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tv   Politics and Public Policy Today  CSPAN  April 11, 2016 3:12pm-5:13pm EDT

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detention not being used in subsequent proceedings. and lawful cooperation with other estates who are also at war and relying on law enforcement authorities. and i know that my colleague from euro just will say more about this in the discussion session. so where do these legal rules come from? three sources, international criminal law as it's developed since nuremberg, particularly now in the international criminal court rome statute which addresses genocide, war crimes, crimes against humanity, and after 2017, the crime of aggression. conflict, sometimes known as international humanitarian law, and international human rights law whether it is not ousted by other bodies of law as a controlling. what does it mean to be in an armed conflict? we're in an armed conflict we're in an armed conflict when he we're fighting with an organized armed group which have
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a particular nature, intensity, and scope. and that armed conflict can either be an international armed conflict or a noninternational armed conflict, as declared by either the state itself orbit international committee of the red cross. we're very familiar with two kinds of armed conflict. u.s. versus germany, an international armed conflict in world war ii, a noninternational armed conflict of the type we saw in colombia, the government versus the farc, a civil conflict. but what we've seen is the emergence of another kind of noninternational armed conflict between a nation state and a transnational terrorist network. and it was justice breyer among others who in the hamdan case in 2006 identified the conflict with al qaeda as this kind of noninternational armed conflict. we are in a war not with terror
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but with al qaeda, the taliban, and associated forces. this administration has construed isil or daesh as part of these associated forces the key that they be cobelligerents in the sense of having entered the fight against the united states alongside other armed groups. and the hot battlegrounds, active theaters, afghanistan, iraq and syria, russia says it has been invited there had by assad. the united states is participating there against isil. what law must the u.s. follow? well, under traditional laws of war, the law of initiating war, and the law during wartime under domestic law following the constitution and the authorization for use of military force, which brings to us what has been the position of the u.s. government since the second half of the bush administration. the united states is in a noninternational armed conflict
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with al qaeda, the taliban, and associated forces in response to the 9/11 attacks and subsequent attacks, and may use force consistent with the laws of war and its inherent right to self-defense under international law, and that the congress has authorized appropriate and necessary uses of force through statute in response. now, this raises several issues what constitutes a valid armed conflict, when are you acting in individual or collective self-defense and when has the state in which the action occurs consented to the use of force on its territory or demonstrated itself to be unwilling or unable to suppress the threat? the classic example here being the raid on osama bin laden. in conflict, the conduct of force is governed by well- established rules, distinction between civilians and military, necessity,
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proportionality in the use of force, and rules of humanity. so when you hear people talk about carpet bombing, it's illegal. now, i heard recently this candidate mentioned the notion of selective carpet bombing, which is a oxymoron if i've ever heard of it. but to go on, under the geneva conventions, the four conventions, comon article 3 the rule of humanity says there shall be no violence to life and persons including torture, no outrages on personal dignity, no sentences without due process. and the additional protocol one which the u.s. has treated as customary international law amplifies these guarantees and outlaws all forms of violence against those persons who are noncombatants. now, it does not matter that al qaeda has not signed the torture conventions or the geneva conventions.
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i recall a meeting i had with a senator who said to me, professor -- by the way, inside the beltway, professor is not a term of respect -- he said professor, the last time i checked al qaeda hasn't signed the torture convention or the geneva convention. i said, senator, the last time i checked, the whales hadn't signed the whaling convention either. this is not about contract. it's not about a bilateral agreement. it's about what our minimum standards of humane treatment, or as senator mccain put it, well, it's not about them and who they are but about us and who we are. and it contains the notion in additional protocol ii which the u.s. has respected on the key provisions no acts or threats of violence the primary purpose of which is to spread terror among the civilian population, including such banal threats as making the sand glow.
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now, if you will hear some say we should proceed to waterboarding or a hell of a lot worse than waterboarding. the short answer which you saw in the retraction, which came is, unfortunately, that's illegal. and if the president has taken an oath to uphold the constitution and laws of the united states, that's probably an impeachable offense, because the torture convention says justification may not be justified by a state of war or a threat of war and that all acts of torture, wherever they occur, must be criminalized. senator mccain made the policy point, as well, these statements mislead americans about the realities of interrogation. i would urge you to read shane o'mara's book, "why torture doesn't work." he's a professor of brain research, experimental brain research at the university of dublin. his point is simple. at a cellular neurological level
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it, does the opposite of what it is intended to do, so it is a pointless act, or as orwell would say, the only point of torture is torture. and then this brings us to the hague. the international court of justice has said that the international covenant on civilian political rights does not cease in times of war. if there has not been a derogation in the palestinian wall case that the court must take account of both international human rights law and international humanitarian and so, we apply a provision by provision approach. there are some human rights provisions which may be impracticable in time of war, for example, elections. but others like the right to be free of torture and cruel treatment are nonderogable and cannot be relaxed. charlie savage of "the new york times" in his new book "power wars," recounts a debates in which i was involved.
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i left behind when i left the state department on my last day as legal advisor a memo which said i do not believe it was legally available for policymakers to claim that the torture convention did not apply outside the united states. and in 2015, are this administration made explicit the assistant secretary for human rights, tom malinowski, the torture ban applies in all places at all times with no exceptions, and then my successor as legal visor mccloud echoed the same notion. so that is the law of interrogation. what about detention? increasingly, as the president made clear in his national archives speech seven years ago, civilian trials are preferred. military commissions must comply with the constitution. transfer of detainees from guantanamo continues. and, as of yesterday, they report that of the 91 left, 17 will soon depart, hoping to leave that number at something
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like 45 by the end of the summer, still with time to go. an executive order on periodic review and now embodied in the national defense authorization act -- an absolute statutory guarantee of humane treatment. i'm often asked, you are a human rights lawyer. how can you defend drones? and the answer is quite simple. all torture is illegal. killing in warfare can be lawful, if done according to laws of war. you may not like it, but if you're a lawyer in the government it is your inescapable why, it is your duty, to draw the line between uses of force that are or not lawful. if we are indeed in an armed conflict, we can engage in
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certain kinds of lawful, lethal warfare. for example, targeted killing can be lawful when conducted against someone not in government custody, as self-defense or as part of an arm the conflict, that person has no immunity under the gene neev va conventions and can, indeed, as suggested, be more consistent with human rights because of the lower possibility of collateral damage. what makes targeted killing lawful is that the action is authorized, that the person targeted rights have been adequately considered and rights of the sovereignty of the country adequately respected. if done corrected it is not extra judicial killing, it is not assassination, and can be carried out by special operations as in the case of bin laden or drone. which means that drones may be lawfully used for targeted
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operations. there are some weapons that are inherent i illegal, in my judgment, chemical weapons, unexploded ordinance, cluster bombs but not drones. how they're used determines whether or not they're lawful. take this thought experiment. suppose congress authorized use of military force, if the president, who had been the person at the time who had won the popular vote had come out and said the following, yesterday, a week ago, we were attacked, 3,000 innocent people were killed for going to work, we will have to respond, here is what i will not do, i will not torture anyone, i will not open guantanamo, i will not invade iraq, i will not conduct kidnappings or extraordinary rendition, i will not violate people's rights by surveillance, i will cooperate with our allies
