nationalsecuritylaw forthcoming scholarship

May 1, 2012

Law and Ethics for Robot Soldiers

Kenneth Anderson

American University – Washington College of Law ; Stanford University – The Hoover Institution on War, Revolution and Peace; Brookings Institution – Governance Studies

Matthew C. Waxman

Columbia Law School
Policy Review (Forthcoming 2012)

Lethal autonomous machines will inevitably enter the future battlefield — but they will do so incrementally, one small step at a time. The combination of inevitable and incremental development raises not only complex strategic and operational questions but also profound legal and ethical ones. The inevitability of these technologies comes from both supply-side and demand-side factors. Advances in sensor and computational technologies will supply “smarter” machines that can be programmed to kill or destroy, while the increasing tempo of military operations and political pressures to protect one’s own personnel and civilian persons and property will demand continuing research, development, and deployment.

The process will be incremental because non-lethal robotic systems (already proliferating on the battlefield) can be fitted in their successive generations with both self-defensive and offensive technologies. As lethal systems are initially deployed, they may include humans in the decision-making loop, at least as a fail-safe — but as both the decision-making power of machines and the tempo of operations potentially increase, that human role will likely but slowly diminish. Recognizing the inevitable but incremental evolution of these technologies is key to addressing the legal and ethical dilemmas associated with them — U.S. policy for resolving those dilemmas should be built on these assumptions.

The certain yet gradual development and deployment of these systems, as well as the humanitarian advantages created by the precision of some systems, make some proposed responses — such as prohibitory treaties — unworkable as well as ethically questionable. Those features also make it imperative, though, that the United States resist its own impulses toward secrecy and reticence with respect to military technologies, recognizing that the interests those tendencies serve are counterbalanced here by interests in shaping the normative terrain — the contours of international law as well as international expectations about appropriate conduct — on which it and others will operate militarily as technology evolves. Just as development of autonomous weapon systems will be incremental, so too will development of norms about acceptable systems and uses be incremental. The United States must act, however, before international expectations about these technologies harden around the views of those who would impose unrealistic, ineffective or dangerous prohibitions — or those who would prefer few or no constraints at all.

(Annotated version of an essay to appear in a general interest journal that does not use footnotes in its articles; sources have been added here for scholarly convenience.)

Self-Defense Against Terrorists: The Meaning of Armed Attack

Steven R. Ratner

University of Michigan Law School
The Leiden Policy Recommendations on Counter-terrorism and International Law, Nico Schrijver and Larissa van den Herik eds., Cambridge University Press, Forthcoming 2012

The last decade has witnessed increased recourse by states to military force to respond to terrorist attacks on their soil that have originated from abroad. A number of states — including the United States — have justified these military actions as lawful self-defense in response to an armed attack, as permitted under Article 51 of the United Nations Charter. These claims raise multiple interpretive questions about the meaning of "armed attack" under Article 51 and of the various options that are allowed in response to one. This essay explores the contemporary understanding of an "armed attack" in terms of an attack’s origins (i.e., can an attack under the Charter originate from nonstate actors?), scale (i.e., must such attacks meet a threshold of intensity to trigger lawful self-defense?), and military nature. It also focuses on the the permissibility of attributing an attack by nonstate actors to a particular state, as well as the consequences of such an attribution. It then identifies a number of outstanding areas of disagreement in the law as well as practical issues for states contemplating the use of force in response to terrorist attacks. The essay concludes with a series of recommendations for resolving these disagreements in a way that respects the imperative of avoiding an escalation in force while deterring such attacks.

Were Timothy Mcveigh and the Unabomber the Only White Terrorists?: Race, Religion, and the Perception of Terrorism

Tung Yin

Lewis & Clark Law School
Alabama Civil Rights & Civil Liberties Law Review, Vol. 4, Forthcoming

This article examines real post-9/11 cases of bombings/attempted bombings and mass shootings, and asks why some of the cases have been deemed acts of terrorism, while others with similar fact patterns have not been. The easy, if cynical, answer is that an act of mass violence is terrorism if it is committed by someone who is Muslim (such as Portland’s alleged Pioneer Square bomber Mohamed Mohamud, or Fort Hood shooter Nidal Hasan), but it is not terrorism if it is committed by a non-Muslim (such as a father-son duo who planted a bomb near a bank in Oregon, or Arizona gunman Jared Loughner).

