It’s an organizing world, yes it is… Kingsley Dennis, at the Centre for Mobilities Research (CeMoRe) at Lancaster University, highlighted this creepy bit of technology, “directional virtual fencing”, in the CeMoRe blog:

1. CeMoRe blog noted the report, as indicated above.

2. CeMoRe sourced the report to Roland Piquepaille’s Technology Trends, a pretty interesting looking tech blog in its own right.

3. The RPTT write-up sourced the original research paper on wired bovines to the Rangeland Journal (no kidding).

I can’t figure whether this should be featured in the Annals of Improbable Research, Wired, Tales From the Crypt, or what…

Here’s a challenge: read the report, then go read Noah Shachtman’s and Sharon Weinberger’s reports on brain-machine interfaces (here, here, here). Then read these related research articles on neutrality in cyberspace and  prosecution of thought crime… anyone feeling queasy yet?

Some interesting follow-up to Daniel Drezner’s paper "Public Intellectuals 2.0", which I noted here a little while ago. See Barry Gewen’s comment in the New York Times on it, Gewen’s citation of an earlier Russell Jacoby essay on the same subject in the Chronicle of Higher Education, and Drezner’s response to Gewen. Some flavor:

Gewen:

Drezner’s impulse is to be inclusive: if you’ve written a serious book that has attracted a modicum of general attention, you seem to qualify as a public intellectual. I would be more restrictive, and I’d go back to the original New York Intellectuals for guidance.

  Drezner:

Here’s the bias: in the past, when literary critics traversed into the fields of social science, they were seen as public intellectuals. Why, when social scientists return the favor – like Tyler Cowen, Richard Posner or Gary Becker – are they viewed as arrivistes and/or methodological imperialists?

 

As part of Opinio Juris’ insta-symposium on the Boumediene Case, University of Virigina Professor of History Paul Halliday has submitted an intriguing essay on the uses of history and analogy. Halliday, who researches "how law accommodates new political ideas and social practices," critiques some of the analytical logic in the case:

Chief Justice Roberts is right: Guantanamo is “unique.” [p2] But can that which is unique be analogized? If not, why work by analogy? Yet this is what the justices have generally sought in the past. They ask, what case can I find that looks like today’s? Simple answer? None. To ask this question of the past is to seek what is not there: the present. Approaching the past this way means missing the chance to develop the kind of historical analysis that might help us think our way into the problems we confront today.

In the past, I’ve had to work against my own outsider’s prejudice that legal research and analysis is rigid and mechanical, less open to conceptual innovation than are other fields and disciplines of inquiry. That’s not entirely fair, but as Halliday points out, there are law-relevant issues that can be fruitfully dealt with through alternative scholarly lenses and approaches. Conversely, historians and historical practice have also been unfairly criticized – for being deficient in theoretical grounding, unable or unwilling to extract generalizeables from historical narrative, and getting hung up on the contingency of facts as they’re presently understood. Problems of "uniqueness" are endemic in historical practice (it’s a huge theme in Holocaust and genocide historiography), which isn’t to say they’re overplayed or irrelevant – as Halliday rightfully suggests.

Halliday’s essay is particularly interesting for some of the historical data he’s excavated on jurisdictional exceptionalism:

Even with over 11,000 people using habeas corpus in the 300 years before 1789, no case can provide the strict analogy the justices seek. That said, many come close: “prisoners at war” in the 1690s; Frenchmen and Indians in Bengal; writs used across centuries in a host of “jurisdictionally quirky” [Roberts, p28] settings from Berwick to both Bostons, and in Barbados and beyond. So what? Looking for a case is to overlook how serious historical explanation might better inform contemporary legal thinking.