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in a transparent fashion, but if the only place i can find bin laden and his supporters is in a cave in tora bora and the only way to reach them is by drone, i will use that lawful method. please support me. now, a lot of water under the dam since that speech was not made. but what it tells you, it's not the drones that are illegal. is it the way in which other things have been conducted that have carried or put a cloud over so much of what u.s. has done since 2001. president obama made clear his goal was to obey law even in times of armed conflict, he said this in his nobel prize speech. at national defense university in may 2013, he emphasized that a smart power approach can
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include drones, as effective discriminate tool to help dismantle specific networks that threaten the united states. and he made clear his preference for capture over kill, respect for state sovereignty, the notion that self-defense can include the notion of continuing imminent threat or elongated imminence against someone who clearly is determined to strike against senior operational leaders, so long there is a near certainty of no civilian presence. now, these are policy rules, they're president policy guidance, but to my mind, these rules are consistent with the laws of war. and, if you translate them into codes of conduct and internalize them through private contracts, they can even govern private security contractors, as hand been in something called the
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montro document. what about robots? the law of war does not yet treat autonomous robots as a per se illegal instrument. sem ply autonomous robots have human beings in the loop and can be programmed to operate under the same set of principles, or the operators can use the same set of principles as in the speech, and and it's very clear fully autonomous robots, think arnold schwarzenegger in "the terminator," not as government of california, fully autonomous robots obviously, probably, enter the zone of per se illegal weapons. >> what about cyber intrugss? this is a difficult area we will discuss further. we need to distinguish between cybermonday terring, defense and espionage hagging, which can be
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done by private parties, network exploitation, which is a form of intelligence and network attack, which can have broader physical consequences. for example, using a computer to open a dam, shutting down a hospital is no different than bombing the dam or bombing the hospital. in 2012, at cyber command, i gave a speech called the ten rules of cyber conflict which made clear international law applies in cyber space. it is not a black hole. it can be used in force. with states being responsible for the actions of proxy actors. and a series of legal experts in an exercise called the talin manual have elaborated this. to further legalize cyber conflict we need to translate laws of war to make it clearer cyber space is not law-free
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zones to incorporate exercises into other exercises and promulgate these through diplomatic negotiation before forums like the group of governmental experts. finally, we end with syria, a tragic story that you all know the civil war, the violations in armed conanythiflictconflict, t conflict, border closings, discrimination those feared to be isil, 250,000-plus dead, 7 million displaced, 5 million refugees, 2 million of those children, like this poor infant. president obama suggested that the approach here, and this is in his very last state of the union speech a few weeks ago, is a smart power approach to clon fli conflicts like syria. one of the issues raises over and over is whether it is lawful
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to enter syrian territory. raised earlier in the administration is a lawful to give humanitarian assistance, later is it lawful to support syrian rebels? now, one of the questions, as aleppo remains divided and as refugees flock to the border, is it possible to give them some sort of humanitarian protection? here, some claim that the u.n. charter, article 2.4, is absolute. that it is a violation of sovereignty to enter. i think it is a moment to question this, as we did in kosovo itself. if this were true, any member of the permanent five could commit genocide against its own citizens, veto all security council resolutions and no one could do anything about it, and maybe somebody can explain to me how that is consistent with the values of the u.n., including human rights. some have call ed humanitarian
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intervention illegal but legitimate. i consider this a cop-out. as a canadian commission pointed out if the security council fails to discharge its responsibilities, concerned states will not rule out other means and forms of action. in his nobel lecture, president obama made clear that he believed that use of force for humanitarian grounds as in the balkans and be justified. it's not clear the fact that it's lawful means that it must always be done and he clearly has concluded differently with regard to syria. but i do think we need to question the notion of illegal but legitimate as the ending pint. did we say that same-sex marriage is illegal but legitimate? or did we move to make it lawful? it seems clear to me that, in the black letter realm, the rules that claim to be
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absolutists, recalling to my mind more of an approach i associate with late justice scalia than brier, creates buyance towards inaction in the face of gross abuses. isn't there a time to define a narrow responsibility to protect in the name of human rights? i have an article coming out which suggests this particular test, that when you have disruptive consequences likely lead to imminent threats to peace and security, other remedies have been exhausted the humanitarian use of force is limited necessary, proportionate, if action is done collectively, as nato did in kosovo, to prevent illegal means, like chemical weapons to be used for illegal ends like war crimes, the use of force in these circumstances is legally justified. and you can analogize it to the good samaritanian principle in torte law. tort law rarely forces people to
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use force. you recognize the tension with the letter of the law but invoke affirmative defense. and my might ask whether it isn't the task of international lawyers to develop the law in this area and service of human d dignity. the crime of aggression, i cite an article published in the american journal of international law. if western leaders and nato, for example, engage in humanitarian intervention in a place like kosovo, can they be charged with aggression at the international criminal court? and if that were done, wouldn't that deter human rights action? and isn't it perverse, perverse, to say that the only remedy that people have for crimes against hu humanity, war crimes and genocide is episodic after the fact punishment and that there
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is no remedy of prevention, and any effort to undertake the prevention will be criminalized. this cannot be the law. lawyers can figure out a better solution. so, in closing, let me say what i believe is the lessons of this, and today's armed conflict the laws are not silent. even though the means are mutating, theres an emerging 21st century law of war. it doesn't follow verbatim from 20th century law, but it is a good faith effort not to have a black hole but to translate the spirit of those laws to the present day. these laws govern interrogation, detention, drones, special operations, private security council contractors and the responsibility to protect. our challenge going forward is how to clarify the rules, make them more legal, more transparent, more subject to external oversight. if you need to remember this lecture in one phrase, we do not
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have to apply the turner doctrine. tina turner, that is. you know the song, "what's law got to do with it? what's law but a sweet old fashioned notion." that is not true this area. laws of war do not fall silent because conflict is evolving. we have a great deal of law to codify, enforce and that is what i call the translated law of 231st century war. this is my contribution to brookings, to strobe, justice brier, city the hague and global justice. thank you. i look forward to the discussion.
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231st century war. ladies and gentlemen, welcome to the discussion on the emerging law of 21st century war. the papal provinel provides us opportunity to delve deeper into the substantive issues which professor koh has outlined in this year's brier lecture. it's a great pleasure to be back at brookings and for the hague institute to partner with brookings, and the netherlands foreign ministry, particularly the dutch embassy here in washington, and, of course, the city of the hague to host the
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third annual justice stephen breyer lecture on international law. and i thank professor koh very much for his stimulating and thought provoking lecture. we hope, through this series, to shed light on pressing questions of international law and to the hague in the process. there is little dispute that the means and methods of waging war have changed significantly in the decades since the laws governing the conduct of modern warfare were drafted. the nature of armed conflict has also changed significantly since the geneva conventions of 1949 and their additional protocols were drafted, modern warfare is increasingly asymmetrical and spreads easily across national borders.
