Transcripts For CSPAN3 Historians Discuss Use Of Law In Conflict And War 20170801

Professors yum harvard, yale, and georgetown university. Its an hour and 45 minutes. Thank you for coming. Thank you so much for coming. Let me first say since this a larger event for a conference, im so honored to be here as your president this year. Its really a thrill for me to be working with all of you this year. And i am also so pleased to be working with adrian lynn smith, our Brilliant Program cochairs. So this is just one of the many events. And for the viewers at home on cspan, you sure want to google it on cspan because we do this every year. And im so glad we have a chance to broadcast this program to other viewers. Diplomatic historians traditionally, the sort of the i think of this as the, you know, a classic sort of position thats now i think under contestation within the field. I think the traditional take on law and Foreign Relations history is that this isnt really what drives the policy, that law doesnt play a causal role. Its a feature of an environment thats determined by other things. And that idea has been questioned in the work of more recent scholars ben coats has a new book, for example. And more new works have been circulating around for a while now. So for that reason and many others, im so happy to bring to you today a panel on the question of whether law can constrain war. Perhaps thats the area we think it least likely to be of any effect, can contrain war. And what do historical examples, how do they help us think about that. We have four brilliant scholars and writers here today. Theyve all written important books that are relevant to the topic. And two of them and ill go through bios in a second have served in two administrations as well, the Bush Administration and the Obama Administration. Im going to do very quick short intros, and then im going to turn it over to the panelists who are going to speak each for about ten minutes. And then ill ask them questions. When we go to q and a, please go to the microphones. Weve got this great crew from cspan here today, and we really need to help them out by making sure your questions can be heard by people watching this later on. So our first speaker starting at the end of the table is john witt who ive known for many years through history circles. Hes the duffy class of his most recent book was a finalist for the pull litser prize. It also won the American Bar Association civil gavel award. John is now the head of Davenport College at yale. And hes working on his next book which is the the fund, which is about the foundation that helped to finance the effort which eventually became the brown vs. Board of education. Helens book the image before the weapon the history between it combatant civilian was awarded the International Theory prize. She will be a counsel of Foreign Relations fellow with the International Committee of red cross in 2018 to 19. Then well hear from jack. Hes the professor at harvard law school, a senior fellow at the Hoover Institution and cofounder of law fair. It used to be this obscure law log and now all of a sudden is at the center of american politics. If you dont know it, just google it and youll see what i mean. During the Bush Administration he served as assistant attorney general in the office of Legal Counsel from 2003 to 2004. His publications include the book which i think is a model, sort of inside memory of how things work especially in regard to law in a president ial administration. And finally rosa brooks, someone who writes with as much wit as she does brilliance. Shes professor of law at georgetown and also a senior fellow at the new American Foundation and is most recently the author of how everything became war and the military became everything. She served as counselor under secretary of defense for policy in the Obama Administration. And was awarded the medal for out Standing Service in 2011. Okay, now is john witt. [ applause ] thank you, mary, for that really generous introduction. Its a real pleasure to be here today. The question is can law constrain war. Now, the answer to this question put this way, i think as a first blush relatively straightforward. So lets just say sometimes it can and does though all too often and usually not when wed like it to. A difficulty with starting with the constrained war question is that im not sure theres a proior reason. Initial youre a pacifist you think thats a good thing at least sometimes. Maybe a better question for a crowd like this one would be whether the law is variable for the study of warfare if what we want to do is understand the nature of Armed Conflict. And the way to pursue this question would be a ask how and whether the law shapes war. And since antiquity there have been doubters. Brute strength, technological stages, economic model, the political organization, even blind chance have left before explanatory variables and dominate the field. We could list skeptics. But my own favorite skeptic is that great foreign historian of relations poncho via. An american commander sends via a pamphlet recounting the war, and the whole episode amused via greatly. He said were not going to pull out of our pockets and read over the rules, he tells reid. Certain versions of that realism are often wellwarranted. Maybe better warranted. But the historians version of what i want to call the via nesque critique, i want to call this approach the compliance model. In the compliance model the historian identifies rules and imagines that their reason for being is to make the world conform to their model. And then she holds those rules up to the conduct to a conflict under study and evaluates their effects in the world by reference to whether the conduct complies to the model. And this is the wrong way to think about the significance. It presupposes that the law will function like a cop on the beat, dispensing force to make the world swerve to its vision. The compliance model puts its vision into the pugz of a judge or prosecutor. More over the compliance model is closely connected to what i think of is a widespread disillusionment of an idea of wartime. So it looks like the opposite of the compliance model but actually its twin. So the compliance model turns out to be the first stop in a shuttle that very quickly arrives at the station of lost faith. It all too often looks like how the german chancellor after invading belgium in 1914, which is like a mere scrap of paper. So the compliance model and the scrap of paper idea are flip sides of the same mistake. They imagine that the influence of law on war and unidimensional, when in fact its multifarious. Multifarious is maybe a 10 way, maybe just a 5 way of saying there are many shapes of law. Here are two quick examples to get us started. Often law functions as an instrument or a resource. So a favorite of mine drawing from the history of Foreign Relations is the famous trent affair in 1861. This is the episode where the popular naval commander charles willics stops a vessel named the trent, seizes two commanders from the trent. And while theyre on their way to london. Now many at the time worried this would bring on out raged United Kingdom into the war. Until secretary the state grasped even if the u. S. Had the authority to seize trent youll see why that might matter had a procedural obligation to bring the trent into an american port to have the seizure confirmed by a federal court acting as a prize trubunl. Historians have treated this legal controversy as kind of a farce. But i think if we look carefully, what we can see is a legal rule offering secretary of state stuart a viable way to save face at home. This is something the law offered as a resource in a situation that one recent historian has called lincolns cuban missile crisis. There are all such instruments of examples. Another example, unanticipated effects, lots of example said here. One example comes to my mind is the leaver code, restatement of the laws of Armed Conflict issued during the american civil war. And this code is a founding moment in the humanitarian law of tradition. Its also a document that i think has some responsibility in the death of the 55,000 men who die in prisoner of war camps. The south refused to exchange africanamerican captured in union uniform. Leiberman refuses to take the code humanitarian catastrophe ensues. Its making it that much easier for the union to stick to that position. Unanticipated positions like this are abound in war. They all thought that the entire body of civilizing rules for war might have the effect of making war longer, more frequent and ultimately worse for humanity. So these two examples i hope dispel the compliance model and its scrap of paper sibling. The law functions in both of these as a social formation nested among others each with some degree more or less of significance of shaping and reshaping the conflict of which it sits. The abortive treason prosecution of Jefferson Davis might offer us a third mechanism for the law significant. Weve had instrument resource, unanticipated effects, and i want to talk about a third through Jefferson Davis. And this one