The film "Eye in the Sky"

The film "Eye in the Sky",^[1] which was released a few years ago, depicted a drone strike made to prevent a terrorist suicide bombing. The main theme of the film is how complex elements such as interpretation of rules of engagement, political responsibility of ministers, and international relations are intertwined in the execution of operations involving the joint command, drone pilots, and local agents. The film depicted a joint operation between Kenya, the United Kingdom and the United States, with the drones being operated remotely from a military base in Nevada, United States.

The film does not delve into the history of the joint operation. However, U.S. counterterrorism operations in Kenya have their roots in the Global War on Terrorism that began in 2001. The AUMF resolution passed by the U.S. Congress after the September 11 terrorist attacks in 2001 authorized the use of force. Specifically, the resolution authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines as planning, authorizing, committing, or aiding the terrorist attacks that occurred on September 11, 2001, or as harboring such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." The resolution authorizes the use of force not only against countries but also against organizations and persons responsible for the terrorist attacks. Criticism has long been raised that the actual use of force based on the resolution goes beyond the text of the resolution and the force is used against parties other than those responsible for the September 11 terrorist attacks. The limitation (in the first part of the resolution) placed on authorizing the use of force only against parties deemed responsible for the terrorist attacks is based on desirable results expected in the future (in the second part). This created the risk that this limitation would be disregarded by putting more priority on achieving the objective. Criticism of the use of force is directed at implementation of the resolution in this manner.^[2]

Thus, the use of force in the Global War on Terrorism has not been limited to specific countries, but has also extended to organizations and persons. Furthermore, for the purpose of preventing future terrorist attacks, the use of force has been extended to organizations and persons who probably pose a risk of future terrorist attacks, even if those parties were not responsible for the September 11 terrorist attacks. Indeed in Kenya, where the film is set, there have been reports of military training, support, and military exercises, although there have been no reports of attacks by aircraft or drones.^[3]

Our world

While there are many different styles of jurisprudence, Robert Cover was a legal scholar who has presented a leading perspective on one such style. According to Cover, law is our world, just as the physical world of mass, energy, and momentum is our world. Law is not only a system of rules that we are required to obey, but also the world in which we live.^[4] It has been argued from various perspectives that law is a system of rules that we are expected to obey. H. L. A. Hart argues that the demand made by a robber at gunpoint to "give me your money" cannot be called a law because this demand cannot be considered to have the standing character of law. Sociologist Giddens explains how each individual's words and actions maintain legal practice with a certain structure, as based on the interactions between defense attorneys, prosecutors, and judges during the sentencing process. The fact that law forms and maintains a system of enduring norms, or practices and customs with a certain structure, is demonstrated by "Eye in the Sky," in which the involvement of U.S. military in operating a drone strike over Kenya is accepted without any reservations.

Our another world

According to Cover, law is not only a system of rules that we are expected to obey, but also the world in which we live. As Cover explains, there is a difference between the act of sleeping late into the morning on Sundays and the act of not observing Holy Communion, and the act of eating snacks and the act of desecrating the Day of Atonement (fasting during Yom Kippur). Sleeping and eating have different meanings in light of the requirements of religious teachings on communion and fasting. The meanings that the law gives to our actions include not only resistance and disobedience, but also obedience, hospitality, struggle, perversion, ridicule, loss of face, and respect etc.^[5]

Cover's essay depicts the history surrounding the emancipation of slaves, particularly the activities of Frederick Douglass, who for a certain period of time fell out with abolitionist William Lloyd Garrison. When Douglass first escaped slavery, he shared the same view as abolitionists, who thought that the U.S. Constitution condoned slavery. However, as Douglass published journals and held discussions with various abolitionists, he reached the conclusion that maintaining and perpetuating slavery could not be the aim of the Constitution, which had been enacted for the purpose of "forming a more perfect Union," "establishing Justice," and "securing the Blessings of Liberty" (preamble of the Constitution). Douglass developed a vision of another world in which the entire American order of slavery lacks a basis in law."^[6]

In regard to the AUMF, another world was depicted by the position of Congresswoman Barbara Lee, who spoke at the Congress where the resolution was passed and only voted against it. Her "no" vote criticized how, at the time when it was difficult to make critical decisions after the September 11 terrorist attacks, the resolution abandoned Congress's responsibility in regard to the use of force and approved the use of force to any extent necessary against parties whom the President deemed to be involved in the September 11 terrorist attacks. Lee worried that the resolution would result in the U.S. becoming the very evil it deplores.^[7] Lee's "no" vote was an objection to the AUMF based on a vision regarding the use of force.