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states, even those that are allies, have different understandings of how to interpret and apply the laws of war to new means and methods of warfare, sometimes within the same theater of operation. so a shared understanding of the emerging laws of war in the 21st century is, therefore, impa imperative in order to facilitate more effective and coherent responses to the multiple crises that threaten global security. we're fortunate, therefore to have with us two distinguished panelists who will discuss the emerging laws of war and the challenges of compliance, keynote speaker, harold koh, sterling professor of international law at yale law school, and the president of euro just, michelle coninx. i will pope a series of
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questions and after approximately 35 minutes or so, i will open up the discussion to the audience. so, let me begin with harold koh, if i may. while there is broad agreement between the u.s. and eu as to the importance of rules-based approach to warfare, are there significant differences in how actors interpret key elements of international humanitarian law, and can differences, among allies, in interpreting the laws of war undermine the possibility of complimentary, coordinated and ultimately effective action? >> so, first of all, i think that there's widespread agreement. the agreements far outweigh the
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disagreements and will probably continue to do so as this whole exercise is increasingly becoming active in europe which, by the way, i think lends itself to the notion of greater collective standard setting. it's high time for an agreed statement of principles. it's high time for public discussion of the shared principles. what i think are the two main points of disagreement that have emerged is on what happens when a state has not explicitly consented to a military action on its soil? to what extent can you invoke the notion of unwilling or unable as a proxy for state consent? so, for example, if you have a country which knows that a nato veto action will take place on its soil, they will not protest
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but neither will they come out and explicitly say we agree. at what point is that unable or unwilling approach sufficient to give the state consent necessary will to overcome state sovereignty? we see this lack of clarity in syria, where in an absurd situation where assad has consented for the russians to participate. assad is silent on the u.s. using force against isil. but assad will not consent for the u.s. to provide assistance inside syria. the notion of state consent in one circumstance has been overcome and at the exact same time, with regards to the most pressing humanitarian need is being treated as if it's somehow absolute consideration. the other main difference is about self-defense. people point out, correctly, i think, that the original notion
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of self-defense is against imminent attack. and if you have lots of imminent attacks you should be in a state of armed conflict not repeat state of self-defense. but what has become clearing over time, is when there are groups that are constantly planning attacks you don't have to wait till the next attack is about to be implemented to act against them. for example, if al qaeda acts against the united states by airplanes into towers, cart edge, printer cartridge bombs, shoe bombs, underwear bombs, the last mode of delivery will change, which means that you must be able to have some ability to respond in self-defense before that penultimate moment. now, the question is, how far back can you go before the notion of imminent self-defense
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is lost and becomes preemptive self-defense the notion that the administration has used in its own presidential policy guidance is continuing imminent threat. and that is based on the notion that there are a group of individuals, hopefully a small group work do nothing but plan attacks. and so, each attack is a continuation of the previous one. that's different from declaring the place where those attacks are occurring, theaters of armed conflict. you don't declare brussels a theater of armed conflict because there was an attack there. in fact, that can be addressed through law enforcement. and is being addressed that way now. >> let's turn to brussels, mi michele. to improve coordination among member states to facilitate investigation and prosecution of cross border crimes, including terrorism. in light of the recent attacks in brussels, what are the
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challenges of compliance with interflnational regimes when multiple states are involved. >> when we talk about terrorist attacks, we talk about attacks which are planned, organized across the borders of different states. this as shown in the paris attacks last year and brussels attacks and it will not change. this is a given fact. that means that it's self-evident we have to strive for, as has been said, for national coordination, international cooperation, key words, stick together, join the forces, have a common objective in fighting terrorists. eurojust is the agency enforces cooperation. it's the heart of our activities to bring judicial and law enforcement authority together
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around terrorism criminal networks. in tackling terrorism, however, we're confronted with national criminal laws and international laws, conventions, treaties, and hence it's becoming more and more complex. if you, for instance, want to prosecutor not prosecute a terrorist you might hit questions around international criminal law or international human rights law. so it's extremely important to have a reflection and analysis on a talk basis. this is exactly what we do for every single terrorist attack, we are coordinating, ensuring judicial cooperation. now, european union has always favored criminal justice approach, and that coincided with existence of eurojust. we started to see the daylight in 2001, 2002, concerned with
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the 9/11 attacks and we have been facing different terrorist attacks, madrid bombings, london bombings, 2005, we had foreign terrorist fighters network in 2005, being disrupted by the authorities in 2005, in close cooperation with the united states, and continued, continued until 2014 with the attack against jewish museum and, of course, 2015, which was a year of a lot of dramas, ending up by the last attacks. but we have seen, all along the line in european law, we have framework decision in 2002, which was ment to define for the first time in history what is terrorism at eu level which continues in 2008 where recruitment and training and
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public provocation were being penalized and recently we have also adopted resolution under 2178, and the second protocol to the convention of prevention of terrorism into initiative taken by the commission on a directive, how can we tackle foreign terrorist fighters? what about traveling for terrorist, the financing of the traveling and organization of travel after foreign terrorist fighters? what about passive training? these are to be taken into account now under the initiative of commission. so we see that from 2001, we have not left any occasion aside to streamline the legal frame at the level, always based on criminal justice approach and we continue to do so. we will gradually adjust, follow
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up on the impacts of those changes because what has been regulated through directive indecisions have to be implemented in the national laws of the member state and that has been readily done and throughout the analyses of convictions, which is monitored, we see what is the impact of the implemented laws, in what extent international humanitarian law, conflict with terrorism laws, what has been a. doed a ee adopted and accepted judges, what is accepted to be terrorist activity translated into terrorist offenses or what is, and has to be translated, into international terrorism law. we follow up triktly with the terrorism convictions monitor. but lie give more insight later on. >> there has been a lot of criticism about the belgian
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authorities and the performance in light of these attacks. you have a unique perspective, both as president of eurojust and former belgian prosecutor. do you think these criticisms are justified. >> i think we have to be after each and every single terrorist attack to be critical to ensure that what was not going well will not be repeated by other future and potential victims. but when it's criticism for the criticism, not based on any in-depth knowledge of the reality, based on the true and correct information, it's destructive, and then it's unacceptable. it will divert the attention of policymakers, politicians to what they have to do and that's to focus on the thing right now. i know, and i'm still a belgian federal prosecutor, but we managed in 2015, january, to abort a terrorist attack on the
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15th of january. i know that in july 2015, for instance, names you have heard about through the newspapers, were being convicted by a brussels tribunal. they were subject of international arrest warrants in the meantime. i knee know that a lot of attacks have been aborted but the problem we're faced with now, foreign terrorist fighters, is an immense complex problem. it is no the about a well struck doored terrorist group with separating from a specific terror, it is about isolated, lone persons, wolves, terrorists. it's about the loose groups which sometimes do not move at all and which are incited and invited to act in a terrorist way through the internet, not
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easy to detect. in other terms, we have to be lucky at all times. they have to be lucky only once. we have been. not only we have been, not only in belgium but european states being capable, able to disrupt. think about the french recent action. in the last weeks that we have been able to disrupt terrorist activity but we might not be lucky at all times. because of the way the -- focus on the trainees would be the wise thing. we cannot focus on structure groups, we cannot focus on people who have only a criminal record for terrorism. we have are to focto focus on a
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things at the same time. it's crucial, again, to have a multidisciplinary approach in a state and across the states. this is not easy. we're learning from each and every single attack and spreading the good news. this is also one of the talks. we have started working on foreign terrorist fighters since 2012 when we first were informed about a movement in belgium. we have since then not let any moment, opportunity to continue the work on the approaches of the 28 digit member states in facing foreign terrorist fighters. will we always be sauccesssucce? no. is this to be criticized? no. the answer is judicial cooperation, law enforcement cooperation, coordination in the european union and other partners including and especially with the united
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states. >> michele makes a very important point that shouldn't be lost. there's a myth operating out there that the europeans favor a law enforcement approach and that the americans favor a war approach. in fact, that is not the dichotomy. so, for example, the boston marathon bombing was handled by law enforcement, belgium situation delegate with by law enforcement. so, for example, but it goes to the point about a state that's able and willing. a former presidential candidate now out of the race said things like, under the administration's rules you can use a drone against someone sitting in a cafe in new york.
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that's obviously not so. that person can be detained by law enforcement ross. why would you ever import a war paradigm into that situation? so the exact same person as you noticed when after the belgium attacks, secretary ash carter announced there'd been a drone attack on a senior leader in a place that was inaccessible by other means, whereas at the same time, law enforcement action is occurring in europe, and these things go together. it's a combined paradigm. it's not either/or. >> legal adviser to the state department dealing with issues including the detention of enemy combatants and drone warfare. is it ever the case that compliance with international law is at odds with the formulation of a domestic security policy?
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>> first of all, i should acknowledge in the audience, brian egan. i'm touched he is here. his counselor is also here. he's giving a major speech at the american associate of international law which is more important than this speech and i encourage you to attend. it is the job of the legal adviser, the state department to ensure that we're living up to our international legal commitments without threatening our security situation. so we certainly believe that these things can be reconciled and we work very closely with the justice department. i know that michele works very closely with attorney general lynch and senior officials of the justice department on international criminal action. and so these things have all developed over time. it's a multipronged philosophy. the state department has a
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counterterrorism office that specializes in counterterrorism diplomacy. so the -- in a multifa scetted problem you don't just use one tool, you use many, many tools. these different tools should be targeted to the things which they are both most effective and can be most clearly conducted in a legal fashion. >> and michele, you've mentioned foreign fighters and member states with the prosecution, foreign fighters in the eu, but it also highlighted that member states may encounter difficul difficulties when prosecuting foreign fighters. due to the complexity of qualifying their actions of international humanitarian law.