is different, i think, this effect because its distinctive to the particular internal structure of the law. Lets label this mechanism laws paramaddic et. And it involves the ways law operates in paradigms. The jeff davis case might seem like confirmation of skepticism. Once again the compliance model is misleading. For the prosecution of davis is a story about what follows from and what is entailed by the logic of a paradigm whose internal structure imparts leading to events. So social formation whose structure and logic are normalized around a legal structure. It has consistency, rationality, and prospectativity. And that internal logic though violated all the time in daves case the consequences of those are apparent. For four years the union had treated the conflict for at least in principle part, a war. The trent affair and the legal code presupposed the these obligations raised the costs of reserving course of the conflicts end and treating the south and its leadership as merely rebels subject to treason prosecution. Its no rebuttal to this to say that letting davis go was dictated. Those imperatives and johnsons disposition were themselves conditioned by the expectations the laws of war had produced during the previous four years. Nor is it rebuff to paradigm story to observe that the north could have prosecuted davis and very nearly did, indicting him not once but twice. The paradigm account says that it had logical entailments that raised the cost of certain moves, lowered the cost of others and helped shape all of them. The paradigm account, that i tried to set up briefly here are essential here because of the way we understand warfare are by themselves shaped by war. Its embedded in those goals and partially produced by those goals. It constitutes and embodies them. Consider for example why leaders adopt gureela warfare. It might have been impossible to over come or consider for that matter whyal general washington thought it so important to fight and survive set peace battles. These were choices made according to visions of the kind of country leaders wanted to lead. Visions that were embodied in the constitutional International Law positions of the Continental Congress and the confederacy rr respectfully. Thats what were seeing right now with old paradigms being put to work in new settings. Theyre the master meminism for the social significance of the law. Its about finding devices that have meaning because of the significance the law creates, the unanticipated consequences of humanitarian law are paradigmatic in a sense. So can law constrain war . Well, yes it can because law constitutes systems of meeting with claims of legitimacy and authority that shape law in any number of ways and cant help but do so. These also do many other things other than constraining war. But do they shape it in powerful ways is undeniable i think. And this i think is why the field and this goes to some of marys observations in the opening seem so rich for historical and socialological inquiry right now. And what i hope well see is laws that fill in the story of paradigmatic social significance. Thank you very much. Thanks. Hi, thank you so much for the kind invitation. Im truly honored and humbled to be here on this panel with other scholars who work i have so admired and influenced my own. I do approach the studo of the laws of political theorists not explicitly as a historian or lalawyer. More specifically i aim to produce exercises in thinking. Exercises in thinking as he evocatively explains are deeply formed by not wholly determined. The quote repository of distinctions, categories which continue to ori want us in the present. Keeping this in mind i have attempted to make three contributions to the studo of the laws of war. First it can be usefully analyzed as an archive and with special regard to what anne calls the rubrics of rule. After all its been wellestablished that the histories of the laws of war have been inexplicitly intertwined as the laws of war were conceived in what ray charles calls elsewhere, a second, i have argued that paying attention to attempts to define and regulate particular categories and concepts of war and as ill talk about in a minute superfluous injury and suffering paying attention to these illuminates not only the indeterminancy but also the shifting of power to define the law itself. These exercises in thinking offer us resources otherwise over looked or ignored by which to both apprehend and judge or present moment. Collectively, i would argue this is of significance importance to the study of the laws of war. International law is inherently geneological. The past far from being gone is constantly being retrieved as a source of rationalization of present obligation as john already mentioned. More broadly what the history of laws of war suggest is to fully comprehend the constraint of war as we were asked to do so today, we must think about the broader they support. After allats a minimum the evaluation of laws of war be it terms of restraint or otherwise is predicated upon a prior agreement of its purpose or utility. And a simple folk focus on restraint for example, on the one hand if we anticipate the International Humanitarian law reaffirms violence in the words of one scholar, then restraint may be understood quite differently than if on the other hand, we believe that laws are quote justified in impracticality to International Officials and what theyre required to do in the heat of the battle. Or further that the laws of war reflect, quote, compelling considerations of humanity, of the survival of civilization, and the sank date of individual human beings. My point is therefore simple. Our definition of restraint emerges from our understanding of the purposes of the laws of war and is dependent upon particular construction or definition of what it means among other things to be a legitimate combatant or illegitimate or lawful compat want. Definitions which we know are also dependent upon our very notions of war itself. As i demonstrated in my previous work, the laws of war not simply regulated standing outside or simply controlling war on a compliance approach but are also productive. Take for example the prohibz against unnecessary suffering and superfluous injury. The prohibition against superfluous injury and unnecessary suffering was codified in the 1977 prohibz Condition One to the 19 article 35 details a general junction codified in the 177 convention that the rights to adopt is not limited. That means there is a limit of the exercise of force and the pursuit of victory. According to the commentary, it is an absolute constraint. The exact meaning of superfluous injury and unnecessary suffering are among the most unclear and controversial rules of warfare. The lack of consensus over the precise meaning of these terms and a desire to more fumy define their content took on a special importance during the four years of diplomatic conferences which led to the 1947 protocols. At the time of conflicts in Southeast Asia and africa among others and following on earlier wars of National Liberation and deconalization. Importantly, wars of National Liberation and deconalization were internal warmizech and the manner of which they were fought brought to the floor the starting lack of law brought to their conduct. It under scored the seeming futility of insisting that, quote, the right of belligerence to injuring the enemy is not limited. In the diplomatic Conference Building on the opprobium, the ruthless andbratant cologniest and latent repression, representatives from National Liberation movements and newly independent states seized on these concepts and to hold imperieralist states accountable. And they did so through invoking an experience or expertise grounded in their recent experiences. And they argued in their recent interpretations of and during their experiences of war. After all as they highlighted, quote, they were the people who really had firsthand knowledge although mostly as victims of the effects of modern and conventional weaponry. They insisted upon broadening the understanding of concepts of superfluous injury and unnecessary suffering to include psychological harm and most significantly harms to ways of means of life. Thus while a majority of delegates led by western states first attempted to limit the scope to empirical quantifiable and individual assessments leading to often slightly absurd exchanges as from when delegates of sweden and the United States exchanged opinion. Third word delegates refused to accept such third world interpretations of injury and demanded a more robust accounting. For they were quote, all too manipulatable. Further as another delegate explained to prohibit or restrict certain categories of weapons would give the impression that they alone were dangerous. Nafgt by the large scale use of permissible weapons or even of Industrial Equipment such a as bulldozers the aggressor could produce effects that were dangerous or cruel if not more so. They demanded that concepts of suffering and injury be expanded and deepened to consider the complexity and nuances encompassing an entirely new way of