Obama Administration: Keep Your Hands off Our Armed Conflict!

by Kevin Jon Heller

The Obama administration recently filed its motion to dismiss the ACLU/CCR lawsuit that seeks to enjoin the government from using lethal force against Anwar al-Aulaqi.  Predictably, the motion relies on a potpourri of reasons why no court should ever review the lawfulness of Obama’s determination that an American citizen abroad should be summarily executed, including everyone’s favorite “state secrets” privilege.  I’ll leave analysis of those reasons to others.  I just wanted to flag here the following truly remarkable piece of legal reasoning in the motion:

The United States has further determined that AQAP is an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court recognized in Hamdan v. Rumsfeld, 548 U.S. 557, 628-31 (2006).

[snip]

Plaintiff contends that “armed conflict” does not extend outside of Iraq and Afghanistan. But if (as the Complaint appears to argue) the Court must concur in that judgment in order for plaintiff to prevail, then plaintiff’s claims are non-justiciable, because whether and in what circumstances the U.S. armed conflict with al-Qaeda and associated forces may extend—now or at some later point—is itself a question that involves predicate foreign policy and national security determinations beyond the purview of the Court.

Recall that, in Hamdan, the Supreme Court rejected the Bush administration’s claim that the Geneva Conventions did not apply to detainees at Guantanamo because the “conflict” between the U.S. and al-Qaeda was neither an international (IAC) nor a non-international armed conflict (NIAC).  The Court held that, at a minimum, the “conflict” was a non-international armed conflict to which Common Article 3 applied.

The Obama administration, as the first quote indicates, now accepts the Supreme Court’s conclusion that the “conflict” between the U.S. and al-Qaeda is a NIAC.  Yet when the ACLU/CCR challenges the geographic scope of that NIAC, the Obama administration argues, as the second quote indicates, that the issue is “non-justiciable.”  Differently put: according to the Obama administration, a challenge to a judicial determination of the scope of an armed conflict is non-justiciable.

Note, finally, that this appears to be yet another area in which the Obama administration is advancing even more radical claims than the Bush administration.  Readers should correct me if I’m wrong, but I do not believe the Bush administration ever claimed in Hamdan that its determination the U.S. was not engaged in either an IAC or a NIAC with al-Qaeda — the basis of its claim that the Geneva Conventions did not apply — was “non-justiciable.”  By the Obama administration’s logic, however, it should have.

http://opiniojuris.org/2010/09/25/obama-administration-keep-your-hand-off-of-our-armed-conflict/

5 Responses

  1. The US in Hamdan argued that the conflict was an “international armed conflict” because it involved sending US troops to another country. In this view, Common Article 3 did not apply because it was an international conflict, while the rest of the Geneva Convention did not apply because the conflict did not meet Article 2 and Article 4 criteria. However, the Court decided that Article 3 referred to non inter-national conflicts (conflicts that are not between nations) even when those conflicts are international in the sense that they cross borders. This brief simply accepts that AQ is not a state and therefore the conflict between the US and AQ  is non-inter-national as the Supreme Court defines it. This, however, leaves unresolved the status of the conflict between the US and the Taliban, the former government of Afghanistan.

    That said, the important part of the US brief is to point out that the non-inter-national conflict between the US and AQ extends to any location where AQ or its co-belligerents establish a sufficiently large military force and support structure (training camps, etc.) and intend to provide a military threat of attack against the US. It argues that the judiciary lacks the resources and ability to answer the three military and foreign policy questions that apply to this:

    1) When in the continuum between unrelated and subordinate does an armed enemy (AQAP) rise to the level of co-belligerent with another group (AQ) already engaged in an armed conflict. [The NIAC version of the question of whether Finland and Thailand were Axis powers during WWII].

    2) When in the continuum between a troop of boy scouts and a division of Marines does an armed unit of an enemy in Yemen achieve sufficient belligerent military force to regard the armed conflict to have spread to that country.

    3) Where in the complex and sometimes covert relationships between countries (where Pakistan provides covert support for our Predator attacks while the ISI provides covert support for the Afghan Taliban) does Yemeni acquiescence or covert support for Predator attacks on AQAP infrastructure inside their country satisfy the requirements of international law with regard to sovereignty and neutrality mentioned in the brief.

    Given that any information the US has to answer any of these questions is of the most sensitive and secret nature, courts provide no proper forum to discuss or decide any of these matters.

  2. That said, the important part of the US brief is to point out that the non-international conflict between the US and AQ extends to any location where AQ or its co-belligerents establish a sufficiently large military force and support structure (training camps, etc.) and intend to provide a military threat of attack against the US.

    Yep, and that is a position that finds no support in international law, which determines the existence of a non-international armed conflict by reference to the organization and the intensity of the confrontations between the state and the non-state actor, not by reference to the size of the non-state actor’s armed force or its intent to commit armed attacks.

    And, of course, Howard’s statement about the “non-international armed conflict between the US and AQ” extending to other locations assumes precisely what it has to prove: that there is a “non-international armed conflict between the US and AQ” in the first place.

  3. Given that any information the US has to answer any of these questions is of the most sensitive and secret nature, courts provide no proper forum to discuss or decide any of these matters.

    Actually, that’s precisely backward.  All three of those questions are legal, not factual, in nature.  They thus require absolutely no “sensitive” or “secret” information whatsoever to answer.

  4. Kevin and I completely agree on one point. Now that the US has formally stated its position concerning the legal issues governing the scope and nature of the armed conflict, there is no state secret issue that bars the court from addressing the legal issues. If it finds in favor of the government, then state secrets may preclude moving on to finding facts. However, if the government legal position is wrong, and this is confirmed through the inevitable appeals, then there is a whole lot of policy that has to change.

  5. Agreed.  And to be clear, I think there would be a colorable argument for invoking the state-secrets privilege regarding the information the government would need to use to apply the legal standards Howard mentions to a specific situation.  My comment was about the standards themselves.

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