On the Wittes/Heller Debate over Al-Aulaqi

by John C. Dehn

[John Dehn is an Assistant Professor in the Department of Law at the United States Military Academy. The views expressed in this post are his own and do not necessarily reflect those of the Department of Defense, U.S. Army, U.S. Military Academy, or any other department or agency of the U.S. government]

I agree with Kevin that not every wartime decision of our government is a judicially unreviewable political question. We can certainly debate whether the Supreme Court properly exercised jurisdiction in Hamdan, and whether the Court properly interpreted Common Article 3 of the Geneva Conventions of 1949 (my take on the latter is that it did not properly interpret the text, but effectively and properly stated customary international law). However, I do not believe that the courts determine the existence of an armed conflict or the identity of the enemy without reference to acts of Congress.

For these reasons, I believe the court must decide whether targeting al-Aulaqi is arguably within the scope of war-making authorized by the AUMF, and if so, whether the Constitution allows or requires judicial review of that determination under the circumstances. All of the legal issues Kevin mentions are ancillary to that primary question. Congress has, in effect, declared “war” on certain organizations (and even some “persons” if one reads the AUMF). The courts possess no power to review that decision, only to ensure its application consistent with any applicable domestic and international law to the extent possible, and only in cases over which the courts may properly exercise jurisdiction.

International law does not determine who may be designated an enemy by Congress. It is relevant only to determining what the executive has implied authority to do or not do when carrying out congressional war-making authorization, and then only if Congress has not spoken to the precise war measure at issue.

Congress has already authorized the use of the government’s war powers against certain groups and persons. The decision to do so is primarily vested in Congress by the Constitution according to Supreme Court case law (and may devolve to the President by congressional delegation, see the Prize Cases and others). While Congress cannot declare war on a U.S. citizen, it may authorize the use of war powers against state or non-state actors in which U.S. citizens are or may become members (see Prize Cases, Ex parte Milligan, etc.).

Congress placed no territorial limits on the AUMF, and — contrary to what Professor O’Connell often states — none is dictated by international humanitarian law such that the AUMF may be judicially limited, extraterritorially, to active war zones. Even if it somehow did, under the later-in-time rule, Congress may establish national policy in violation of international law. The Charming Betsy canon of statutory interpretation requires that the courts find Congress’s intent to do so is clear. If al-Aulaqi is within the scope of the AUMF, this requirement would appear to be satisfied. The AUMF should not be interpreted to apply or to be delimited to any specific location. There were no active war zones in which the U.S. was engaged when it was adopted. Those battlefields were created pursuant to its authority. Others may be created (even quite temporarily) if the object of those hostilities is within the scope of the AUMF.

The international law of neutrality and state responsibility is relevant to all hostilities conducted under the auspices of the AUMF. It protects only the legal interests of other nation-states, and only derivatively of their nationals. If Yemen has consented to U.S. military operations there, neutrality is not implicated. The Charming Betsy canon requires (and indeed, the Charming Betsy case itself required) the executive to respect the neutrality of other nations and their nationals without clear congressional authority (or probably ample justification under the law of nations) to violate it.

The most fundamental issues, then, become only whether al-Aulaqi’s conduct brings him within the scope of the AUMF and whether he may be targeted consistently with any relevant international laws regulating war (at least any not superseded by Congress). Kevin does not believe so under relevant international humanitarian law, and I certainly have my concerns. Contrary to what some D.C. Circuit judges think, Supreme Court case law is clear that the resort to war powers by Congress requires the application of relevant IHL by the courts. IHL delimits who or what may be targeted or subjected to other measures of war unless Congress has otherwise stated. In the day-to-day of combat, decisions on these matters are made by mid-to-low-level government agents, meaning soldiers, airmen, marines, seamen and their commanders, without prior judicial review.

The threshold question in this case is fundamentally the same as it was in Rasul and Boumediene. It is whether Congress has somehow authorized (Rasul) and the Constitution allows (meaning it does not involve a political question, there is standing, the case is ripe, etc.) — or whether the Constitution requires (Boumediene) under the circumstances of this case — judicial review of an executive war measure argued to be taken in furtherance of the AUMF. Like Boumediene, the answer to that question may turn on the very unique circumstances of this case. The same or similar factors relevant to the availability of habeas and articulated by the Court in Boumediene are probably going to be relevant to this Fifth Amendment due process question as well, assuming the case is otherwise justiciable.

By way of example, if a soldier were to encounter a U.S. citizen member of an enemy armed organized group on the battlefield, I doubt that due process demands much other than an accurate or even fairly arguable identification of that individual as either a member of that targetable group, or if a civilian, as one directly participating in the hostilities of an enemy. U.S. citizenship is probably unknown. Prior judicial review is virtually impossible and probably not constitutionally required. Post hoc judicial review is possible (perhaps in a criminal trial or Bivens case) but the measure of deference to be afforded such decisions is probably quite great. Al-Aulaqi is not this case.