life. Not surprisingly the emphasis on damage to the environment is fundamentally damaging to means of life was reiterated frequently and the use of herbicides. Introduced throughout this debate was a temporality of suffering and injury as well as the insistent in terms of the environment and that it be evaluated in terms of scope, degree, and duration. Thus the debate of superfluous injury and unnecessary suffering which began totally technical limited and individual terms was expanded and deepened. A turning point in the development of the laws of war and in the codification of the prohibition, it was also a moment of where the victims in their words reclaimed the words of law and to denounce those who fought against them. To retrieve debate unsuccessful though much of it probably was and the politics of that debate across triem and space is to excuerate vaa resource for thinking about restraint, power and authority in contemporary wars. It reminds us something that has no history only something that has no history can be so cleanly and amiably defined. This offers precisely the possibility that the laws of war may be indeed be used in unexpected and unpredictable ways. I suggest this matters especially in terms as we consider those living under the drones who ask us against all insistence that the drones are a legal means of war to recognize and consider the full dimension of injury and suffering incurred. [ applause ] thank you very, very much. Thank you for inviting me to come today. I agree with john that the question on law and how does law constrain war is too constraining. Law does constrain sometime as john said. As he said it often empowers war, often legitimates. And very often war shapes law and probably more often war shapes law than law shapes war. That said, im going to talk about how the laws of war domestic and international have operated since 2001. And im going to suggest that it hasnt had much of an impact, and that has not seemed like much of a constraint when it comes to the initiation of war. But its had much more of a constraint and is taken much more seriously inside the government anyway when it comes to the conduct of war. But that constraining effect might not have the ultimate impact some people think it should. So it depends on the type of the answer to the question is short that it depends as to what type of war are you talking about. So if you look at article ii, the president s use of force since 2001, president s have used military force in the absence of congressional authorization. And the justifications they have given primarily in libya in 2011 and the same justification President Trump gave for the use in syria without authorization, the office of Legal Counsel is the office that writes legal opinions that justifies how the president can use unilateral force under article ii. I can tell you with some confidence that i cant today imagine a circumstance where the president would want to use military force without congressional authorization. I dont think article ii stands as a constraint to any plausible scenario when a president might want to use force. The possible exception is a large scale military intervention with lots of ground troops. And even there the olc opinions are unclear. With that exception, although smaller scale ask more uses of force, in other words the type of ways we engage in war, i dont see that the war after 9 11, that was actually more of a restrainingphorialation than president bush asked for. It seemed to pick out a certain number of groups and organizations. And i do think its constrained in some senses inside the government. But if you look at it from the outside, it looks like its ever expanding. Then it was expanded to the islamic state, which is not a force associated with al qaeda. And 15 years after 9 11 were fighting an entirely Different Military conflict against global terrorists than we were in 9 11. And its the same legal authorization thats been used by the executive branch to ever expand to justify the use of force weve been engaging in many countries around the world. The one Time Congress has ever really stood up to the president in trying to limit his powers. It was never much of a constraint, but i think it received its deathblow under the Obama Administration when they ruled that the multimonth air campaign against libya, which involved thousands of americans, hundreds of people dead, the elimination of cudoffy, that that action would not have contributed to hostilities. Once the executive powers said that as a legal matter now as a executive branch interprets it, its no constraint at all. Moving to the international realm, a law many people has been skeptical has been very constraining in the last seven years, some doctrines developed in the last 10 or 15 years i should say have deepened have really shown theres no constraint at all. Perhaps the most remarkable thing from a lawyers perspective about the reaction to trumps strikes in syria a few months ago, clear violation of the face of the u. N. Charter since it did not have any plausible selfdefense rationale. It didnt have the consent of syria. It wasnt authorized. There was a lot of discussion about whether there was a humanitarian intervention. But that position just kind of evaporated as of a couple of months ago. More over, two doctrines have risen up since 9 11. And theyve always been there, but theyve risen up. It recognizes an exception to the prohibition of the use of force for acts taken in selfdefense. And this that exception has been expanded since the beginning of the charter back its been really expanded since 9 11. First by the Bush Administration, this idea that anticipatory selfdefense, that they went beyond anticipatory selfdefense because in an age of weapons of mass destruction and state actors were hard to find, you need to act yet earlier. And that was widely criticized under the Bush Administration. But unbeknownst to most, its basically been adopted by the Obama Administration and the trump administration. It wasnt in the context of the iraq war, but its exactly the same legal doctrine of very tenuous anticipatory selfdefense. Its indeed been adopted by Many American allies. So if just look at those laws over the last 15 years, you would say theres not much constraint going on. If you look at laws that govern the conduct of war, that you do see a lot more constraint. The use in bellow rules, we could argue how much of a bite of proportionality rules have, but they are taken extremely seriously inside the pentagon. And they often result in things that commanders want to do not happening. And weve got lots of examples that things werent even asked because they realized they couldnt even pass the legal muster. Lots of other constraints constrain agencies like the Central Intelligence agency. One of the things thats hard to appreciate is how highly legalized not just how the Defense Department is but our Intelligence Services as well. Although there are many instances of legal noncompliance, i think the general story is law has been vindicated. The courts on detention rule, the courts would not accept the executive position, same thing on military positions. And lots of areas over the conduct of war, law has become much more legalized. Courts intervene more. And its a puzzle why. I dont have time to talk about it now why law seems to constrain or seems to have such a consequential role. But i just want to close by suggesting as i wrote in my book in power and constraint, and there are many more that i mention, the many constraints of the conduct of war have had the effect of pushing back against things that the executive branch might have otherwise wanted to do. Some of the push back has been large, some of it has been marginal. Its gotten the other two branches of government involved. Congress is much more involved. Courts played to what i think was an unprecedented role through habe s corpus. And the executive branch paid attention to that. But the sum total of all that, and that wasnt just the Bush Administration but the Obama Administration too, with regard to targeted killing including american citizens, the sum total of legalization, the publicity and legal terms about whats going on, has been restraint, real restraint as executive pull back but also legitimation. The big legal push against military detention indefinite military detention without trial, basically some people fight about it because its basically over with. Because now courts have gotten involved, narrowed up the margins and blessed it. So ironically the constraint has also empowered and i think lumated what has turned out to be an endless war. My colleague talks about this as the sanitization or clean war. And he suggestion that the focus on civil liberties, the focus on use in bellow has taken away to the Bigger Picture of the legitimacy of war itself. I dont draw that conclusion, but i do think its fair to say the elaborate legalization of the conduct of war combined with the move to make war more secretive, has in effect taken war off the table as far as the American Public is concerned. And ill leave it to you or to the panel to figure