"We all live in a normative world."

In the song "Yellow Submarine" by The Beatles, a former submariner talks about his experiences and the people sing "We all live in a yellow submarine." In the song, people rode in the submarine until they found the deep blue sea. Cover teaches that the law is our world, and the question is what kind of conscious attitude we should have toward that law.^[8] Following the example of Yellow Submarine, we can say that "We all live in a normative world." Our world arguably changes depending on our conscious attitude towards the law.

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[1] The film "Eye in the Sky" directed by Gavin Hood (in collaboration with Entertainment One and Raindog Films, 2015).
[2] Congressional Research Service, 2001. Authorization for Use of Military Force: Issues Concerning Its Continued Application, p. 10, April 14, 2015. The use of drones against terrorism remotely away from the battlefield is one of three contentious issues of activity and policy under the AUMF.
[3] Stephanie Savell, Costs of War: The 2001 AUMF: A Comprehensive Look at Where and How It Has Been Used (Watson Institute for International and Public Affairs, 2021) (https://watson.brown.edu/costsof war/papers/2021/2001AUMF).
[4] Robert Cover, Nomos and Narrative, in Martha Minow, Michael Ryan and Austin Sarat, ed., Narrative, Violence, and the Law: The Essays of Robert Cover, pp. 96-7, University of Michigan Press (1995).
[5] Cover, note 4, pp. 99-100.
[6] Ibid., p. 137. The recognition that slaves were human beings but were reduced to chattel by law was important to Douglass's vision. See Masafumi Yoneyama, "Manhood in Frederick Douglass's My Bondage and My Freedom," Journal of the School of International Studies, Utsunomiya University, No. 43, pp. 91-106 (2016). Douglass also learned from a legal scholar (Lysander Spooner), who argued that slavery was unconstitutional and contrary to natural law.
[7] Democracy Now, Rep. Barbara Lee, Who Cast Sole Vote After 9/11 Against "Forever Watrs," on Need for Afghan War Inquiry, September 10, 2021, https://www.democracynow.org/2021/9/10/barbara_lee_2001_vote_against_war.
[8] The law and literature approach discusses another world found in literature and literary arts that deal with legal issues. "To Kill a Mockingbird" (directed by Robert Mulligan; produced by Alan J. Pakula, 1962, based on the original story by Harper Lee (translated by Shigesaburo Kikuchi, Kurashi-no-Techo, 2016)), which is covered in the undergraduate course "Law and Literature," has the reader imagine another world devoted to eliminating racial discrimination in criminal trials.

Kazumichi Tsutsumi／Professor, Faculty of Policy Studies, Chuo University
Areas of Specialization: Criminal Law and Legal Policy

Kazumichi Tsutsumi was born in Fukuoka Prefecture in 1960. He graduated from the Faculty of Law, Chuo University. He completed the Master’s Program and earned the required credits of the Doctoral Program in the Graduate School of Law, Chuo University. He holds a PhD in law from Chuo University. He served as Full-Time Instructor and Assistant Professor in the Faculty of Policy Studies, Chuo University before assuming his current position in 2002.

His areas of specialization are criminal law and legal policy.

His research themes are determining the significance and limits of punishment, questioning the appropriate norms for equal maximization of each person’s self-respect and self-fulfillment, and exploring what is necessary to design a system for the aforementioned maximization.

His main works include Trends in U.S. Criminal Cases VIII, written and edited, Chuo University Press (2022), Development of Criminal Justice: Retributive Justice and Legal Policy, sole author, Shinzansha Publisher (2022), and more.

He is a member of the Criminal Law Society of Japan, the Japanese Association of Victimology (Director), and the Association for the Study of Security Science.

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