I could go on, but this is enough to emphasize that the key to this whole discussion is what the AUMF allows, and what the Constitution allows or requires, in this particular case. Compliance with IHL is a secondary consideration that might somewhat inform the threshold question of the authority, propriety or necessity of judicial review, but it does not determine it. The primary issue concerns the scope of hostilities authorized by the AUMF.

For these reasons, in my opinion, Wittes is correct to assume the existence of armed conflict pursuant to the AUMF and to frame this as a targeting question. Kevin is correct to emphasize the importance of al-Aulaqi’s status under relevant international humanitarian law.


22 Responses

  1. John,

    Thanks for the excellent post.  I agree with 97% of what you say — particularly your statement that “Congress may establish national policy in violation of international law.” As I have consistently argued, the US is free to take the position that the laws of war are irrelevant to how it is going to define armed conflict, targeting, detention, etc.  What it is not free to do is claim that it is acting consistently with the laws of war when that claim is based on an interpretation of those laws that is rejected by (nearly all of) the rest of the world.

    The 3%, then, is this: “The most fundamental issues, then, become only whether al-Aulaqi’s conduct brings him within the scope of the AUMF and whether he may be targeted consistently with relevant international laws regulating war.”

    The AUMF’s definition of armed conflict is not consistent with the laws of war.  According to those laws, there is no armed conflict between the US and al-Qaeda outside of Afghanistan and Pakistan.  How can the laws of war have anything to say about the rules of targeting in an “armed conflict” that is not, according to those laws, an armed conflict at all?

  2. “Congress placed no territorial limits on the AUMF, and — contrary to what Professor O’Connell often states — none is dictated by international humanitarian law such that the AUMF may be judicially limited, extraterritorially, to active war zones.

    The AUMF should not be interpreted to apply or to be delimited to any specific location. There were no active war zones in which the U.S. was engaged when it was adopted. Those battlefields were created pursuant to its authority.

    In other words, you flatly disagree with the conclusions of the ILA Use of Force Committee (and the ICRC) on this point?  [That, citing the more-lenient 2008 ICRC yardstick, in non-international armed conflict, a minimum level of intensity is needed, in a protracted armed confrontation between armed groups of some minimal organization, for an armed conflict to exist, and thus for the law of armed conflict to apply.] 

    Those common sense standards presuppose that more than one party is engaged in “armed confrontation.”  As I would hope everyone defining “armed conflict” – Congress included – would agree is fundamental to the existence of such a state of violence, before peacetime law and judicial process are, of necessity, superceded or suspended where and while that armed conflict operates.

    Also, aren’t you saying that mere “authority” can create “battlefields” and thus lawful “armed conflict” – even where no violent conflict of any kind is in evidence?  Isn’t that an extremely dangerous proposition and power for the nations of the world to assert (and to easily abuse) to avoid the ‘inconvenient’ restrictions of peacetime law?  Wouldn’t exercising such a power of “self-defense” in name only, by engaging in one-sided “sporadic bombings and other violent acts,” violate, among other things, the United Nations Charter?

    What’s the evidence, if any (aside from how Congress has seemingly tolerated the abuse of the authority it granted to kill those responsible for, and accessory to, the 9/11 attacks) that Congress, in enacting the 2001 AUMF, “clearly intended” to authorize military force abroad in violation of the law of armed conflict (as Charming Betsy would require for the law of armed conflict to cease to apply, though it continues to apply today in the Guantanamo detention litigation, over the protestations of a couple of D.C. Circuit zealots)?

    Are you saying that the fact that Al-Aulaqi has been openly targeted for killing by the Obama administration somehow itself proves that Congress intended the 2001 AUMF to ignore or violate the law of armed conflict?

    To make sense of this debate, don’t we have to decide, or know, whether or not Congress intended to violate and ignore the law of armed conflict when it passed the 2001 AUMF, and then stick with the arguments that answer dictates?   And if the intent of Congress is unclear from the plain language of the AUMF itself, doesn’t that mean both that Charming Betsy’s threshold (for ignoring international law) is likely not met and that we need the judiciary to rule on that question in this case to know the answer?

  3. What it is not free to do is claim that it is acting consistently with the laws of war when that claim is based on an interpretation of those laws that is rejected by (nearly all of) the rest of the world.

    What does “not free” mean?  Does it mean that if Congress passes a statute authorizing “X” and declaring that “X” complies with international law, the statute is a nullity, whereas it would be valid if the second provision had been omitted?  That doesn’t seem right.  What if Congress authorizes “X,” the State Department declares that “X” is consistent with international law, and the majority of foreign law professors disagree with the State Department’s declaration?  Surely “X” is still the law.  So I’m having a hard time attributing any meaning at all to the statement that a nation can do “X” all it wants, but it is “not free” to claim that “X” complies with international law.