out whether thats a good or bad idea. [ applause ] thanks, mary, for inviting me to participate in this. And i hate to say it because its more fun to have a panel where everyone disagrees with each other, but i dont think youre going to see a huge amount of disagreement between any of us on these issues. I will say my immediate ininstinct was to respond like a lawyer or perhaps like one of bill clintons lawyers to say well, it depends on what you mean by law and what you by contrain and what you mean by war. Insofar as that question as a coded way of saying does law reduce the number of wars . Does war reduce conflict . Does International War or International Humanitarian law reduce conflict . I think the answer to that one as my colleagues have suggested is pretty clearly no. It may care about reducing unnecessary suffering, but that leaves us a whole lot of room for punitively necessary suffering, right . The law is operates agnostic about having wars and having a lot of misery during wars. Despite our mythology, it does nothing of the kind and in fact tends to legitimize and sometimes enable a more frequent and more miserable war. You cant be killed by a chemical weapon, hooray, lucky us, you might be killed by a bomb dropping on your house. What it certainly does is helps its one of the tools we use to assign meaning and categories to different forms of warfare, different forms of suffering. You know when we pronounce them to be necessary or unnecessary, discriminate, or indiscriminate and so forth. So certainly it is a vehicle we use to structure war. But let me switch to a different question. If we think about the question, does law constrain war in a slightly different way, i always think one of the problems you have if youre an International Law professor as i am, youre constantly encountering the question is International Law really law . And i think my over all response to the question does law constrain war, its kind of the wrong question. The more interesting question to ask is under what circumstances, for what actors will the law influence their behavior . And if youre an advocate, you care about that enormously, right . And clearly there are some circumstances in which some laws influence some actors and acts. And enormously there are other circumstances in which theyre pretty much irrelevant. Law is not separable from power, separable from culture. It just is a part and embued in those things. And exists insofar as its institutionalized, triggers peoples support. A learned hand had a famous line, liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it. No constitution, no law, no court can do much to help it. This is certainly not only true for the law of war but also domestic law. Law matters when we decide it matters. Law matters when we decide it matters enough when we create institutions that turn abstrak laws into habits of bureaucracies and into incentives for bureaucratic beings. I think this is something jack was talking about in which law although it has not had a huge constraining effect often has an enormous constraining effect on how law is carried out. Part of the reason that has been so because in part of the military for instance particularly with the vietnam war, one of the responses of the u. S. Military as an institution was to essentially push lawyers further and further down operationally. So instead of just having a few lawyers at Headquarters Level increasingly in todays conflict, you have lawyers operating at the battalion level and sometimes even at the company level. So decisions being made by smaller and smaller groups of people are subject to lawyers saying yeah, you can do that but youve got to do that in this way or you dont do it that way. When you do that and you creacreate a bureaucracy that defines itself by its role to ensure compliance with the law and you put those people with other people and say hey, that guys job to tell you what you can and cant do, you create a huge group of people invested in saying what matters. And it gets embedded in the rules of engagement. Again, does that operate to reduce suffering . Not necessarily. Whole different thing. But certainly it operates to structure and find and constrain all kinds of complicated ways the actions our troops take on the battlefield. Who can be targeted, who cannot be targeted. Its actually been quite interesting. I mean this is not a law on war questions per se. But even looking at the differences between president obama under whom i served and President Trump, right . So for president obama law mattered. I believe that he believed law mattered. When he believed and he announced that law mattered to him, and he was also a person who believed that an elite opinion mattered and it mattered what the courts thought, when you say that, it becomes a lever people can use to influence your behavior. And lots of people did from activists to republicans in congress. Youve announced this is going to be a yardstick or one of my yardsticks, and then people can use that against you. It doesnt matter in the same way all the time. Sometimes other things will matter even more. But it certainly becomes a pretty powerful constraint and a pretty powerful lever of influence. And if youre donald trump and you say law doesnt matter to me, then law doesnt matter anymore. If youre willing to say i dont care what the federal judiciary was, and youre willing to carry on, law is not going to constrain your behavior. One of the fascinating things to watch, and obviously weve got 3 1 2 more years to find out how this massive experiment is going to turn out, is we have a president who doesnt think the law matters terribly. But we continue to have and we mock this as the deep state, right . We continue to have a federal bureaucracy that does think law matters. And on most issues, the president has more power when it comes to decisions about using power in the first place than almost any area. But where most laws matter, even the president cant act without the coperation of this vast bureaucracy that we in the United States of america have created. And we have premised this bureaucracy on the point that law matters, the courts matter. And when youre president and you say okay, everybody do this and hafr of your employees say we cant do this, mr. President , then law starts to matter. Law sometimes matter sometimes when our friends think itimaters, even when we dont think it matters. And this goes back to the realm of Armed Conflict. One of the things during the Bush Administration, for instance, that had an impact was the responses of our european allies to some of our detention practices. Wont go into specific details but some of our practices with detainees captured in afghanistan went on despite challenges and criticism from rights activists and journalists. To the point where our european allies said we cant turn over detainees to you, and were fearful we risk prosecution because we have to comply with a different set of human rights standards that we do. So unless you change your practices, we cant cooperate with you. Well, the u. S. Altered its practices to bring them more in compliance with those of our allies. So its a long way of saying law matters when we decide it matters. Law matters when we decide were willing to go to the mat for it. There are certainly ways to make it matter less. And one of the things ive written about quite a lot have which the category of Armed Conflict depends on wars, combatants have gotten more and more blurry. Its harder to use law as a constraining tool when there is sufficient ambiguity and vagueness in the categories themselves. So if you asked me, you know, perhaps, im not a historian. Im a lawyer and a policy person and an advocate, but if you asked me that not so much answer the question does law constrain more but rather to say help me understand how i can make this actor be constrained in the following ways by the following laws, thats actually something we know a fair amount. We know a fair amount about the circumstances in which law will matter and the circumstances in which it wont, and that, to me is probably ultimately the more interesting question. [ applause ] thank you so much. I have a number of questions i want to ask. But let me, as you were all talking, jack, i actually started thinking about your terror presidency book. And, you know, maybe one of the trajectories over time is the sort of lawyerization of american politics and government. And one of the points that you make in the terror presidency is that law ended up becoming a, its sort of like johns point about laws as a resource. You know, what it does, but that in a context where post9 11, people were worried about, not only is there going to be another attack, but are we going to be blamed for it, because it will be on our watch, that it was difficult to push back from extreme policies. But one reason that would work is that, is an argument that the action was unlawful, especially that violated the criminal law. So there, if im remembering it correctly, jack argued that there was this pressure to go to the edges of the law. Now that does two things. One is, law is sort