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how do you think those can be overcome? >> we've been seeing tribunals in every single case of a terrorist trial, the last of the tribunals have been -- it is terrorist activity that should be translated to terrorist offenses and being judged and convicted as such. one of the case i would like to refer to is the emblematic conviction that took place in february last year. the 11th of february 2015. was appealed in january this year confirming the conviction, where defense lawyers, 46 defendants were pleading for the application of the international humanitarian law referring to the conflicts in syria as a noninternational conflict, armed conflict, referring to the fact
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that the defendants were linked in that armed conflict and that the terrorism law was not applicable and they made reference to the so-called article 141 of the criminal code which is making the exception, this is not terrorism, this is international humanitarian law. why was this being corrected? they thought it was between the defendants and al nusra recently say jabhat al nusra was having its activity in the frame of the armed conflict. they were not to be considered as armed troops seen in a conflict during the period of an
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armed conflict. their activity had to be seen as pure terrorist activity. and that reasoning has been applied by recent convictions in the netherlands in 2013, '14, and '15 for different terrorist activities which were labeled by the defendants as international terror law activities and seen as pure terrorist activities. now, we are monitoring these convictions and will have fine-tuned analysis of the convictions and share it with the anti-terrorism prosecutors of the european union in order to inspire the prosecutors who do go to court. that what is happening in syria, what it's done to establish a
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caliphate, to establish an islamic state, is not to be seen as an armed activity, an armed conflict. it's to be seen as a terrorism legislation. this has been ruled by the european union in the framework decision of 2002, it explicitly -- exception that some of the activities not to be seen as terrorism activity in certain circumstances and that this exception has to be included in the national laws. we have made reference this exception, circumstances, but the judges believe at all times the reasoning of the prosecutors. so it has been discussed in courts. so far the messages of the tribunals are very clear, not in line with international humanitarian law, but in
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application of the national, international terrorism law. >> harold, you mentioned the responsibility to protect which was adopted at the world summit at the u.n. ten years ago with a lot of hope and expectation. our tribute was invoked for the intervention in libya, but of course, has now been facing serious difficulties, particularly within the security council with divergent views on how to be among permanent members. two questions, first, do you think there's a basis for invoking it for action in syria which was missed, and second, is there anything that can be done to bridge the differences now within the security council regarding the responsibility to protect? >> so first of all, as lawyers we talk about weather the option is available.
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whether it's lawful when there is no security council resolution to take action under certain circumstances to prevent great humanitarian suffering. whether it's available is different from whether and when you ought to use it. it just means that the lawyers are not taking the policy option off the table. i really want to make this point very explicit. now, the question, if one country is going to veto every single resolution, do we really believe that the russians or any other country in the p-5 could commit genocide against their own citizens and veto all resolutions and the whole world can do nothing forever? i mean, if this is true, assad could gas every child in syria tomorrow and hide behind a russian veto and the international law of sovereignty
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supposedly prevents this to happen. this is not a pro-peace position. it's a pro-slaughter position. more than that, it's not a noninterventionist movement when everyone has. could you give humanitarian assistance to groups inside of syria or is that a violation of international law? secondly, could you arm certain rebel groups to act inside syria? and a third possibility, could you enter syrian sovereignty for the purpose of creating a humanitarian zone? not that many people are calling for that at the moment although some presidential candidates are. timely, could you enter for the purpose of preventing the mass use of chemical weapons? it seems to me that option is not taken off the table by lawyers and people who say the law is absolutely crystal clear
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have not addressed what you have explained. if you have something you believe to be limit like same-sex marriage, you take the necessary steps to make it lawful. and the notion of a good shareton principle, if someone does it, even if they weren't authorized to do it ahead of time, they shouldn't be punished for it by being prosecuted by an international crime. i mean, how could it be that someone intervenes to prevent genocide and they're accused of committing aggression? that makes absolutely no sense. so international law, there's a claim of a clarity, salu absolutist clarity that has been up for years which you describe. we have to acknowledge the reality, let's not fall back to
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black and white when the reality is very gray. >> you said that lawyers, international lawyer, focus on whether an option is available to policymakers and if policymakers choose to use that option, that's another question. there's a legal option, which of course, is the veto, the right to veto under the charter which the p-5 have. there is now a proposal in the move to get members in the u.n. to sign up to abstaining from the use to encourage the p-5 to abstain from the use of the veto in issues of mass atrocities. now, do you think that should be the way forward to make sure that the veto does not apply and is not an option when mass atrocities are being committed? >> well, it would be great -- the p-5 certain members
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certainly will not fore sake the veto. we had the astonishing spectacle of vladimir putin attacking the u.s. in the fall of 2013 for not respecting sovereignty in syria, threatening attack with regard to chemical weapons when he, himself, just invaded ukraine. that is the height of hypocrisy that we should not clothe in legal protection because it's just not true. now let me go back to a fapmous historic example. during the missile crisis, people presented the option, a false set of options, ground invasion, do nothing or unilateral strike, and the lawyers looked to the notion of an interdiction or a quarantine and some people argued it was an illegal blockade. in fact, most academic
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international lawyers criticized that fourth option. now, a years later, this is considered a decision-making exercise in progressive development of legal arguments that is consistent with better policy. so the law and policy involved in this area, if there's a message that i'm trying to convey here, we know a difference between a flatly illegal option and one which is lawful and should be made legally available. and finally, i think this is very important point, the absolutist rule creates a bias toward inaction, passivity, that is not mandated by the rule, itself. after all, the purposes of the u.n. are to protect human rights so how can it be that sovereignty become the number one value in interpretation of article 2-4? it is not true to what the
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organization represents in this day and age. if that were so, kosovo would have been illegal. if that were so, acting in rwanda would have been illegal. if that were so, stepping in tomorrow, if there was broad-scale genocide anywhere in the world protected by veto would be illegal. >> well, i'd like to invite members of the audience now to pose questions to the panelists. i'll take questions in sets of three and ask that you state your name and give your affiliation and do keep your questions brief so we can get in as many as possible. there's a roving mike. that lady in front. >> thank you. my name is diane. i'm from the center for naval analyses. i have a question for professor koh. appreciate your talk very much. i was wondering what you think the most important things the american military should be doing right now in line with what you spoke about would be.
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>> okay. gentleman at the back. >> thank you. peter, retired state department. in the 19th and 20th century, military aggression was easy to spot. armies moved across borders. my question to you is, what should be the threshold for cyber aggression? >> okay. good. and the gentleman -- >> hi. thank you for a very good presentation. i'm elliot horowitz, i'm a former state department world bank and intelligence community person. i remember vividly after 9/11 as a contractor in the world bank, watching the actions of the george h.w. bush administration -- i'd like to ask professor koh about whether he believes that the actions of
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the george h.w. bush administration post-9/11 -- >> george w. bush. >> george w. bush. sorry. whether the actions were legal or el legillegal. thank withdryou very much. >> first of all, there were several digfferent questions. the u.s. government is important in terms of the geneva conventions. i do not believe the u.s. military would obey an order from a civilian commander to torture somebody in violation of the geneva conventions because they have internalized those rules. i think you heard some of that which actually forced one of the president fshl candidaial candi recant his position and fall back to saying he would do whatever was lawful or something like that although every time he goes on tv, he recants the recantation. the second point makes the pint
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very graphically. let me put it this way. if i'm on my computer in washington and i'm monitoring what's going on in a computer abroad, nathat's cyber monitori. might be cyber espionage. covert action laws. if we determine because the networks that are operating are illegal that we can copy their files, that suddenly becomes computer network exploitation. but if you're determined that somebody is about to use the foreign computer system to destroy a dam or a hospital in the united states, you can block it. electronically. and if you determine at a certain point that this is the widespread offensive intent of the foreign government, let's
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say the sony hack or something, you may be in a situation in which you do a very broad scale immobilization of somebody's system. all of this happens within a split second, and it may be an electronic response to something being detected in the process of what began as simply a surveillance. that's what makes it so difficult. you know, in the old days, someone offensively moved troops across the border, takes three or four days. that's obviously aggression. nowadays, it can happen in less than a blink of an eye and you really don't know. now, let's be frank about this, there are countries with huge cyber capabilities. huge asian countries, huge cyber
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capabilities. who would love, therefore, for this to be a law-free zone because then they could do what they can, and the weak suffer what they must. the group of governmental experts made a different decision in response to u.s. and european support which is that this should be a zone in which legal rules are clarified on exactly this kind of question. and the most difficult question being, what if somebody uses a proxy actor to act instead of acting directly? in other words, it's not a governmental computer that does it, but it's been farmed out to somebody else. to my former state department colleague, i've identified many ways in which i believe that the george w. bush administration acted illegally, foolishly, or both. and much of our time since has been trying to return to a
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lawful path. and there's a great irony here, you know, if a road forks, the classic robert frost road forking. if you're a professor as i am, you can say the mistake was made in 2003, if only we hadn't done "x" or "y," if only we hadn't invaded iraq. you'd be right and then go get another cookie from the faculty lounge. when you're in the government, you're already down the wrong path, you've already gone down the wrong fork and your job is to move that second path toward where it should be. and it takes a long time and while you're on that path, there will be people saying, see, you're still on the same path, you must be just like the other guys. and the answer is, don't you see we're trying to bend it toward law, we're trying to bend it toward justice. we can't go back. we have to go forward.