  4. Briefly, Anon, I do not disagree with the ICRC at all.  I do not think anybody disagrees that the level of intensity for an armed conflict exists in Afghanistan or Pakistan.  The question is and remains whether the hostilities carried on there may be extended, by a party to the conflict, to areas of relative calm and thereby immunize them from attack.  The laws of war apply to the “belligerent intercourse” of contending parties to an armed conflict wherever that intercourse occurs.  It is not strictly limited to some vaguely defined war zone of sufficient intensity.  Once the intensity threshold is reached, a party to that armed conflict cannot send or incorporate forces outside a zone of conflict to immunize them from attack.  The key question is whether the conduct of those forces is related to the hostilities in question.

    To answer your last point, briefly, we must first give plain meaning to the text of what Congress authorized.  If it is irreconcilable with relevant international law — and I am not saying it is — the later-in-time rule, rather than the Charming Betsy canon, prevails.

  5. Kevin,
    Thanks for the kind words and insightful response.  I think we disagree (and have in the past if memory serves) on the geographical scope of non-international armed conflict under both U.S. and international law.

    In my view, the U.S. may create new zones of conflict pursuant to the AUMF so long as the hostilities are within the scope of war-making authorized by the AUMF (in other words, sufficiently connected to the war with al Qaeda as authorized by the AUMF).  As I said to Anon, the enemy does not become immune from attack by incorporating or sending forces outside of an active a zone of conflict. To put it differently, may al Qaeda in Pakistan, as you call it, attack purely military targets in the U.S.? Does international law, or international human rights law, prohibit this?
    You raised an interesting point before, I think, about the relationship of al-Aulaqi’s activities to the armed conflict authorized by the AUMF that I thought might have some legs if sufficiently fleshed out.  I think more analysis of state practice is needed regarding the level of organization (or affiliation) a non-state actor must have to trigger international humanitarian law.  My gut feeling is that it is less about the organization of the non-state actor and more about the intensity of (or its relationship to) ongoing hostilities.  Some turn-of-the-century Supreme Court case law and more recent ad hoc tribunal decisions seem to broadly support this view.
    My main point, however, is the AUMF determines the existence of an armed conflict for all relevant purposes of U.S. law.  Regardless of what else international law says on that point, the existence of that armed conflict from the standpoint of domestic law then triggers the observance of relevant international humanitarian law.

    Ironically, your comment seems to eerily echo that of Bush administration.  They believed an armed conflict to exist, but that international humanitarian law had nothing to say about it because it was a “new kind” of conflict, neither international nor non-international. I am sure you and many others would fill that legal lacuna with full panoply of international human rights law (or the Bill of Rights).  I think it is and has to be, as found by the Supreme Court in Hamdan, a non-international armed conflict subject to all of the rules thereof.
    You asked conservatives earlier whether they believe Hamdan was wrongly decided. I tend to believe that my position accepts Hamdan on its terms: that a non-international armed conflict exists. Feel free to correct me if I am wrong about that. The net effect of that conclusion, though, is that if the case is otherwise justiciable, the Court must decide whether al-Aulaqi’s activities are sufficiently associated with that conflict and of a nature to justify the use of war powers against him, and whether the courts constitutionally may or must be involved in determining such matters ex ante.

  6. y81,

    I did not mean “not free” in any operative legal sense.  I meant that the US is simply wrong if it believes that its approach to the laws of war comports with how the overwhelming majority of the world’s states view those laws.  The US likes to claim that it complies with the laws of war — but what the US really means is that it complies with the laws of war as it has self-servingly (mis)interpreted them. I think it is important to keep reminding people that the US’s invocation of international law is mere rhetoric designed to obscure the fact that, in the end, the US feels constrained only by its own domestic law.
  7. John,

    To clarify, by “wrongly decided” I simply meant that, according to the logic of Wittes’ argument, the legal issue in Hamdan — the nature and scope of the conflict in Afghanistan — was a political question that the Supreme Court should not have decided.  Substantively, I find the Court’s analysis flawed but the conclusion basically correct.
  8. During the Revolutionary War, the British regarded the US as a non-state party. Although most of the fighting was confined to the US colonies, the US was able to project some force to previously uninvolved remote areas. We dispatched John Paul Jones to capture British ships near the Irish coast, and Benedict Arnold led an expedition to capture Montreal.

    Nobody has ever suggested that because we were regarded as a non-state party that a US army approaching Montreal could not be targeted for combat simply because it was far from any previous battlefield and there was no sustained combat of sufficient intensity to create an armed conflict in Canada. Rather, the general historical view has been that when the enemy sends an army to invade, you fight them off with your army and you don’t worry about whether they represent a recognized country or whether the attacking army consists of British subjects.