of setting the boundaries of the decision. But then if you can call something law, you know, on this particular, sort of access of whats in and whats outside the bounds, law becomes the mechanism and the head of the 9 11 Commission Also suggested that lawyers had become too central. That law as an outer boundary was becoming too important, and it was leaving out, as i think you argue, other factors in decision making, like, is this a smart policy . How does it affect our Foreign Relations . How is it going to affect us domestically, politically, so law essentially becomes a decisionmaking mechanism in a way that, you know, at least the way that both jack, your memoir and others have talked about it, it seems that that becomes a part of the story of the role of law in war, that, you know, so i wanted to know if you would reflect on that, and then just thinking backwards in time whether helen and john have thoughts about that, that dynamic at earlier moments in time. You want me to go first in. Yeah. So i think that captures what i said. Just to repeat it quickly, so theres no doubt that lawyers play a hugely consequential role in policy decisions to different degrees in different administrations. The period of time i was capturing in particular in the phenomenon you described was post extreme in the first term of the Bush Administration, where they were scared to death after 9 11. They didnt know, didnt have very good intelligence. They werent sure where the right policies were. So they basically wanted to do everything they could within the law. And so the lawyers ended up setting the policy, because the lawyers would tell them how much they could do, and the normal thing to do in government is to have a debate. Then what is lawful about what one should do, as you say, and a lot of the time, in the early Bush Administration, the raulaws just decided where the line was, and as general hayden said, i want my sights on the chalk line. I want to be as close to the line of legality as i can be. I dont think thats true of the second Bush Administration. It wasnt true of the Obama Administration, which famously put up policy overlay over legal authorities to narrow what could be done. So it could, it can work in a lot of different ways. I think that, as you say also, it can shut something down. If a lawyer says no, especially if criminal laws involved thats the end of it. Sometimes commanders who dont want to do something will nudge their lawyers and tell me please dont let me do this, tell me its illegal and then i have a good reason not to do it. So lawyers are playing multitudenous roles. Great question, mary. One misconception, i think that has spread in the years since 9 11 is that the law matters now but didnt matter then, with then being taken as somewhere in the past. I think the increased number of lawyers involved in decisionmaking processes today that jack has so powerfully described has helped produce that misconception. I think we should distinguish between two different effects. Lets call one institutional effects, the second discursive effects. Im making up these categories as i go. Think about the emancipation proclamation. What is the ground for emancipation . Its that emancipation is necessary as a war measure. Now that necessity idea is a law of war term. So we have a law of war framework setting up the justification. And then emancipation sets off humanitarian law crisis. Worry about what the humanitarian effects of emancipation be. So we can think of the law structuring, Something Like emancipation long before, essentially, this is the point. There are essentially no lawyers in the executive branch in 1862 1863. They have to reach out to a columbia professor to find somebody to write up the code of war for them. There isnt an institutional, there are no boots on the ground no the rlaw domain, and now thee are. That may explain why it looks different now. There are people there standing behind targeting officers who can offer advice or sometimes order things to stop. And that, thats a new effect, but it doesnt mean that the law matters now and didnt once before. Thats an important distinction. I just want to say i completely agree with that. I do think, when you read the Supreme Court desiscisions in 1 century and wartime. You raid the executive decisions and theyre highly legalized about law. And reforming policy. My claim is not this is something new. I think through bureaucratization and the extent of the effect is new. But i certainly agree with what youre saying. The only thing i would add is that one of the fields that ive worked in over the years is the supposed field of rule of law promotion. Which is a, is actually a multibillion dollar industry in which governments pay people like me to run around the world saying to other countries, ahha, heres how you get the rule of law, which in our simplistic framework usually means we say i have this fantastic commercial code, ive got a bunch of u. S. Experts to write. Your legislature should just adopt it and then youll have the rule of law and heres a criminal code for you, too. Needless to say, that has not proven particularly effective for all kinds of reasons. One has been the glaring cultural inappropriateness. But the other is that in the United States, to the extent that law domestically is, is a constraint, and i think most of us think its a pretty powerful constraint, all be it imperfect. John is absolutely right to say that 100 compliance cannot be the test. We still have murders. We still have theft the. We still have all kinds of law breakings, but we think of ourselves as a rule of law nation. The reason we have that is not because we have terrific legislation. We often dont. It turns out that our legislation that we offer other people is a good deal better than the ones we can adopt for ourselves. But it is because it is so deeply embedded in so many different institutions in so many ways in so many levels its because we teach kids that it matters from the time theyre little. We have all these lawyers that we pay money too and they have the incentive to say oh, the law matters, dont you see. Its pause its because we have police, courts. When they dont penetrate as many levels of society as deeply, then the law just becomes one tiny little form listic piece. And under some circumstances it can be powerful and create a constraint. It creates a language. Certainly International Law as well. It creates a language thats used and have to use. Nobody, not even north korea, nobody says the law doesnt matter. Everybody says oh, but you see i am complying with the law, just in a way you didnt understand and youre in noncompliance with the law. Whether it is embedded at the institutional level has a degree upon which it constrains actors at different levels. So i just did a little history on that. One of the interesting things about the rise of lawyers postvietnam. Theyre drawing on history of the laws of the gentle civilizers or a group of elite european early publicists. Very much interested in questions of what is right and what is good and how to properly govern a country so while they werent lawyers, there was a merging of the morality and the strategic expression of morals and in part is a reference to this early grounding in the work. The interesting thing, too, about the rise of lawyers, we tag it to vietnam when we tag it to the unit. In the 1977 protocols, one of the frustrations is that they were not trained in the laws of war. They had little to no expertise and that hampered them dramatically when they were attempting to participate in the development. They had figured out how to use the u. N. General assembly on their own behalf, but when they switched to a different forum, the laws of war forum they were sorely outmaneuvered. In fact, George Aldridge said his frustration with third world delegates has everything to do with their misunderstanding of the law. They cant figure out the difference between unavoidable suffering and unnecessary suffering and going through looking at how laws are made now, one of the interesting things and Michael Schmitt talks about this. While there is a plur verse, not through treaty making or state opinion of jurists but the interpretation is that say thtan an official role have stepped back. You have very few state discussions of what it is. So the question of how central lawyers are and what they can or cannot do seems to have changed over time, and i think its important to Pay Attention to how the discourse and the institutionalization may or may not be influenced by that. So thank you so much. As, rosa, as you were talking about pushing lawyers further down the operational to the operational level, it just reminded me of, you know, you know, a couple of things. One is, you know, the whole question of law fare in the way charlie dun happlap talks about. The weapon of war, part of the technology of war as you go further down the operational, to the operational level, you know, the someone making a decision about whether to use force in a particular context, basically has to call up the lawyer, find out if its okay and so then the decision about yes or