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and that's what, you know, at this point, we're many years past these ornliginal mistakes d they were mistakes. they were grotesque mistakes. but the job now is to get into this a better frame. what i've stated here is let's not buy into this fiction that there are no rules. there are rules. and let's not be confused with there are times when these rules are violated by the people who are itmplementing them because then you can say these rules have been violated, but we should also be clear there are emerging rules that meet these new situations and we're not in a law-free zone. >> michele, i wonder whether you would like to comment on any points but particularly maybe on the cyber space issue because last year the netherlands hosted the global conference on cyber space and there the conference
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highlighted the need to explore the development of voluntary nonlegally binding norms for responsible state behavior in cyber space. i wonder whether suche efforts undermine international law by allowing a less rigorous path to dealing with this issue. >> i can only give a judicial perspective on how to tackle cyber climatrime, one of three priorities in the european union. it's among the top priorities and it is a border less crime as has been on the line. we see massive use of the internet and social media, encrypted messages used by terrorism. we see that, traffickings, all kinds, are taking place on the dark nets. we had to, last year, some
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operations together with the united states in tackling network, in tackling different malware producers. this is part of reality. not later than last year, the world economic forum established a committee with different players from the public and the private sector in order to see hue together we can tackle cyber crime across the borders and across the sectors. again, this year, a lot of attention was given to the role of law enforcement authorities and judicial authorities. there are digit wfferent ways t tackle the problem but the disciplinary way, bringing together all the expertise, having exercises, simulations, being prepared to face the worst-case scenario, is part of
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the exercise of the committee. we have to get prepared all together. we know that defense is, indeed, having a lot of know how and expertise. well, let's benefit from that expertise. let's benefit from the expertise available. the previous discussions. the solution might not be found in one way or another. it is by having on a specific problem well-fought and refle reflected solution. but the solution is certainly found in a court operation, again. >> let me take another round of three questions. in front. the gentleman. >> thank you. loou lou. i'm an independent consultant dealing with technology. the question i'd like to pose is to take the apple situation and apply it to the eu where the eu commission is responsible for
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establishing regulations as to privacy standards. and let's assume for the moment that in are respect to what just happened in belgium that a phone, an apple phone, was critical in terms of detection of what may or may not have happened. how would the eu regulations apply to the apple -- an apple-like situation in the eu's belgium tragedy? >> good. then there's a lady -- yes. >> hi. i'm a student at american university. professor koh, you talked about areas of the law that had -- need to be translated for today's world and areas of the law that are law-free zones like you called them. i was wondering if that necessity for translation implies inairport inadequacy of the law and why there isn't a concentrated effort to update international law to fit better
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with the modern world and why we're relying on what seems to be an outdated system or if you disagree and think it's not. >> the last row, the gentleman with the red tie. the back row. >> yes. my name is david with csis, formerly with the u.s. state and defense departments mind question is for professor koh. you laid out a set of differences between the bush and obama administrations. however, since i left the u.s. government, in discussions with people who are not part of the united states government, i've -- people have raised the issue of what are called signature strikes. the international crisis group did a paper a year or so ago describing these alleged signature strikes saying there are greater civilian casualties involved with them than there are with other such strikes. as you laid out your validation
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on international law, the use of drones, does that -- does your justification for those extend to these so-called signature strikes? again, i'm not making any statement whether such strikes occur or not. >> okay. thank you. michele, why don't i start with you? maybe on the eu regulations. >> i think that there are ongoing discussions. the one who should respond to this caution is certainly commissioner from justice. from a law enforcement perspective and criminal justice perspective is we have to step up the dialogue and judicial cooperation with the united states. hence, the united states has taken up the responsibility. a lot of prosecutor experience in cyber crime, to ensure the dialogue and judicial cooperation accelerate the cooperation between the u.s. and european union.
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we need action, reaction. we have this kind of reactions. you all know that all the service providers situated on the u.s. soil that we need rapid access to digital and electronic evidence. well, this has been something we have been working on and it is leading to successes. for the decision-making at the high elf levels, i'm not the one who's going to answer. >> harold? >> so to our friend from au, there are no law-free zones. i didn't distinguish between translated zones and law-free zones. i said people tried to call things law-free zones and they're not. i belief in universal human rights and there is no zone in which human rights law does not operate. why don't we have a better
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process of updating it? look at our political environment. we have a congress that can't legislate. we have a congress that won't ratify treaties even if they were negotiated. we have an international process that rarely renegotiates treaties or updates them to the current situation. and we have a veto system and a u.n. system in which certain states have disproportionate and sometimes preclusive power which means that a formal process of updating rarely occurs. which means that if we're going to -- technology moves faster than law that we have to develop these rules through interpretation and that's what these rules that i laid out were. i mean, what i gave you is drawn from lots and lots of digit
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sour dimpbl different sources and the fact someone can't figure it out doesn't mean it's not a law-free zone. david asked a good question about signature strikes. let's be clear the original theory of targeted killing is personality strikes in which you know who the person is and they are a senior leader of al qaeda who's attacking you. the paradigm case being osama bin laden. now, the original notion of a signature strike is can you strike at someone when you don't know that 100% sure that they're there, but all their signatures are there? and in nats sensthat sense the against bin laden was a signature strike because they didn't know 100% he was there. they never saw him. it's just that all of his signatures were present.
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so in the original sense, my view is that the genuine signature strike in which the signatures are a substitute for correct identification of a legal target, it's lawful. what i think has been troubling, though, is the notion of -- uses the notion, okay, signature strikes are lawful to suddenly say, okay, then a house draped in a particular way that could be al qaeda means you can attack the house without knowing anybody who's in there. or that certain indicia allow to you do a broad attack without any real sense of who is there. for example two weeks ago, there was an attack on 150 people in an al shabaab camp. the defense department said we're not at war with al
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shabaab. this has to be explained by self-defense. they were going from a graduation ceremony to do an attack, but we don't know more than that. now, if we're in a war with al shabaab, we should say we're in an armed conflict with al shabaab and produce the information that shows all of al shabaab is interested in fighting united statess as opposed to various international objectives within africa. if all we're hearing is a signature strike you have to explain why someone there, an individual, a personality met a targeted killing standard and why he believed there's a near certainty of no civilian casualties. so again, i'm not saying that the rules have been perfectly applied in every situation. in fact there may be situations that prove why we need to get these rules even more clearly defined, because otherwise the word "signature" could be expanded or misused in a way that people can't recognize. >> good. another round of questions? yes. >> thank you.
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i'm jerry bass, retired, one of the few non-lawyers in d.c. regarding, you know, the wars and, you know, wars change now certainly and it's easy for -- it's good that we have rules of engagement, et cetera, because i think people should have guidelines and rules. but, you know, unless you're there and under, you know, stress or attack, you'll see rules differently than others, possibly, of how you have to defend yourself, et cetera. and nowadays with what's happening with a lot of hiding behind civilians, you know, i.e., we hit a hospital i think in iraq, you know, that's something because possibly there was something there but maybe we just made a mistake. in israel, we see gaza with, you know, missiles being fired and on the other side of that, you know, having to go back and hit
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a hospital or hit a school or something that may be hiding those missiles to protect. with hindsight it's easy to sit back and look at things but we do things differently sometimes, too. you know, we probably would have done something digit possibly in syria if we had known 250,000 people would have been killed earlier on. so how do you, you know, there's all these gray areas but how do you justify the gray areas in all of this with setting up the rules of war where now civilian casualties, unfortunately, happen. i think the drones actually, if i recall, killed 1,500 or 2,000 innocent civilians. it was recorded in the early obama years and maybe they've changed some of that. >> thank you. and there's a lady in the back with a pink outfit. then we'll take a third. >> hi. kaitlyn master, ph.d. candidate,
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cornell university. my question is for professor koh. i'm interested in how you define international norms in regards to international law, and if you or do you see counterterrorism laws ever reaching this threshold? >> thank you. and the third question, gentleman, second row. >> thank you. lee roberts, student at george washington university. my question is for both panelists, professor koh listed upon which i did not dwell special operations regarding specific instance. as professor koh alluded to in 2011 the united states launched a raid into pakistan to kill our capture osama bin laden. while the service members who conducted the raid were technically under the administrative control of the cia, whom the pakistani government agreed to operate in the country. i believe i'm reasonable in saying this distinction is lost
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on the world and indeed on pakistan, itself, who protested a violation of its sovereignty by the american military but did not protest too loudly or long due to the shakiness of the position. is the raid approved by the preponderance of the global community, only louse that's likely to serve as precedent, does the effective violence of the state's sovereignty by unapproved special operations have implications or is this really yet to be determined? >> thank you. so the question that was asked by my colleague, i think the fog of war is greatly diminished by the internet. we didn't have an internet at the cultural revolution. we didn't have an internet at the bombing of dresden. we didn't have an internet when they dropped atomic bombs on hiroshima and nagasaki and thousands and thousands of innocent civilians died, but it was placed under the notion of the fog of war.