    In the past, the only reason why armed conflicts with non-state parties have tended to be geographically limited is that non-state parties have lacked the resources to project military force to distant locations. This is no longer the case. Once hostilities reach the level of intensity and duration to initiate an armed conflict, then whether the enemy is a state or non-state party, you must be prepared to defend yourself and your allies anywhere in the world.

    In real international law, an armed conflict between nations was automatically world-wide, at least across the 70% of the earth’s surface that represented the high seas. During the Napoleonic Wars, British and French forces fought each other in the Pacific. That is, an armed conflict has always been everywhere, except for where it specifically wasn’t (neutral countries).

    The weird thing is that countries have explicit borders, so you know where a country is and where it isn’t. Non-state parties can be trans-national and extend, like al Qaeda, across an entire continent. Yet while conflicts between geographically defined states have always been world wide, someone has an idea that conflicts involving non-geographically limited non-state parties are limited to the specific area of yesterday’s battlefield (and not to the places where they are preparing for tomorrow’s battles). That not only doesn’t make any sense, but it also is not based on any actual principle of military law or history.

  9. “Regardless of what else international law says on that point, the existence of that armed conflict from the standpoint of domestic law then triggers the observance of relevant international humanitarian law.”

    I think this is a fascinating question.  My response would be that IHL applies only to conflicts that qualify as “armed conflicts” within the meaning of international law — not within the meaning of the AUMF. Differently put: the US is free to call whatever it wants an “armed conflict,” and it is also free to comply with the requirements of IHL in that conflict if it so chooses.  But that has nothing to do with IHL itself, because IHL applies only to conflicts that qualify as “armed conflicts” under the objective criteria articulated by conventional and customary international law.  As a matter of international law, therefore, the US’s actions in such conflicts continue to be governed by IHRL, not IHL.

  10. Kevin, I fully agree that it is a fascinating question.  My own views on the matter are influenced by the rich U.S. history of broadly treating armed hostilities as armed conflict subject to the laws of war.  This was the case whether the conflict was international, transnational or internal. 

    As I am sure you know, taking a broad view of armed conflict had a “civilizing” effect on war in the 19th century.  For those unfamiliar, early on, the rules for fighting among Christians were different that the rules for Christians fighting others.  Later, at least through the beginning of the 20th century, customary international law was based on the practice of “civilized” nations  (see Paquete Habana, referring to the “customs and usages of civilized nations” and looking to the practice of Japan as one of the most recent members of the civilized nations). 

    This customary law was not universal by definition, and did not need to be followed in wars with the “uncivilized.”  Treaties like the Hague Convention and annexed regulations maintained this approach with general participation clauses, which state that unless all parties to a conflict are parties to the treaty, the treaty does not apply.  It is only when the view of customary international law changed to one of universal obligation that this understanding changed.  And now these very same Hague regulations are widely viewed as universally applicable customary IHL. 

    In the interim, states were slow to expressly agree to extend the rules of international armed conflict to non-international armed conflict (see the first additional protocol apply rules of international armed conflict to wars against colonialism, alien occupation and racist regimes).  This protected their sovereignty and freedom of action in dealing with domestic threats.  Though many 19th century commentators believed that the laws of war applied to civil wars (as the Supreme Court found to be the case in the Prize Cases), states frequently asserted that it did not apply to a given non-international armed conflict.  Thus, a dichotomous view of IHL applicable to international and non-international armed conflict began to take form roughly around that legal positivism was gaining popularity.  The understanding of this IHL dichotomy was altered again in Tadic.  (It should be no surprise then that the Tadic Court expressed thanks the U.S.)

    I also find it fascinating that many wish to apply their view of customary international human rights law functionally, meaning that it follows the individual anywhere, when treaties on the subject have a territorial or “jurisdictional” component (see e.g. the ICCPR (1966)).  This is probably why the first and second protocols (1977) included similar protections (see Art. 75, API & Art. 6, AP II) over 10 years later — to cover the perceived gap.

    Some of those same people wish to apply international humanitarian law territorially, when treaties on the subject indicate that they apply functionally, meaning to acts related to or in furtherance of an armed conflict.  While some IHL conventions clarify that they extend to the complete territory of all parties to a conflict, they do not limit their application to those territories, as the ICCPR does to person under the “jurisdiction” of a party (a typically territorial but certainly functional concept in some cases).  Those clauses are there to clarify that IHL obligations exist rather than having issues such as the status of enemy nationals in a foreign land (covered by the fourth Geneva Convention) left solely to domestic law.