no is taken on the basis of the lawyers recommendation. I mean, thats sort of one of the descriptions of how this happens. So law as a weapon of war. And, you know, david kennedy, in of law and more really has a poignant reflection on this idea, where he basically suggests that both, essentially soldiers and humanitarian advocates have basically been sort of caught up in essentially bureaucratic language, that then has distanced them from the feeling of the decision to choose to kill or to choose to allow to live. And he basically says we need to sort of get out of this language that is a language of law as a way of getting back to, you know, not just the moral questions about killing or not killing, but also the sort of human relationship to those acts and those human beings. So i wonder what, you know, you all think about this sort of codification of war in a way that, you know, from kennedys take is really undermining our ability to have this Human Connection with the lives that we are taking when we go to war. Id say yes, and id say thats the point, right . Thats why we like law. Because it enables us to legitimatize things that otherwise might be psychologically troubling or delegitimize things that other people might think are fine. Id say yes, and that is its purpose. Theres, and similarly, on the lawfare, what else is new. So of course it is, of course it is. How could it ever not be. Everything is a weapon of war. Of jack, you probably like me spent a fair amount of time in discussions with military people in things like hybrid war fare and there, too. Insofar as forces in conflict with one another will use whatever tools they can. And when law becomes more widespread, when lawyers play a greater role, yes, that will become one of the things. Does it matter and how does it matter and can we and should we push back against it . Depends, depends on what you think. Heres an example. Take Something Like u. S. Drone strikes. And the choice of legal paradigms. And one of the things that ive spent a lot of time thinking about and writing about are the ways in which, categories of war, not war, combatant, civilian have gotten squishy, but if you brielieve as three successive oust president ial administrations have argued that a u. S. Drone strike in yemen or somalia or what have you, far from us, called hot battlefield, if you believe that yes, there is an Armed Conflict between the u. S. And either the place are the person were targeting and you brielieve that that person a participating directly in hostilities, if you believe those things then a u. S. Drone strike targeting a person in yem yemen or wherever is legally identical to the american soldier on the beaches of normandy. Theres no interesting difference between them from a legal perspective. Therefore, we get to say, there is no interesting difference between them from a moral perspective. If you challenge any of those categorizations, if you say wait a minute, im not sure theres an Armed Conflict between that institution or with that organization and that persons not part of it, if you challenge any of those categorizations, then the United States is going around the world murdering people, judicial executions. I could argue either side of that. Thats what they train us to do in law school. And i dont think that there is a legally correct or incorrect answer. You know, the law doesnt give us the tools to answer that question. And ive sat, as i know some of you have in many, many rooms with really, really smart lawyers whove gone in circles for a really long time saying is it a war, yes it is, no its not, yes, it is, no, its not. No matter how long you argue it, the law wont magically give you the answer, but if we persuade ourselves that the law gives a clear answer, then we can say ahha, i knew it, thats murder. Or ahha, i knew it, thats fine. And we can talk about the issues that may be the more important issues, such as, does it work, do we think its a good idea to have a world in which states can, without sharing the evidence and to jacks point about secrecy, go around the world and kill people even if we think its justified. There are all sorts of questions, the legal question is the least interesting question of all, but the legal question helps us avoid having to think about the other questions, and thats why we love it. The only thing i would add when you talk about extra judicial killings, talk about how law and war. It has been growing and the intersections are getting tighter and tighter. So the question of which law matters at which particular point in time in which Law Framework that you want to use also will depend on your interpretation, so they may be targetable under some interpretations of International Law, though t so i think that in terms of thinking about law constraining war, its not just the laws of war were considering but the intersection of multiple kinds of law. Could i intervene a little bit and throw it back to you all . As you were answering, let me tell you one way to hear what you said. When you said of course that you know, kennedys, were not in touch with that sort of Emotional Experience in some ways. So, and when you said of course, thats what law is supposed to do. The way that i heard that is that law is basically the mechanism now that if we think about, say, the war in the pacific in world war ii and, you know, this group knows work like john dowers work, war without mercy and the incredible racism on both sides. And one of the ways of getting soldiers to be interested in killing other human beings is the kind of dehumanization and the ramping up an ideology that makes the killing right. And a good thing to do. Now theres also all sorts of literature that says when soldiers are killing theyre trying to survive. But to the extent that effort to get soldiers prepared for conflict are, for example in world war ii, was to essentially dehumanize the enemy or sort of ramp up the ideas about the goodness of killing. So that was, that was sort of the training for it. And, and so it functioned to enable them to kill. And now we just have a different mechanism. And its, we rlaw it up. And then that provides a justification, and thats what makes it easy now in a way that ideology did in an earlier context. May i just say i think thats exquisitely said. I talk to commanders who dont use the language you use, but when youre training 19, 20 and it 21 year olds to kill. Psychologically, they want them to understand that what theyre engaged in is an honorable activity, that its just, that its disciplined. That there are rules when things go wrong, define it and justify it. And i do think that that is explicitly part of the role that law plays. The dower example is useful, mary, because it suggests that the regime in which laws being driven down the operational chain, even to 18 and 19yearolds is not replacing the chain in which we ask 18 and 19yearolds to make decisions to fire ordinance. The basic model is we will set aside whos in the right, whos in the wrong. Were going to really not ask about that. Because if we do, its a race to the bottom. Because everybody thinks theyre in the right. And the only thing were going to ask about is unnecessary suffering, which is why helens work is so important. Unnecessary suffering becomes the thing, the currency of the inquiry, which is the displacement of the questions of right or wrong. I think some of the confusion in this area. Some of the ways in which the laws categorized is that the law has selfconsciously set aside the questions that most people will want to ask first and done so, as done so on purpose. Theres a fantastic article from 25 years ago now, by paul conn, a colleague of johns at Yale Law School called lessons of International Law from the gulf war. Theres a line in it where he says that the amount of suffering that is permissible under International Humanitarian law is staggering, and he essentially is making precisely that point. That we kid ourselves when we think that its about reducing suffering as opposed to unnecessary suffering which the law will hopefully define for us so that we can feel okay about the kacarnage we leave in our wake. When we think about the suffering, right, you have to think about that it was oriented and directed towards primarily the protection of those who were no longer fighting so the organization of the laws of war was focussed on prisoners of war and those who could not be more actively engaged in combat. But it wasnt until 1977 that we have comprehensive protections. Until then its Just Protection from hostilities. Its important to think about the laws of war expanding. But not about the humanitarian impulses. We misunderstand it in large part if we think its about the protection of civilians. Thats a recent development. Why dont we open it up to your questions. We have two microphones. And please identify yourselves for the viewers at home. Go ahead. Hi, im liz of from university in st. Louis. Fantastic panel. And i have a question about, im interested in how paradigms are shaped by capabilities. And so on the technological side and i mean, the 1899 Hague Convention talks about how