don't know if a blanket guideline is going to be as useful as bilateral diplomacy with the countries in question," he told DW. "Some countries may privately welcome US intervention against terrorists, but have to condemn the US in public."

Yousefzadeh is also concerned about accountability. "You can't have a US president's war policy that is completely free of congressional oversight," he said.

To that end, Yousefzadeh thinks Obama would do better to establish a "Federal Intelligence Commission," an independent regulatory agency that would review any targets the White House has identified. Though as commander in chief, the president would still be able to overrule such a commission's findings, he would have to tell Congress he is doing so, making the program much more transparent and subject to a legal process.

My thoughts on the establishment and uses of a Federal Intelligence Commission are spelled out in my article on drone policy for the Atlantic Council, which was originally linked to here.

Dzhokhar Tsarnaev is Captured. What Next?

Like everyone else, I was relieved to hear that Dzhokhar Tsarnaev was caught. Kudos to the law enforcement officials who worked this case so hard, and who brought about a successful outcome of the manhunt that consumed Boston for most of yesterday. But there are still many questions to answer, and many challenges ahead.

For one thing, I would like to think that despite the anger and outrage evoked by the Boston Marathon bombings, Tsarnaev will still receive due process as the case proceeds against him. At the outset, there is a due process controversy that needs to be dealt with; whether Tsarnaev will receive Miranda warnings.

Everyone who has ever watched a cop show knows what the Miranda warnings are. The defendant has the right to remain silent; if s/he gives up the right to remain silent, anything s/he says can be used against him/her in a court of law; s/he have the right to an attorney; if s/he do not have any attorney, one will be provided for him/her by the court. However, there is also a public safety exception to Miranda. It would appear that in light of the exception, Tsarnaev is not going to be read his Miranda rights. I can buy the fact that there may be a legitimate public safety exception at issue in this case, but as my FBI link makes clear, the exception is a limited one:

The Quarles Court made clear that only those questions necessary for the police “to secure their own safety or the safety of the public” were permitted under the public safety exception.


Voluntariness is the linchpin of the admissibility of any statement obtained as a result of government conduct. Thus, statements obtained by the government under the public safety exception cannot be coerced or obtained through tactics that violate fundamental notions of due process. Here, it is worth mentioning that prior to the Miranda decision, the only test used to determine the admissibility of statements in federal court was whether the statement was voluntarily made within the requirements of the due process clause. This test requires that a court review the “totality of the circumstances” to determine whether the subject’s will was overborne by police conduct. If a court finds that the questioning of a subject, even in the presence of a situation involving public safety, violated due process standards, the statement will be suppressed.

(Footnotes omitted.) The government mustn’t overstep the bounds of the public safety exception. It needs to ensure that it doesn’t destroy its case against Tsarnaev, and it also needs to ensure that it doesn’t erode civil liberties for the rest of the population.

A separate question exists as to whether Tsarnaev can or should be treated as an enemy combatant. On this issue, I am with Benjamin Wittes:

… Could the Justice Department legally question and detain the suspect outside the criminal justice system?

The short answer is no, says Benjamin Wittes, a national security expert for the Brookings Institution and co-founder of Lawfare Blog, a national security blog.

Federal courts have said the president has the authority to detain persons “who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States,” a power claimed by the Obama administration and codified by Congress.

So unless there’s evidence that Mr. Tsarnaev is linked to any terrorist group at war with America, “military detention is simply not lawfully available,” said Mr. Wittes. And there’s also the fact he’s a U.S. citizen pursued on American soil. That’s not necessarily a legal barrier, but a barrier under Obama administration policy, said Mr. Wittes.

There is a third issue that needs to be addressed as well—one that has nothing whatsoever to do with Dzhokhar Tsarnaev as a person, and everything to do with how we respond to terrorist threats. This involves the closure of Boston for most of yesterday as the search for Tsarnaev went on.

I understand the reasons for the closure; government and law enforcement officials wanted to keep the public safe while they searched for Tsarnaev. At the same time, I don’t see what was gained by the move. Fugitives are tracked all the time within cities without the cities being closed down, and this includes the tracking of serial killers and rapists. Those fugitives could do the very same things to render harm to the public that Tsarnaev might have done yesterday if there were no public closure request in place. If we don’t close cities when we are searching for extremely dangerous serial killers and/or rapists, it’s hard to understand why we would do so in order to search for a lone terrorist. Oh, I suppose that it might have been possible that even after his brother was killed, Tsarnaev might have had others helping him, but that was not the impression that we got from law enforcement officials yesterday. They seemed to indicate quite clearly that in the aftermath of his brother’s death, they believed that Tsarnaev was entirely on his own. And yet, the entire city of Boston was shut down and turned into a ghost town in order to find him—at a cost of upwards of $333 million. We regularly tell ourselves and each other that the best response to a terrorist attack is the resumption of normal life as quickly as possible in order to make it clear to the terrorists that they haven’t won. How is that philosophy to be adhered to with any credibility whatsoever if we turn off all activity within an entire metropolitan area simply because of one person—even a person who was responsible for the Boston Marathon bombings? Just imagine what al Qaeda abroad and terrorist cells in the United States must be thinking; they must salivate at the prospect of causing extreme amounts of disruption if a number of cell members act in concert to perpetrate terrorist attacks within the United States.

Finally, while I am pleased by the sense of unity and togetherness that the nation seems to have adopted, I am aware that all too soon, divisions will appear anew. We’ll disagree on issues and many of those disagreements will be passionate, loud, and very, very boisterous. But whatever our future disputes, let us all be united in the conclusion that there is a very real difference between Chechens on the one hand, and Czechs on the other.

Restoring Checks and Balances to the Drone Warfare Program

I am very pleased to report that I have an article on the website of the Atlantic Council regarding the subject. A snippet:

The Department of Justice has recently released a white paper detailing what it believes to be the scope of the president’s authority to kill Americans suspected of being members of al Qaeda—killings that are usually conducted via drones. The white paper argues that the killing of such suspects does not violate due process or the Fourth Amendment, claims that a lethal operation against such suspects does not violate the tenets of Executive Order 12333 (which among other things, prohibits assassinations), and states that the power to kill such suspects can take place “away from the zone of active hostilities.” Additionally, the president can authorize legal force against an American citizen located in a foreign country that either gives its consent to a legal operation, or “after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” A suspected American terrorist can be killed outside of the United States if the suspect “poses an imminent threat of violent attack against the United States,” but this “does not require the United States to have clear evidence that a specific attack on U.S. persons or interests will take place in the near future.”

The white paper has prompted spirited reaction. Indiana University law professor Gerald Magliocca argues that it is too easy to authorize a lethal drone operation because it is not clear who qualifies as “an informed high-level official” for the purposes of determining that “a targeted individual poses an imminent threat of violent attack against the United States,” and because the language of the white paper might suggest that only one such “high-level official” is needed to issue such a determination. George Washington University law professor Jeffrey Rosen claims that the administration’s arguments do not pass constitutional muster. Harvard law professor Jack Goldsmith states that while “[t]here is little of substance that is new in the White Paper,” the white paper “does reveal problems in the administration’s political and legal strategy for conducting drone strikes, especially against American citizens,” including “excessive secrecy.” Goldsmith also argues that we need “a new framework statute” that would “define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the president’s actions.” Goldsmith’s call for a new framework is echoed by former secretary of defense Robert Gates, who has argued for the creation of a “third group” that would inform Congress and intelligence communities about drone strikes, thus creating more oversight for the process.

Click for more regarding what shape I think such oversight should take.