    At any rate, reasonable minds may certainly differ on the relationship and applicability of IHL and IHRL at certain times and places.  I hope this comment helps to clarify why that is the case.

  11. The U.S. Supreme Court has been inconsistent in regard to whether a U.S. international legal obligation can be superceded by a later Congressional act. The Supreme Court in The Schooner Exchange v. McFaddon (1812) and Macintosh v. United States (1931) said Congress could not. However, the U.S. Supreme Court has stated that Congress can in several cases in the latter part of the 19th century (beginning with the Cherokee Tobacco Case (1870)) and in Breard v. Greene (1998). Relevant to our discussion of whether Congress acting under its war powers authority can violate international law, the Supreme Court stated in dicta in Macintosh that Congress could not. As Jordan Paust and I have written about extensively, the last-in-time rule is unconstitutional on a number of grounds. See Martin, Constitution as Treaty (Cambridge Univ. Press 2007). We should be careful about accepting the last-in-time rule as settled constitutional law.

  12. It would appear that “70% of the earth’s surface” (the high seas) is out of reach of Al Qaeda and thus off-limits for attacks on Al Qaeda, given their lack of a navy or any sea-going capacity (possible hijackings aside).

    That leaves 30% of the earth’s surface potentially open to attack in the name of the authorized armed conflict against terrorists declared in 2001 by the United States – the only state party in all the world to declare the unending battle against sporadic terrorist violence a “war,” despite the worldwide threat and toll of terrorism.  Or, at least, the subset of that 30% of the earth’s surface that’s outside the United States and not considered “neutral” territory, in the midst of the U.S. armed conflict that may be ongoing against those persons and organizations responsible for the attacks of 9/11 (“may be” ongoing because how would we know? – any more than our forces in Afghanistan know for sure who’s a legitimate, 9/11-connected target among those they’re shooting and bombing, given the intermingled, perhaps-one-and-the-same, civilian and “insurgent” population).  Organizations that include, presumably, Al Qaeda in its 9/11 form, but seemingly not the possibly-related post-9/11 Arabian Peninsula off-shoot in Yemen. 

    The military’s Guantanamo track record – with post-9/11 intelligence still fresh and available to examine detainee involvement in 9/11 and Al Qaeda in 2001 and 2002 – is deplorable; 70% of all detained “enemy combatants” have been voluntarily released (presumably mostly due to mistaken identity), after transport to Cuba and years of imprisonment, even though the armed conflict in question is said to continue, and violent campaigns abroad are still richly resourced.

    Al Qaeda members responsible for 9/11 have been recently declared by our own government, on the record, as I recall, to consist of less than 100 persons on the whole territory of  Afghanistan (since that’s the maximum number of Al Qaeda members said to remain there).  And how many tens of thousands of heavily-mechanized U.S. forces, with total control of the air space, are located in Afghanistan today, in the name of the 2001 AUMF, and its targets, to actively “conflict” with those 100 lightly-armed persons?  (Obama’s “surge” alone consisted of 30,000 troops.) Or is what remains of the Taliban, years after it was deposed as a sheltering government, still supposed to be a valid 2001 AUMF target?

    Logically, isn’t our primary mission inside Afghanistan today the years-long ISAF Mission that has (apparently) nothing directly to do with the attackers of 9/11 or the 2001 AUMF?  With a secondary mission (or perhaps this one’s the primary mission) of creating a staging area for attacks inside sovereign Pakistan (with its permission) against persons there responsible for the attacks of 9/11?

    Is Pakistan a “neutral” state in this scenario?  

    Is Yemen (whose government has reportedly both granted and declined permission for armed U.S. attacks against terrorism suspects there) a neutral state?  

    Since both Pakistan and Yemen are apparently making meaningful efforts to counteract the presence of terrorists or would-be terrorists on their sovereign territory (and therefore are evidently not “immunizing” or knowingly providing safe haven to anyone), does the U.S. have a leg to stand on – without declaring war against Pakistan and Yemen (U.S. taxpayers help fund both governments) – to demand to use armed force on their territory if Pakistan and/or Yemen should tell us to take our threats and bribes and go home?

    What would become then of our “armed conflict” with the attackers of 9/11?  And, by the way, why haven’t we found those attackers and their accomplices yet, nine years and untold expenditures of human and material resources later?

    I think this won’t-pick-on-somebody-our-own-size U.S. “war” is seriously in need of some humility and basic human decency, not to mention a disinterested cost/benefit analysis. 