you cant throw projectiles down from balloons, hot air balloons, because you might hit civilians, and that would be terrible. They dont use the testimony crime against humanity, but they almost do. And yet 44 years later we have atomic weapons being used on predominantly civilian populations in japan. And if you raead oppenheimers materials, he says its like a marble rolling down a chute. I love john wittes image, to make this possible. So whether its, you know, ironclads or i dont know if kate upstein is here, but her brilliant book on the torpedo or drones, id love to hear just examples that occur to you about paradigms being reshaped by these capabilities and just one little pedantic footnote, because theres always pedantic footnotes, i think the language about unnecessary suffering is from the 1868 st. Petersburg declaration. There was a whole book about. I think it is an amazing achievement. And he says oh, nobody cares about that. Anyway, thanks. Id be interested to hear your thoughts. At risk of leaving my 19th century jurisdiction, the drone is a huge threat to, and the future of the drone in particular is a huge threat to the paradigm thats organized around unnecessary suffering. Subrosa, the unnecessary t suffering, its hard to use armed force and not hurt other people. In the world of cnn, its going to add a little cost. But in the world of drones that are incredibly accurate, and were already in a world of drones that are incredibly accurate. Jack knows more about this than i do. Theyre going to get more accurate every day. And youre not going to have, youre going to have mistaken identities but not cases where people who were killed who werent the intended target of the attack. It will stop serving one of the functions its been serving for some time. Its an irony contrary to the meet ye media coverage. The problem is not that they killed so many civilians, its that they killed so few. It reduces the perceived cost of it. It will be interesting to see how sicyber plays out as that becomes more and more a part of our landscape insofar as its contra drones. Cyber remains a pretty blunt weapon. One of the criteria in Armed Conflict is you have to distinguish between civilian infrastructure and military infrastructure and so on and so forth. That distinction is absolutely vital. In cyber, in every domain its gotten harder to distinguish in those categories, and cyber particularly, distinguishing in cyb cyberspace what counts as a civilian is almost impossible. And any kind of offensive cyber will have spillover in which the user simply cannot draw those distinctions. So that almost, i dont know how those things will kind of unfold in the coming years, but i think each in quite different and opposite ways challenges our ability to use those paradigms anymore. Is it, just as a side, yes, youre correct. I was using 1868 to 1899 to 1907. That was just using a quote. Is it precision or accuracy. One of the things about it was the lack of transparency as well as the various statements, we dont know who we killed but were convinced it was the correct person and we killed people various times over. Should we keep open the idea that the drones are precise or that they are accurate. At least in terms of what information we have. Sometimes we dont know the identity. Right. We know we killed somebody, but we have less of an idea at that that was the right person and that was the person we were intending to kill. I think precision versus accuracy is useful to think about. So orren gross, who is a lawyer says we have a duty to use drones because theyre so precise, whereas ryan gutman would say, no, we dont have a duty to use drones. Were causing more unnecessary suffer and what weve done is invented a more lethal way. The illusion of accuracy. Okay. And if i can just add in, the media cant cover it. Theyre not embedded in the drones, and they cant get to the site to report on it, so thats one of the crucial difficulties that comes out of this type of warfare. Hello, my name is aaron oconnell, a military historian at the university of texas, austin. One, was the propaganda produce the by khan and Anwar Al Awlaki protected under the first amendment, and what is the best case for producing propaganda that does not in itself pose a direct and immediate throat american citizens . Going to give this one to jack. [ laughter ] i dont know the answers to those questions, and im not familiar enough with the facts to be able to assess. I mean, the premise of war, for killing Anwar Al Awlaki was not that he was a prop begagandaist. T he was directing attacks on the United States. I dont know what other activities he was engaged in, but that was the factual premise. I think its a factual premise that is proven to be killed based on things that have come on you since out since he was killed. My name is Michael Donohue from marquette university. In early august 1990, i was watching cspan, they were covering an International Conference in aspen, colorado and president George Herbert walker bush came to the microphone and condemned the iraqi invasion of kuwait, and he called it, correctly, a violation of International Law. And then he further condemned it in moral and ethical terms, very movingly, really, but no great power has the right to invade a smaller power in order to seize the resources of that smaller power. The only problem i had, i dont think no commentator said anything about it, but the only problem i had was that seven and a half months earlier, the same Herbert Walker bush had ordered the invasion of panama in which the United States had invaded a small neighbor to secure the main resource of panama, which was a canal. Im just wondering, can you see in any way in the foreseeable future any way that international organizations, the united nations, any, the world court, can put any kind of constraints on great powers and regional powers, either affirming or violating International Law when it comes to starting wars, you know, in the future. I mean, it seems as if theres one set of rules of law for smaller nations that cant impose their will or attack their neighbors, and theres another set of rules or theres a clear violation, constant record of routine violations of great powers going to war when they see fit. Thank you. The the the the you may see this as a way where noncompliance creates disillusion. International law is structuring the politics of those episodes. It doesnt mean the International Law is going to be followed. It means defenses of those things are going to happen in the language of the law. Which is going to be structuring the episode. That will be disappointing those who want compliance or non. Its an alternative to the absence of significance. And thats useful, i hope. Ill just say that i actually am skeptical that International Law can constrain great powers when they have powerful interests that they want to see carried out in terms of using force against forenation, but another nation, but the incidents of territorial land grabs has dropped. And theres a book coming out in september that argues that law was hugely consequential in that. So ill just leave it at that. Okay. You know, weve got about eight minutes and three questions. So if its okay, what id like to do is to make sure everyone gets their question in, why dont you all speak, please, identify yourself, and then well have the panel just respond to all the questions together. Robert shaver, shippensburg, university pennsylvania. One topic that hasnt come up yet is war crimes tribunals which have, at least originally why seen were seen as ways to prevent aggressive war and violations of war. Do you see any useful purpose for those kinds of tribunals, whether from nuremberg to the hague today . From the university of science in berlin. And i want to bring that to a different context, 17th century spain. One of the chapters is called on arms and letters. Thats the title of my paper here which will be oth o the sea. I case in which i think territory so the main argument that ser van tess is using there is that letters, so law are the main legitimatization for war in his opinion is that without it there is no law. The law of the state needs to be defended by war, and this is 17th century. I suppose that argument has been made many, many times and is slightly different to what you have been saying, so could you please comment on that. Department of government, university of texas. I really liked your descriptions and analysis whats going on, especially the framing and how the laws gone down the bureaucratic levels. My question is this, as i think of the law and a large part of it and the rule of law is about accountability. And when youve been talking about law, theres some administrative law, statutory law. The bowlen amendment and how that was done. And the constitutional law and International Law. The geneva conventions, the nuremberg rules and so forth. What im wondering, where has been, and the rule of law, of course, gets back to the government of the governed and of a governable society and a rule of law rather than discretionary power. My question is, where have you seen examples of accountability