This is what really got my attention. With everyone thinking of insurgent sanctuaries as territorially contiguous rear bases and terrorist havens as inaccessible mountain warrens or training camps in Waziristan, legal scholars have been exploring the broader problem set of refuge, safety, and sovereignty – from political questions of jus ad bellum to strategic and tactical application of jus in bello. This is a rich field of current thought, and it far outstrips anything available in other disciplinary literatures. The guerrilla model has primacy right now, as it should; the immediacy of security threats requires that it be so. But for holistic treatments of the problem, the sort that attempt to understand the history of the concept and they way it informs contemporary thought and practice, legal and law-oriented research is leading edge.

Historical practice as pattern recognition: 

What we find in thousands of cases across thousands of miles are patterns revealing principles about habeas corpus. Recovering such principles through historical analysis provides us with ways of thinking not only about the past, but about our present, ways that may surprise and help us—regardless of our partisan or jurisprudential commitments—because they bring us into our questions from unanticipated points of entry.

Consider three principles Justice Kennedy identifies out of the past:

1) habeas corpus rests on a theory of power, not a theory of liberty [p10],
2) it was “an adaptable remedy” [p50],
3) by which “liberty and security can be reconciled.” [p70]

That habeas rests on monarchical power, not proto-liberal ideas, may sound disturbing. But ideas about the prerogative, taken up by royal justices around 1600, built the legal refuge to which later ideas about liberty could resort for safety. A prerogative writ made a legal unity of otherwise quirky places. Place was not the point in habeas litigation. People were: the king, his officers, and their accountability to the king, through his justices, for their detention of his subjects, both “natural” and “local.”

There’s more, and I don’t do justice to Halliday’s specific work on habeus corpus or the full essence of his piece, which gets into important points on the adaptability of law and reconciliation of liberty and security. I thought it was important to point out Halliday’s distinction between place and person, especially after this week in the news.

In practice, we’ve seen the problems that come up when trying to decipher militant network architectures absent sufficient geolocational data. Places can exist in the absence of people. But people don’t exist in the absence of place. Everyone’s located somewhere, and that somewhere is always, always a physical space. The wrong people can, all too often, find themselves in the wrong place at the wrong time. Our challenge is pinning the right people, the one’s we’re looking for – whether it’s bin Laden himself or fugitive Balkans war crimes suspects –  to the right location at an exploitable moment in time.

Peter Spiro at Opinio Juris has an interesting comment on Adam Liptak’s New York Times/Int’l Herald Tribune report on the hate speech vs. free speech debate, which looks especially at differences in the way the issue is perceived in the US and the way it’s treated elsewhere. According to Spiro:

Together with Jeremy Waldron’s recent New York Review of Books piece on the subject, could this be the leading edge of possible constitutional adjustment?

It would have been mostly unthinkable as recently as 15 years ago. When the US ratified the ICCPR in 1992, everyone was on board with the reservation from article 20, including all the big human rights groups. That would probably play out the same way today, under the categoric rule of Reid v. Covert that treaties can’t trump the Bill of Rights.

But of course there’s a back door to the same result, which is through judicial interpretation. There are the obvious recent precedents for using international law sources in constitutional interpretation, although all in the name of expanding rather than restricting rights. But there’s also a line of less obvious cases (think consular courts, extradition, and foreign claims settlement) under which the courts have shifted rights sub rosa to conform with international realities. Especially to the extent the hate speech prohibition hardens at the international level, I wonder how long the US will be able to go it alone on this.

Actually, it would have been unthinkable slightly more recently than that (to split temporal hairs), for entirely different reasons of foreign policy: it would have removed one more excuse for non-intervention in Rwanda during the 1994 genocide. No joke. I’ll explain.

Last week I wrote up a short note on a great law article that assessed neutrality in cyberwar. I didn’t get into the details, except to suggest that it was the first effort I’d read that bridged cyber issues and radio broadcasting. The conceptual leap(back) allowed for references to work by Jamie Metzl, who once wrote an outstanding analysis of the international law of radio jamming and the Rwandan genocide of 1994. The crux of Metzl’s work was U.S. non-intervention in the Rwandan genocide, which has been dealt with extensively elsewhere, notably by my second-favorite brainy redhead, Samantha Power.