    Some of what’s missing in this debate is evident in the wise perspective and pointed history lesson about neutrality under the law of nations offered by United States Senator Littleton W. Tazewell of Virginia, while speaking back in January, 1825 during a debate about piracy (which, as the terrorism of its day, was exacting a terrible toll on U.S. shipping and passengers at the time):

    “Ought we not then to beware how we depart from the right-lined course our predecessors have pursued; how we assert principles in relation to foreign states, now, which they disavowed formerly?  Our moral strength, like chastity, once lost, can never more be regained.  Now, sir, let us look back into our own history for parallel cases; let us find what were the principles we asserted then, and inquire whether our practice now will accord with them.  If they are at variance, we should shun them as we would every thing that tends to evil.  There are many members of the Senate who will all recollect the incidents that occurred in the interval between the years 1793 and 1798, and what was the doctrine we then asserted and practised?  It was during the period of the French Revolution, when England and France were belligerents, and the United States was the neutral.  In consequence of this neutral position, our ports and harbors were filled with our own vessels, as well as with the vessels of both the belligerents and of other powers, not only with their merchant vessels, but with their fleets.  What was the practice then?  The moment one of the belligerents found vessels of the other in these ports, no matter whether it was a vessel of war or a merchantman, they blockaded them, in fact, although not in name.  Every harbor and bay of the United States was subject to this blockade.  What was our language then towards these belligerents?   You are at war with each other, and may, on the high seas, exercise the rights of war; but you have no right to come here and shut our ports as you have done.  We are at peace with each of you, and with all the world besides.  You cannot, therefore, claim the right of blockading us in name, and hence, ought not to exert the power of blockading us in fact.  Exercise your right of visitation and search on the high seas, and when you there find the property of your enemy, or the contraband property of neutrals, destined for your enemy, take it and apply it to your own use.  We do not complain of this.  But you must not place yourself at our very door, in order to examine our visitors and friends.  By so doing, you harass our lawful trade; you annoy our fair commerce; and you subject us, although at peace, to most of the inconveniences we should feel from flagrant war.

    This reasoning was just, and at last prevailed; both parties became satisfied of the rectitude of our claims, and yielded to them.

    Now, Mr. President,  if the actual presence of an enemy’s fleet, in a neutral port, in time of open war, cannot justify blockade, can the presence of a piratical vessel, in any port, justify it?  If the French, finding an English fleet in the Chesapeake, ought not to blockade them there, surely you, a neutral, finding a fleet of pirates in the neutral port of Matanzas, cannot blockade it, and so do that which one belligerent power would not be justified in doing towards another.”


  13. Anon,

    Unlike the French and British, pirates were considered enemies of all mankind under the laws of nations.  Neutrality law did not apply to pirates.  Senator Tazewell’s analogy was inappropriate. 

  14. Francisco –

    I obviously disagree with your assertion that Tazewell’s analogy was inappropriate, and I think you’ll find that the majority of legislators in the U.S. House and Senate in 1825 agreed with Tazewell’s position and analogy, even as those who debated repeatedly acknowledged that pirates were the “enemies of all mankind” under the law of nations (as they had direct and personal experience and reason to know all too well). 

    The pirates in question, apparently like most of Al Qaeda today, were based in (or fled to) the territory of a state (specifically, its colonial possessions) formally at peace with the United States, which is what was driving much of the 1825 debate (about legislation aimed at effectively combating that piracy without committing an act of war against Spain), to which Tazewell’s comments were a compelling and apparently pivotal contribution. 

    Quoting from a comment I made here in August (when I excerpted parts of the same Tazewell speech and the speeches of others in the Senate and House, to provide a sampling of, and some context for, those informed and informative piracy debates):

    “The Senate voted, 37-10, on February 1, 1825 to strike out (as proposed by Senator Tazewell) the third section of the bill, despite the impassioned advocacy of the Chairman of the Senate Foreign Relations Committee, Senator Barbour of Virginia, to which Senator Tazewell’s comments were a response. 

    The Senate then agreed to a motion to recommit the bill to the Foreign Relations Committee, with instructions to amend the bill to provide that, upon the failure of local governments of the specified Islands to apprehend and prosecute pirates being pursued by U.S. ships, authority would vest in the President and Navy ‘to land on the said Islands, in search of [in fresh pursuit of] pirates, and there to subdue, vanquish, and capture them, and bring them to the United States for trial and adjudication, as the said instructions of the President of the United States may prescribe; and further, to authorize reprisals on the commerce and property of the inhabitants of the said islands.’

    On March 1, 1825, after debate on that and other sections, the House of Representatives voted to strike more sections of the bill, and then passed it as amended (which largely reduced the bill to providing for an increase in Navy ships), in which changes the Senate then concurred.”



  15. [Many hours ago now, I managed to submit and thus trap in moderation here another two-link comment.  Thought I’d mention it, in case anyone’s interested in how Senator Tazewell’s principled sentiments were received in the intense Congressional debates of that piracy-plagued era.]