at administrative levels or constitutional levels or international and it seems that theres not a whole lot of that. It seems thats a big part of the law. Not only would i disagree a little bit with simply that there is really a normative underpinning to it and if not, its the law as simply empowering and we have to disregard the normative effects. The accountability mechanism. If you talk about a little bit there the history. And lasalso, if you have anything to say to wrap up, this is the time to do it. Ill wrap up by telling two stories which may get at those questions. One is the story about lawfare, and that goes to helens earlier comments about the frustration of first world political leaders and third world actors didnt have sophistication about law. Back in the, in the late 1990s, during the sessions at the United States to negotiate the statutes that would create the i International Criminal court. After many years in which the third world delegates, not the term we currently use, but lesspowerful states, were systematically getting rolled by the more powerful states, a couple of ngos came up with an absolutely brilliant idea, which is they went out to places such as Yale Law School, and they found bright, young law students and paired them with states. State delegations, and as their International Law experts and sent them all back to the u. N. Conference on the icc, and i remember the look of astonishment. I was on the u. S. O department of states delegation, the u. S. Governments delegation. I remember the look of utter astonishment on the faces of my colleagues when the representatives from trinidad and toe babago would stand up a the person saying this would be a blond 26yearold law student. It was incredibly powerful. It suddenly meant that far from the ability of the powerful states which had lead, the u. S. Delegation, we had 20 International Lawyers on it. But if youre from the sol man islands, it meant that the u. S. Wasnt part of the icc but nonetheless, its a twoedged sword, but it proved to be very powerful in unintended ways. The other story about accountability and the limits of law. One of the major frustrations of many in the Human Rights Community as well as outside the Human Rights Community is theres no accountability for the use of water boarding under the Bush Administration. They cant go to europe and nobodys going to get prosecuted outside of the u. S. Or inside of the u. S. I live in alexandria, virginia the parents were very liberal and would talk at the dinner table in front of their children about what a terrible man David Addington was and he should be in jail, because hed broken International Law. And so one day their children who at the time were 4 and 7 or something, hopped across the fence and tacked giant posters up to the trees in David Addingtons back yard with things that said you are a jerk. Y you are a law criminal and a jerk. And the parents had to knock on the door and say im sorry. But people tended not to trickortreat at David Addingtons house either. What is the moral of this story . Im not sure. But one of the morals is that accountability takes many forms, and it is certainly structured and shaped by the law, but thats a, should we feel good about that story or bad . Depends on your point of view. Will he go to jail . No. But was law irrelevant . I dont think so. Let me just add on that very example. Im not sure this was implicit to your question, but i want to build on what you said, because so many discussions about accountability assume that if someone doesnt go to jail, if someone doesnt end up in jail theres no accountability. I think that is a large mistake. Accountability in general is when a government, in a government context, is when an actors behavior is known to another entity with authority to examine and judge that behavior and punish that person if they think or sanction or something, if they think that person has acted wrongly or inappropriately or unjustifiably. And i think to take the worse example, the interrogation mess, theres been enormous accountability for a lot of people, not just David Addington but many people. I hate to add, jacks played an Important Role david was my colleague. We worked together a lot. But theres been many forms of accountability in terms of various types of punishments, not criminal punishments that have been brought to bear. And theres the important thing. Accountability is not, in my judgment, just for its own sake. And i think its remarkable thing that despite the trump rhetoric, that it was never possible that we were going to return, once he became president , as he pledged, to the badolddays in the early 2000s, the reason is from the Central Intelligence agencys perspective, the punishments are so severe and have been going on for so long and so many individuals lives have been disrupted. If you speak to anyone, they are not going to go close that ever again, and no matter what trump says, and you saw this when the republicans in Congress Said no way. I think theres been actually quite significant accountability for the early interrogation program. It didnt take, and by the way, ill say one more thing. If some of those folks had been brought to criminal trial, i think its almost certainly the case that they would have been acquitted. And what kind of message would that have sent in terms of the norms that have been developed since then. I think weve had extraordinary accountability. I think its had a useful impact. So to just follow up on that. I think i agree with everything thats been said. Its an empirical question. A lot of research has been done in looking at trials in terms of the compliance with enforcement and strength of human rights law. We dont have something similar in terms of International Humanitarian law. So in many ways the questions we have around compliance, we choose to ask them, were still searching for the Empirical Research that would help us answer those questions. I have been advocating for Empirical Research. Its crazy, but i think theres a lot of room for that. But thats what the icrc is trying to do. These are the kinds of questions that should remain open and we need more Empirical Research to be able to decide. At the end of michael waltzers story, arthur harris, he achieves aerial bombardment in world war ii for the United Kingdom. Theres a certain form of accountability which looks a lot like what my copanelists have been talking about. Its not that he was prosecuted or put in jail. He doesnt get a peerage on the same terms as hayis friends. In the last 15 years, weve seen shamings, on american terms. Attorney general gonzalez didnt get the job he wanted. But weve had shamings of important figures in our last decade and a half. And we should expect to see accountability i think in these diffuse ways. Which at times is unsatisfying, but happens nonetheless. I want to jump in, but were out of time. So i would just like to thank you so much for coming here and participating in the conversation today. And now its schafers 50th birthday, and you all are invited to the party. Come to the reception. Theres cake. But first please help me thank this panel. [ applause ] cspans washington journal, live every day with news and policy issues that impact you. Coming up tuesday morning. Sasha booker, staff attorney for lambda legal and a transgender marine veteran discusses the proposed military transgender ban. And joshua green will talk about his book on steve bannon and his relationship with President Trump. And George Washington University Law professor, jonathan turrele. Be sure to watch washington journal, live at7 00 a. M. On tuesday morning. Join the discussion. We have been on the road, meeting winners of this years student cam documentary competition. At East Lyme High School in east lyme connecticut, they were handed 1500 for their documentary on environmental justice. And at east lyme middle school, hon rab hon rablg mention winners received 250 for their documentary on health care. And in concord, massachusetts a second prize award at nashoba school. They won 1500 for their documentary on the wage gap. Students from northampton high won a hon rablg mention prize of 250 for their documentary series on sanctuary cities. And in paul r. Baird middle School Received an Honorable Mention prize of 250 for their documentary on the opioid epidemic. Thank you to all the students who took part in our studentcam video competition. To watch any of the videos, go to studentcam. Org. Were asking students to choose any provision of u. S. Constitution and create a video illustrating why the provision is important. Next, historians discuss how emotion has a role in foreign policy, while looking at the career of cold war diplomat george f. Keenan. He was a strong advocate for using a containment policy to check the soviet union and prevent the spread of communism. This from the society for historians of foreign relation. Its an hour and 50 minutes. Were here today to examine two very provocative and extremely influential articles that were written by frank castigliola. The first appeared in the 1997 issue of the journal of american history