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now everybody has a cell phone, everybody has a videocamera. many of those people have access to the internet. claims can be rebutted. also, by the way, claims can be repeated without verification. for example, you said "x" number of people were killed by drone. the united states has not confirmed nor denied those numbers. i know they actually dispute how high the numbers are, so it's worth having some clarification of this point. it seems to me that we are in a period now in which if someone attacks a hospital claiming it's not really a hospital but is actually a place in which it's a disguised attack center, command and control center, you can verify that with modern technology in a way that was not possible before. to my friend from cornell, are you an international relations
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major or law student or -- >> [ inaudible ] >> long had a notion of regime theory. norms, rules and decision-making procedures, they don't use the word law. but the notion of norms is sort of shared principles. when those are embodied into either treaty or customary in r international law, they become law under the statute of the international court of justice. what i'm suggesting here is a set of emerging norms i think should be law and that involves directing them to a law-making exercise or simply being asserted as a matter of law rather than a matter of discretionary policy. now, finally, when abby asked me at the beginning what are areas of controversy, one is what's unable and unwilling? right? the questioner put it exactly right, did pakistan consent to
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the raid on bin laden or were they simply unable or unwilling to prevent him from attacking the u.s. from abbottabad? we don't know. in that situation the u.s. action was essentially done it seems with some sort of tacit acceptance by the pakistani government. some people would want more approval, formal approval by the pakistani government. you're unlikely to get it. if, but as you say f the pakistani government is objecting to their sovereignty being innovated, why did they let a knowledged leader of al qaeda be in a country where they claimed they were not harboring terrorists? right. now, that explains why some of these concepts can be stated
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with some legal precision, but the proof of the pudding is in the application which is a lot harder. >> okay, michele, no comment? another round of questions. >> it's an honor. thank you, guys, for coming today. my name is jordan barth. senior at american university studying government. my question is for both of you. what do you see as the role of the media in this new 21st century war? >> okay. thank you. good question. gentleman -- >> good morning. my name's dave grasso, i'm a retired special operations senior leader and i appreciate your comments about the united
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states military not pursuing actions that are unlawful, unconstitutional. my question would be to you, professor, concerning the authorization of military force. does the current provisions and authorizations portend or to cover future actions on the continent of africa against enemies such as boko haram, al shabaab, and al qaeda and other actions, or is there additional work that needs to be done in terms of assessment, interpretation of the aumf? thank you. >> good. michele, any thoughts on the role of the media? >> i like this question very much. we need a proper dialogue with the immediate impact of incorrect information, it would be devastating on the criminal investigations on prosecutions. sometimes you can lead to criminal proceedings and hence leading to potential risks for
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future events. also the aspect of the social media where every citizen becomes a journalist without any control, without any frame where a lot of incorrect or correct informations might be disseminated in a minimum time also having an impact. what i hear from law enforcement units being operational in paris and brussels is that operations cannot be hidden from the media any longer and become a reality show putting in danger the policemen, law enforcement authorities on the spot, and uncovering also activities which remain out of the eyes of the society at large. and hence give more possibilities for terrorism, new ideas, creative ideas for terrorists in the future. so a good dialogue. what are the ways we can work
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together, what do you need to know, what must society know at this point in time? that would be, i think, a very good -- >> thank you. >> so on the media, i think michele has done a good job distinguishes. every tool is double edged. the media is a huge human rights enforcement device, and has done an extraordinary job, i think, in illustrating human rights abuses that are being unaddressed. on the other hand, the media has a role to play in holding our leaders accountable. and sometimes it hasn't done a very good job. for example, when presidential candidates talk about torturing people, the obvious question is if you take an oath to be president, you'll swear to uphold the constitution and laws of the united states of america. are you telling me that you intend to violate that oath immediately? and if so, why don't you let that be known now so people can decide whether they want to vote
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for a president who's going to be an outlaw immediately? they don't ask that question. instead, they move to other things that are more colorful in their own mind or get better ratings. i think that's been a failure. to my colleague who worked on special operations, as i said, the authorization for use of military force is supposed to address associated forces, which include co-belligerents, which are organized armed groups who entered the conflict against the united states and i don't believe that either boko haram or al shabab doesn't entirely meet those standards. the problem though which i know you understand better than anybody is that we have a congress that refuses to vote an authorization for use of military force. this is quite remarkable, because it's the exact same
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congress that accused other branches of usurping their power. it's their job to authorize force and set its limits and define who we're fighting against and they absolutely refuse to do that. so obviously they could be too busy doing other things like voting on supreme court candidates, but i guess they're not interested in doing that either. so that's too bad. but i think the point that is absolutely critical, i do not know any military unit of the united states government that has ever gone into the field without clarification from their commanders, what are our rules of engagement, and part of those rules of engagement are set by the geneva conventions and the laws and i don't know of any commander, and we have a large number of extraordinary heroic people who do that, unless it's absolutely clear that they're conducting things that are
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consistent with the oath that they took when they joined the u.s. military. so if we're going to hold soldiers to that standard we ought to hold our commander in chiefs to that standard. in fact, it would be interesting to know how many of our presidential candidates could give you a recital of the laws under which they're operating. i know one candidate who could tell you essentially 100% of that. the others i think couldn't. and i think that's what makes her an extraordinary figure. [ laughter ] >> well, i guess we'll take a final round of questions. >> thanks. i'm with human rights first. i don't want to beat a dead horse on this aumf thing, but, and i can't believe i'm going to say these words, but to be fair to congress, you know, one of the -- there are some members of congress who are trying to push
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forward, senator cain, senator flake, the -- a new aumf to govern the new conflict that we seem to be in. and, but, you know, it doesn't help when the president says i want congress to do this, but i don't actually need congress to do it because i have the authority i need under the old aumf or aumfs. and so given the situation with congress and that there's not much progress being made by these two lone senators trying to push this forward, what do you think the administration could do before it leaves office to at least illuminate what it sees as constraints on use of military force? you know, we've had so many hearings where administration representatives come and are asked who are we at war with? and they can't really give an answer.