  16. Notwithstanding the protestations of nations concerning the rights of neutrals in times of peace, in times of war sea powers have always, by blockade, search, and seizure, denied their enemies the use of neutral harbors and shipping.  See Britain’s behavior during the First World War, when the US Eastern seaboard was under effective, though undeclared, blockade.  See the US “quarantine” of Cuba during the Missile Crisis.

    Perhaps the world is better for having conventions great powers feel free to disregard whenever they believe the benefits outweigh the costs.  But conventions historically honored as much in the breach as in the observance certainly lack the full moral force of universal customary practice.

  17. We should be careful not to confuse the blockade of a neutral port, which would be a war measure against the neutral country, with the right to visit, capture or attack enemy vessels.  Likewise, we should not confuse a blockade of purely peaceful trade (such trade was not a violation of neutrality) with a blockade responding to an obvious and serious violation of neutrality or act of war.

    Similarly, if a neutral country is unwilling or unable to expel or intern forces of a party to an armed conflict present in its territory, the party adverse to those forces has historically had the right to attack them in the neutral country.  Note that the trigger has been that the neutral country is either unwilling or unable to expel or intern.  Willing and even attempting but unable still yields the right of attack.  I know of what I expect to be a wonderful article being written on this (not by me).

    Anon’s various policy concerns regarding these armed conflicts and their incidents are certainly worth considering, but they do not change what the law allows or permits.  For example, suspected combatants or civilian security threats may be detained and, if ultimately believed not to be a threat, should be released.  It may or may not be wise policy, but it is permitted.

    Finally, like many other aspects of international laws related to armed conflict, neutrality has historically been declared and observed in both international and non-international armed conflict.  There are many Supreme Court cases in which preservation of our neutrality in a non-international armed conflict was crucial to the decision.

  18. “Note that the trigger has been that the neutral country is either unwilling or unable to expel or intern.  Willing and even attempting but unable still yields the right of attack.”

    An earlier, 1822 Congressional piracy debate was very much concerned with what was arguably “willing and even attempting but unable” efforts by the authorities of Spanish “West India” island possessions like Cuba to prevent the exploitation of their territory by pirates.  My 8/19 link above to excerpts of those piracy debates includes indications of that, and there was, as I recall from reading the broader debate then and in 1825, considerable angst expressed about what the Spanish government was or was not actively and in good faith doing to counter the problem, in response to diplomatic correspondence from the U.S. complaining of the “multiplied outrages and depredations” committed by those pirates on U.S. “seamen and commerce.”

    Commendably (if perhaps motivated in part by an imbalance of military power in Spain’s favor), the members of the House and Senate in 1822 voted to err on the side of respect for Spanish sovereignty, and declined to provoke Spain by any assertion of a U.S. right under the law of nations to attack/invade Spanish territory because Spanish authorities were, as self-interestedly defined by the U.S. Congress, “unable, though attempting” to prevent the harboring of pirates on its island colonies off the United States coast.

    Any paper – if it’s wonderful, so much the better – on this subject ought to be interesting, because the temptation and ability for the powerful to abuse that gray-area privilege, or right, against the less powerful or powerless, without just cause, is obviously immense – to the point, given bad faith, of eviscerating the rule to which it’s meant to be an exception.  Great imbalances of military power between nation-states, like great imbalances of personal wealth in a nation, seem inevitably to corrupt.

    “For example, suspected combatants or civilian security threats may be detained and, if ultimately believed not to be a threat, should be released.  It may or may not be wise policy, but it is permitted.”

    But has the U.S. military declared or even implied that the almost 600 Guantanamo detainees it’s unilaterally released, after years of imprisonment – every one of them adamantly and repeatedly declared to be an actual (not suspected) “alien unlawful enemy combatant” – were all freed because “ultimately believed not to be a threat [any longer]”?  I haven’t seen any indication of that, though one would hope that’s the case.  Thus, as far as I know, we have no public evidence to disprove an assertion that the freed detainees were never an actual threat to the U.S., nor lawfully detainable under the AUMF and law of armed conflict, from day one.

    I understand and agree that the military is “permitted” to release POWs/enemy combatants/detained persons who no longer appear to pose a meaningful threat to the U.S., post-capture, even as the armed conflict continues, wise or unwise as those releases may be.  I was using Guantanamo’s overlooked release rate to illustrate what appears to be (absent contrary evidence) a gross mis-identification of genuine enemy targets of the 2001 AUMF, even though those mistaken targets were mostly apprehended within one year of 9/11.  The military’s comparable mis-identification rate under the 2001 AUMF today, eight years later, is hardly likely to be lower, given the time that’s passed since the 9/11 attacks on which that AUMF is focused.