The narrower issue, and the piece most relevant to contemporary problems of internet-linked radicalization and terrorism, is the way radio featured so prominently in the preparation, mobilization, and direction of collective violence during the genocide. Radio absent an internet connection is scarcely given a nod these days, an almost retrograde technology. For a brief moment in time in the 1990s, though, it was the information medium in circumstances of materially unclear lines of command, control, and communcation (see here, here, here, here, and here). Forget written orders and documents that function as smoking gun evidence of criminal intent in war crimes trials. In primarily oral societies, with high rates of illiteracy, "radio is king". There, traditional sources of evidence and channels for C³I simply don’t work the same way. Skeptical? See here for the way archived radio transcripts can be used to build just such a case.

My point: in his article, Metzl looks to the potential for jamming hate radio broadcasts, as the one kind of humanitarian intervention that could have and should have happened in the Rwanda case. It should have been an uncontroversial approach to mitigating the slaughter.

So why didn’t it happen? Metzl’s findings revealed some grossly cynical justifications for non-jamming. The one that’s germane to Liptak’s NYT article: the legal opinion that such intervention might have constituted a violation of free speech provisions… somewhere. I’m not kidding. Memory is fallible, and it’s been at least six years since I read the article, but that’s the essence of Metzl’s expose.

I can’t help but think that individual expectations of free will and self-expression at home can and will shade perceptions  of others’ free speech abroad. Which, paradoxically, does little for the way latter-day terrorist-linked media and communications are handled.

So what does this tell us about how constitutionally-enshrined free speech provisions can color threat perceptions and foreign policy responses to them? Trying to reconcile the two issues feels like an exercise in policy gibberish, but there you have it.

I’ve just started following a number of blogs specializing in international law and national security issues. I’m impressed at the vigor with which some legal scholars have taken to blogging. As a thinker attuned to the laws of armed conflict/international humanitarian law, but not trained in law as such, I’m also grateful for the translations they provide from legalese to normal academickese so the rest of us can keep up. From Bobby Chesney at National Security Advisors:

Two momentous decisions this morning. In Boumediene, the Supreme Court holds 5-4 that (i) GTMO detainees are protected by the Suspension Clause and (ii) the Detainee Treatment Act review system does not provide an adequate substitute for habeas because it does not authorize the DC Circuit to order detainees to be released, does not allow detainees to argue that their detention exceeds the scope of the executive’s detention authority, and does not allow presentation of new evidence.

Meanwhile, a unanimous Supreme Court holds in Munaf that a US citizen held in US military custody in Iraq, under color of the authority of the MNF-I, has a right to seek habeas relief but that habeas jurisdiction does not empower courts to forbid the transfer of such persons to Iraqi criminal custody. The fact that the Iraqi criminal process does not satisfy US constitutional requirements is not relevant, the court observed. More significantly, the court also held that judges should not second-guess the State Department’s determination that such persons will not face an undue risk of torture upon transfer. That aspect of the holding has implications for the larger issues associated with extraordinary rendition in general and GTMO transfers in particular.

In short, a big defeat for the administration in Boumediene, but a big victory for it in Munaf.

Meanwhile, Opinio Juris has initiated an "Insta-Symposium" on the Boumediene Case, with a bevy of large brains weighing in on the decision: 

Opinio Juris is very pleased to announce an “insta-symposium” to discuss the decision. We have an amazing line-up of guests, including Geoff Corn (South Texas), Eric Freedman (Hofstra), Paul Halliday (Virginia), Chimène Keitner (Hastings), Jenny Martinez (Stanford), Michael Newton (Vanderbilt), Deborah Pearlstein (Princeton), Patrick Philbin (Kirkland & Ellis), David Scheffer (Northwestern), Beth Van Schaack (Santa Clara), Steve Vladeck (American), and Ted White (Virginia). 

At time of writing, a number of posts have already appeared. Worth following.