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and that seems to me to be contributing to a lot of the debate that we have about drones and other kinds of issues that would be a lot more clear if there were a meeting of the minds between the american people and the government about who we're at war with. >> good. thank you. >> my question is how long prisoners are or detainees in guantanamo can be kepts. in the past when the war was over prisoners of war were released shovely thereafter. can people in guantanamo be kept as long as we have a conflict with terrorists? >> final question. yes? the lady at -- >> my name is jennifer clark. we've talked a little bit about the legality of drone warfare. my question is more about the
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efficacy efficacy, what your thoughts are as far as the effectiveness. >> okay. thank you. >> so i think she asked -- her organization, human rights first, has done heroic work on trying to get congress to live up to its responsibilities. i think the administration actually has been pretty clear. they believe that under their interpretation of the 2001 aumf, the administration has authority to fight isil. in addition to al qaeda and the taliban, steve preston, the former general counsel of the defense department last year at this american society of international law meeting, said that the list is exhausted. in other words, boko haram's not on it, shabab's not on it. and they acknowledge that with regard to isshabaab, there may some leaders of shabaab who are
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members of al qaeda and i think that's been true for, you know, there are at least five senior leaders of shabaab who had sworn to al qaeda. this was massively documented. but i think the answer, if you just rely on that, is they can continue to fight al qaeda, they can continue to fight the taliban. they continue to fight isel, but if they're going to actually declare new theaters or fight against new enemies they need new authority. and i don't think that the administration has, you know, the administration is not in the business of saying there are people who might -- we might have is to fight who we don't have authority to fight against. so they haven't been explicit about it. but if you see what have been the limits of what they've stated, it's absolutely clear. you can old prisoners until the end of armed conflict, and we're
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still in an armed conflict with al qaeda al qaeda and the taliban. you actually have to demonstrate that those individuals continue to pose a threat and some people have been held for 13 years can be re-evaluated under the periodic review board. the executive board on periodic review and released. what we see happening now, the number of 91, they say they're going to drop it by 17 in the next few weeks. if day remove all cleared for transfer people, you'll be down to 45 by the end of the summer. and then we're suddenly in a zone where the question is exactly what's going to happen. the president said he doesn't want to leave this for the next president which i hope is true. and we'll see what happens with regard to guantanamo. my view is it should have been closed a long time ago. i don't think it makes any sense
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to the united states to be running an offshore prison camp particularly if the claim is it's outside the scope of law. those claims that it was outside the scope of law have been completely rejected by the supreme court. so now it's fully subject to law. and we don't want other countries to be opening up their offshore prison camps which they claim are outside the scope of law. that's just more legal black holes. so guantanamo never should have been opened. there's no reason to bring anybody there. so presidential candidates who say bring people to guantanamo, why on earth would you do that? i'm amazed by this. people who are in syria, why on earth would you bring them 90 miles to the united states at a time when we are criticizing the other part of cuba for holding people indefinitely and without due process of law? this is the most ludicrous
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suggestion you can imagine. and this administration has brought nobody new to graun taun moe. so the numbers have been dropping slowly. much more slowly than they should have been. but guantanamo never should have been open. guantanamo should be closed and once closed should be closed forever. >> michele, why don't i -- no. all right. this has been a fascinating conversation and i'd like to thank both our panelists, harold koh and michele conixsx for with us today and for the opening way you engaged with our audience. thank you for joining our two panelists. tonight at 8:00 the implications of women serving in combat roles in the military. current and former officials discussion the effects on troop morale, recruitment, and training and how other countries
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have integrated women. here's a preview. >> i spent four years of my life after 9/11 between iraq and afghanistan virtually every year from 2003 to 2013 deployed. i've been in every environment you can imagine across the spectrum and i've served alongside women in iraq and afghanistan and in a variety of roles. firsthand know the value and experience they bring to the table across many venues. they are flying combat air support and helicopters and jets. day are on convoy security, probably the most dangerous job in iraq and afghanistan is driving logistical between operating bases and combat outposts. so my comments and my viewpoints, you know, are from a very different perspective. i listened to the comments coming from kate and elliot about changing a culture, changing, in particularly the marine corps and i've read their -- some of the writings on the topic and, you know, i'm looking at from -- we're talking
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about holding people to standards. the reality that everyone has come out with standards -- of all the services and all the branch the, it was the marine corps, alone, that said the air force, the navy, the army, they kind of punted. they don't want to deal with the topic. the marine corps said, all right, straight-up, you want to hold the women to the standard. all of them from secretary carter, mavis, west point colonel herring who filed the lawsuit against women in combat, they all said the same thing. we just want women to be given the chance to compete at the same standard of the men and be given the chance to fight and die for their country just like young men have been doing since our nation's history. >> you can watch the entire discussion about women in combat tonight at 8:00 eastern on c-span. madam secretary, we proudly give 72 of our delegate votes to
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the next president of the united states. ♪ ♪ >> next a look at the impact u.s. government surveillance has had on the african-american community. from a day-long conference at georgetown university law center. speakers included pulitzer prize winner david levering lewis, who gave a perspective of violence particularly of civil rights leaders and government monitored signs of subversion from slavery to the black lives matter
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movement. >> good morning. and thank you all for coming. i'm bill trainor, g georgetown university law center. it's my privilege to welcome you to georgetown law and conference, color of surveillance, government monitoring of the african-american community. after the events of ferguson, missouri and after the creation of the black lives matter movement, our society has become reexamination of policing in african-american communities. as this all started, i reached out to professor paul butler, and we agreed we, as a law school, should undertake deep exploration of issues at stake, criminal justice reform, civil rights, and i would contend, surveillance policy. and in the past year and a half, we've had a series of important conversations at the law school that have focused on policing in
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african-american communities. last year, in the wake of michael brown's death, professor butler and other members of the faculty led a public forum here called a conversation about ferguson, and then in the wake of freddie gray's death, in baltimore, in may of last year we held another symposium, the fire next door. and then this fall, georgetown law journal hosted symposium, police state, race, power, and control, which had the goals of identifying and analyzing the underlying causes and potential solutions to racialized police violence in america. and today, we're continuing this important conversation with this symposi symposium. i'd like to thank everyone here for being part of that conversation. we'll begin with conversation -- these events have begun with
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conversations with professor butler and the executive director of our center on privacy and technology, alvero bedoya, the co-host of the conference. now we're a year or two into the debate of policing in black communities, and we're also engageded in a separate, robust debate about government surveillance, and our conferences co-hosts, professor butler and professor bedoya, argue that there are unexplored connections between these two debates, and i agree with them. and i'm just so delighted to hear where this colloquy will take us. so, our speakers today, extraordinary group of speakers, and their forces, and their fields. you'll hear from the pulitzer prize winning biographers of martin luther king jr. and debbie lee deboyce.
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you'll hear from senior officials at federal bureau of investigation and the department of justice, and you'll also hear from the advocates and activists using freedom of information act to lay bear what they see as excessive government surveillance. you'll hear from technologists and leading scholars in the fields of law, anthropology, and other fields. so, i'm particularly proud that this conference strikes upon several of georgetown law's strengths as a faculty. criminal law, criminal law practice, civil rights, and privacy and surveillance law. now, recently, we made a concerted effort at georgetown to offer hands-on technology intensive courses. so at georgetown our law students, law students, are literally building apps, learning how to code in python, and working in materials with
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m.i.t. engineers to draft privacy laws, and we think this technological background expands their legal tool kit, to address public focus at the center of our legal education. and i think that this conference is a testament to that diversity of thought. so, welcome all. thank you, again, for coming. and it's my pressure to introduce to you professor butler, a scholar of criminal law, race relations, and critical theory, and also a former federal prosecutor. professor butler. [ applause ] >> thank you. good morning, welcome to georgetown. my name is paul butler, and i represent the united states. [ laughter ] that's how i used to start my opening statements when i was a trial lawyer with the department of justice. as a former federal prosecutor,
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and as an african-american man, i've experienced all sides of the themes of this conference. from my experience as a law enforcement officer i understand importance of using vast resources of this great nation to keep people safe from harm. the bad guys aren't shy about using the latest technology. and i don't think our government should be either when it's fulfilling its core mission, to keep us safe and free. as an african-american, part of a community of people who, against all odds, are incredibly patriotic. too often we're treated like enemies of the state. what does it mean when the long struggle for equal justice is seen as subversive? what is it about black people being free that threatens the identity of the united states?