Yet, the easy answer glosses over seemingly plausible explanations for the disparity in perception. This article considers ‘micro-level’ views of the cases, such as the nature of criminal charges available to the prosecuting jurisdiction (state versus federal), that do explain the disparate perceptions. However, the micro-level view also misses the forest for the trees: notwithstanding the plausible explanations for why the cases are seen differently, there are real costs imposed on society when terrorism becomes branded with Islam: cognitive biases against Muslims become more potent; investigators risk losing the trail of non-Muslim perpetrators when they fixate reflexively on Muslims; and worst of all, some government officials, aware of the biases and concerned about appearing anti-Muslim, may overcompensate by deliberately ignoring specific ‘red flags’ about Muslim individuals, with tragic results, as the Fort Hood shootings demonstrate.

The article does not pretend that there is a panacea to solve the problem of perceiving terrorism through the lens of race and religion. There are, however, steps to be taken to address and minimize the problem, including de-biasing techniques and redefining ‘terrorism,’ at least in layperson’s terms to focus on the intended result, rather than the perceived motivation (as the latter tends to result in equating Islamic beliefs with terroristic motivation).

nationalsecuritylaw United States v. Wright (N.D. Ohio) (arrests in alleged anarchist bombing plot)

May 1, 2012

From DOJ’s press release (see also the attached affidavit and complaint):

CLEVELAND – Five people were arrested and accused of conspiring to use explosives to destroy a bridge near Cleveland, Steven M. Dettelbach, U.S. Attorney for the Northern District of Ohio, and Stephen D. Anthony, Special Agent in Charge of the Cleveland Division of the FBI, announced today.

Douglas L. Wright, 26, Brandon L. Baxter, 20, and Anthony Hayne, 35, were arrested by members of the FBI’s Joint Terrorism Task Force on the evening of April 30, 2012, on charges of conspiracy and attempted use of explosive materials to damage physical property affecting interstate commerce. Also arrested were Connor C. Stevens, 20, and Joshua S. Stafford, 23.

The public was never in danger from the explosive devices, which were controlled by an undercover FBI employee. The defendants were closely monitored by law enforcement. The explosives that the defendants allegedly purchased and attempted to use were inoperable and posed no threat to the public.

A criminal complaint was filed this morning in U.S. District Court in Cleveland.

According to that complaint, Wright, Baxter and Hayne are self-proclaimed anarchists who formed into a small group and considered a series of evolving plots over several months.

The initial plot involved the use of smoke grenades to distract law enforcement in order for the co-conspirators to topple financial institution signs atop high rise buildings in downtown Cleveland, according to the complaint.

The plot later developed to the utilization of explosive materials. The defendants conspired to obtain C-4 explosives contained in two improvised explosive devices to be placed and remotely detonated, according to the complaint.

The defendants discussed various bridges and physical targets in and around the Cleveland metropolitan area over the course of several months. The final plan resulted in the Route 82 Brecksville-Northfield High Level Bridge being the designated target. This bridge crosses from Brecksville, Ohio, to Sagamore Hills, Ohio, over the Cuyahoga Valley National Park, according to the complaint.

“The complaint in this case alleges that the defendants took specific and defined actions to further a terrorist plot,” said U.S. Attorney Dettelbach. “The defendants stand charged based not upon any words or beliefs they might espouse, but based upon their own plans and actions.”

“The safety of the citizens of the Northern District of Ohio is and continues to be our primary focus. The individuals charged in this plot were intent on using violence to express their ideological views,” said FBI Special Agent in Charge Anthony. “The Joint Terrorism Task Force will continue to be vigilant in its efforts to detect and disrupt any terrorism threat, domestic or international.”

Wright, Baxter, Hayne, Stevens and Stafford will appear before a federal magistrate in U.S. District court today, May 1, 2012, in Cleveland.

Agencies represented on the FBI’s Joint Terrorism Task Force include: Cuyahoga County, Ohio, Sheriff’s Office; Federal Air Marshal Service; Cleveland Police Department; Cleveland Heights, Ohio, Police Department; U.S. Secret Service; U.S. Coast Guard Investigative Service; Ohio Bureau of Criminal Investigation and Intelligence; Westlake, Ohio, Police Department; U.S. Diplomatic Security Service; Immigration and Customs Enforcement; Customs and Border Protection; RTA Police; Ohio State Highway Patrol; Transportation Security Administration; Bureau of Alcohol, Tobacco, Firearms and Explosives; Shaker Heights, Ohio, Police Department; North Olmstead, Ohio, Police Department; U.S. Postal Inspectors; and the Defense Criminal Investigative Service. Assistance was also provided by the U.S. National Park Service Park Rangers, Sagamore Hills Police Department, Brecksville Police Department and the Summit County Sheriff’s Office.

A criminal complaint is merely an accusation. All defendants are presumed innocent of the charges until proven guilty beyond a reasonable doubt in court.

Wright signed complaint and aff.pdf