No Asking and No Telling – A Quick Thought on Stephen Preston’s Speech at ASIL

As Marty Lederman and Jennifer Daskel have already noted, the Department of Defense’s General Counsel Stephen Preston gave an extensive and lengthy keynote speech on Friday last at the American Society of International Law Annual Meeting, titled “The Legal Framework for the United States’ Use of Military Force Since 9/11.” Jennifer thoughtfully articulated two questions she would have offered to Mr. Preston, had the opportunity been given to any member of the very large audience present to ask. That lack of opportunity is my concern here.

I am struck by the singular absence of any opportunity to comment. There is obvious irony in a speech given to justify the use of military force to a diverse international law audience purporting to openness and transparency but failing to offer even the most limited opportunity for response. Substance aside (on which there is much to say) this ‘show up and then walk out’ approach is markedly different from the approach of previous administration invited keynotes (most notably Harold Koh and Michael Posner) who gave strong and provocative keynote addresses, and stayed to answer the thoughtful (and occasionally challenging) questions posed by members of the leading Society of International law scholars and practitioners in the United States. I make no pretence at naivety as to the trade off in inviting such high-profile individuals to the Annual Meeting of the Society and the value of the publicity that may follow. However, I think the deal is a bad one, both for the actual lack of openness illuminated by an unwillingness to answer hard questions, and the limitations exposed in advancing a genuine, thoughtful and challenging legal conversation about the legal justification and legitimacy for the deployment of force by the United States government in other parts of the world. 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism; This article is written in the author's personal and academic capacity; Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).