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this conference happened because our dean, bill treanor, thought it was important that our law school play a role in this moment in our history. last year, as ferguson erupt, and then baltimore, and then a movement for black lives responded, my colleagues and i wondered about the role of law schools in earlier social justice movements. where were law schools, for example, during civil rights movement of the 1950s and '60s? the sense that some of us had is that, many students were activists but law schools as institutions didn't show up, as well as they might have. so, i'm proud to be part of this community at georgetown law that has shown up, and today we're demonstrating our strong commitment to social justice by sponsoring this important conversation. there have been other gatherings at other places that have tried
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to understand what it means for a south carolina school safety officer to throw a teenage girl on the floor, what it means for a cop in tyler, texas, to order sandra bland to get out of the car because he doesn't like her tone, what it means when the nypd putter rick gardner in a chokehold for selling a lucy cigarette. this is the first major conference to consider the role that surveillance plays in creating those tragic circumstances. one and 1 million, that's how i think of the peril and the promise, the promise and the peril of this moment. we have, for a few more months, one african-american president and, for the foreseeable future, 1 million black people in prison. that's around the largest percentage of incarcerated african-americans in our
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history, and i think it's fair to ask what happened, why are there more african-americans under criminal justice supervision in 2015 than slaves in 1850. what happened was a new form of control, social control, that was enabled by a racial gaze. so the war on drugs is within example. if you walk out the doors of the law school and jump on the red line and go to the national institute of health, they'll tell you african-americans don't use drugs more than any other group and don't sell them more than any other group either. people who buy drugs report buying them usually from someone of their own race. but if you go to a different government agency, united states department of justice, you can actually walk there from here and ask, who's locked up for drug crimes, 60% are black. 13% of people who do the crime, 60% of people who do the time,
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and that's because of this racial gaze that sees and does not see and it turns out, there's an important relationship between where you look and what you find. my friend, who is a d.c. cop, is going to visit might criminal procedure class to give my students a realistic view of what it's like to be a police officer in this town, and he's going to invite them to join him in a squad car at some point to go on a ride-along, and he has this game that he plays called pick a car. he tells the student during the ride-along to pick any car they want, and he will stop it. he's a good cop. he waits until a legal reason but it never takes more than following one four or five blocks and they inevitably commit a traffic infraction. he can stop anyone he wants in a
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car. any police officer has this power, so this racial gaze has brought us the offense driving while black. sometimes people say, if you're not doing anything wrong, why would it bother you that you're being watched? but surveillance always demands a response, a performance, a submission. baltimore erupted because freddie gray dieded in police custody. how did mr. gray come to the attention of the police? because he resisted surveillance. he saw the state and the form of two cops on bikes and he turned away, he ran. the police had no reason to suspect him of a crime, but because he did not perform appropriately in response to their gaze, they detained him, and the police have this power, because of a case called illinois versus ward law. the supreme court said, if the police see someone who
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demonstrates that they don't want to be around the police, the police can detain them, just to see why. the police don't need any other reason to stop you other than the fact that you've tried to evade them. but here's the kicker. the court has limb tited this police power to high crime americans. that means latin american or african-american towns if you see the police and you run, the police have no legal authority to stop you. but if you're in ancosti and see the police and run, the police can chase you, just like they did freddie gray, and detain you. this is the racial gaze at work. when you're in the hood and the state looks at you, you must communicate submission or else. i hope you've all read the department of justice report on
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f ferguson. it has startling date tap every time they use dogs, they use them against african-american. what's even more revealing is stories. we can read those as stories of surveillance. the story about mike chilling out in a public park, in his car, after playing basketball, the police roll up and, for no reason, ask if they can search his car. mike cites his constitutional rights and says no. he turns down the request for surveillance. the cops respond by asking him for i.d. his license says his name is michael. the cops say you told us your name was mike, so you're under arrest for providing false information. they also arrested michael for not wearing a seat belt. he had been sitting in a parked car. another story in the ferguson report illustrates terror of the racial gaze. she had called the police because he was beating her up. by the time the police got there, he was gone.
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the police did surveillance, they looked around the house and said it looks like he lives here, does he. she said yes. the police say, well, his name is not on the occupancy permit, you're under arrest. when that happened to another woman in fer busson, she said she would never call the police again, she didn't care if she was being killed. when the state abandons you, it never leaves you alone. i always think of that line from the socialologist avery gordon when i read the ferguson report. the black people of ferguson have been abanned by the state. black people think they must be watch, we're dangerous, and the racial gaze is required because of the way we act, we deserve all of the surveillance we get. when we think of the most vulnerable children in our society, those most at risk for violence and poverty, if you labeled them as thugs or super
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pred sorer predat predators. that creates positive outcomes for the kids, it leads to the racial glaze. in closing, i want to thank dean treanor for this generous support of this conference, our staff who has worked incredibly hard and especially our students, scholars, activists, intellectuals. we're having this conference mainly because of and for you. you're the people who made the strongest demands in our institution with regard to these matters. so this is a movement that's taken off on campuses all over the was i'm proud to say it's taken off at this law school. some cynics have said students are wrong to think that universities can be anything other than corporate entities and the best we should expect is that they bring people together who can make their on formations. what i hope we do today is prove those cynics wrong. we can show that georgetown university law center, at
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least,s a site of progress and transformation and positive social change. we can help move to a place where officers are not overseers, in the words of krs-1 but we can push back against the racial gaze, and thanks the presence of c-span, this time the revolution is being televised. when the dean asked me to think about the kind of conference that we could have here and how we could make a difference in this important moment, i had to make one important decision and i got to say i nailed it. i asked aalvero bedoya in helping me and planning the conference. he has a lot of friends here. if you want something done right with a commitment to social justice, close attention to details, ask alvero to help you do it. none of this would have happened without him. we owe him a huge debt of
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gratitude. he he'sing going to come forward and tell us how the day will proceed. please welcome him. >> thank you so much, paul. many of you are paul's friends so you know paul is an inspiration to learn from and to work with, and i've not taken paul's class but i've already learned so much. thank you. thank you, dean treanor. this i haven't would not be possible without the support of dean treanor, the ford foundation, open society foundation, media democracy fund nor would it be possible without the hard work of our av team, facilities time, monica ramirez and katie evans, thank you. 52 years ago, in oslo, norway, martin luther king accepted the nobel peace prize. the day before he accepted the
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award, 40 churches in mississippi were firebombed. civil rights activists in philadelphia and birmingham were assaulted, and some of them were killed. and yet, in the face of these attacks, dr. king proudly accepted the prize on behalf of the nonviolence movement. he declared, and i quote, i refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become reality. he was 35. and at the time, he was the young person whoever received the nobel peace prize. soon after dr. king returned from oslo, an anonymous letter and package made its way to the king family home. it came from the fbi. the package contained a recording of allegedly secret
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audio, definitely secret, of dr. king's alleged extramarital sexual encounters. the letter, threatened blackmail. they are out to break me, dr. king told a friend. they are out to get me, harass me, and break my spirit. it's tempting to attribute what happened to dr. king to racism, and specifically the racism of one man, j. edgar hoover. the truth is more uncomfortable. because what happened to dr. king was part of a pattern of surveillance that is older and newer than j. edgar hoover. our government didn't just surveil martin luther king, the black panthers, malcolm x, whitney young, muhammad ali. before j. edgar hoover, a special division of the united states military intelligence division, devoted to monitoring, quote, negro subversion,
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conducted surveillance on w.b. deboyce and other. this isn't a thing of the past. last year the intercept reported activities of the black lives matter movement were being monitored by the department of homeland security. if you can name a prominent african-american self-rights leader of the 20th or 21st centuries are, chances are signature that he or she has been surveilled and usually in the name of national security. you think that when congress debated nas reform all of this would be in the front of their minds, particularly because just a few months after the snowden leaks, the nsa revealed that, in addition to the fbi and their own wire tape of martin luther king jr., the nsa wiretapped dr. king. with a few important exceptions
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congress didn't talk about any of this in. in fact in the senate it appears that, during the two years of nsa debates, no one ever spoke martin luther king jr.'s name. frankly, most persamericans wer talking about it either. instead, it seems as if we're two separate debate. we're having a debate about national security surveillance and a separate debate about blissing in black communities and there's far too little recognition that for most of american history some of the most prominent victims of unjustice national security surveillance has been african-american. nor, is there much recognition that the pervasive policing of black communities is increasingly made possible by surveillance technologies and some surveillance laws that were developed for the war on terror. in is a color of surveillance
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but not enough people are talking about it. we're here to change that. we'll start with some history lessons and start with the beginning of our country. professor brown will explain how enslaved people in colonial america were controlled in part through systems of surveillance, lantern laws, slave patrols, even rudimentary biometrics. we'll jump to the early 20th century, professor lewis will discuss the surveillance of w.b. deboyce and his contemporaries. back-to-back presentations the pulitzer prize winner of martin luther king. and the one person in the executive branch who consistently speaks about what happened to dr. king is the current fbi director, james comey. how has the fbi truly righted the wrongs that created that
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legacy? after that, we'll turn to the present day, the years after 9/11 saw the creation of a vast domestic system to find and stop terrorists. professor aziz will ask, how did that dragnet affect the black community and brandy collins will tell us about perhaps the most salient example of that impact. dhs monitoring of black lives matter. interspersed out our history class we'll learn a lot modern surveillance technologien claire garvey and jonathan frankel will tell you about facial recognition technology, how it may misidentify african-americans at higher rates than whites. a deep dive into predictive policing and sentencing. professors ferguson and starr will tell you about the constitutional issues raised by


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