    To illustrate, by way of comparison, the sort of “threat”-laden “enemy combatant” the U.S. military continues to this day to claim (and win) the right to detain at Guantanamo, read about the just-decided habeas case of Toffiq Nasser Awad Al-Bihani, a Yemeni native raised in Saudi Arabia and apprehended in Iran, apparently very early in 2002.  Note, in particular, the effectively meaningless definition of “enemy combatant” that the D.C. Circuit has now imposed on the Guantanamo habeas litigation as a threshold for detention under the law of armed conflict, as elaborated by Judge Reggie Walton in Footnote 6 of his 9/22/2010 decision (released with redactions 10/7/10):

    “Even assuming that the catalyst behind the petitioner’s travel to Afghanistan was to prepare for battle in Chechnya, and not against the United States, this fact has no material effect on whether the government can detain the petitioner. Nothing in the AUMF, as construed by this Court and the District of Columbia Circuit, requires an individual to be “part of” al-Qaeda and to have also engaged in hostile aggression, or to have desired to engage in such conduct, against the United States in order to be rendered detainable. To the contrary, the circuit in AI-Adahi dismissed the significance of a detainee’s motive for affiliating himself with al-Qaeda because “the significant points are that al-Qaida was intent on attacking the United States and its allies, that [Osama] bin Laden had issued a fatwa announcing that every Muslim had a duty to kill Americans, and that [the detainee] voluntarily affiliated himself with al-Qaida.” _ F.3d at _, 2010 WL 2756551, at *6.”


    I should hope, and the nations of the world should hope, that “The authority to kill [under the 2001 Congressional AUMF and the law of armed conflict] is narrower than the authority to detain [as defined by the D.C. Circuit Court of Appeals].”

  19. Anon,

    In WWI and WWII, the British and French respected the neutrality of other European countries until they were invaded and partially conquered by the Germans. Once the German army was in Belgium, there was no remaining neutrality to respect. This is simply the most extreme example of the other side of the argument, that it is neither necessary nor proper to respect the sovereignty of a country after it has been invaded by a foreign military force that it cannot or will not expel.

    With regard for detention, in WWII the US detained soldiers who joined the German Wehrmacht before Pearl Harbor. Obviously they did not join at that time with the intention of fighting the US. No enemy soldier was released from custody because he originally joined the German army to fight the British, French, or even the Russians instead of the Americans.

    Every country engaged in a war has the authority to detain as prisoners members of the enemy armed forces no matter what their motivation for joining those armed forces. Engaging in combat with any of our co-belligerents is equivalent to engaging in combat with the US.

    For years al Qaeda ran what amounted to a scam. They advertised throughout the Middle East that in Afghanistan they were training soldiers to fight in Chechnya. That is why Arabs traveled to Afghanistan to join up, and that is why others donated money to al Qaeda. In reality, only a tiny handful of men ever made it to Chechnya, while the rest ended up as cannon fodder in the war against the Northern Alliance.

    Jose Padilla went to Afghanistan in order to fight in Chechnya, but he eventually agreed to be part of a special operation to blow up apartment buildings and kill thousands of American civilians on behalf of Islam. He was trained and equipped by al Qaeda, but was not a member of the organization. Neither were all the other soldiers who ended up fighting in the 055 Brigade on the front lines, or for that matter most of the 9/11 hijackers. So going to Afghanistan for the purpose of eventually fighting in Chechnya is not incompatible with someone eventually agreeing to attack the US and cause unimaginable harm. The laws of war have never required us to wait until the individual enemy soldier kills thousands of Americans, or even agrees to kill them.

    An enemy soldier is held or targeted because he is an enemy soldier. His motivations for enlisting are irrelevant. Nor does the fact that the recruiting Sargent lied to him about where he would be fighting change his status as a combatant. What is important is that he joined the enemy army. The long chain, starting with Hamdi, of enemy soldiers in the current conflict who admitted that they joined the enemy army, but then claimed that they personally did not have anything against the US and therefore should not be held as combatants, shows only a bizarre misunderstanding of the laws of war as they have been applied over hundreds of years.

    A criminal must be charged with his own personal actions. Each criminal stands trial for what he individually did. An enemy combatant is detained because he was a member of an armed unit, and because of what that army as a whole did or intended to do. The individual soldier need have no knowledge, or intent, or participation in any direct attack on the US or its forces. Criminal justice principles have absolutely nothing to do with the rules for detaining enemy combatants in armed conflict. So the DC Circuit has a precisely correct view of the issues and criteria as expressed in the cited passage.

  20. With regard for detention, in WWII the US [after it entered the war] detained soldiers who joined the German Wehrmacht before Pearl Harbor.

    After the U.S. was at war with Germany (as we are not, and have never been, with the forces of Chechnya), and since members of the German army, easily identified by their uniforms, could be lawfully held for the duration of active hostilities, logically and legitimately so.

    Engaging in combat with any of our co-belligerents is equivalent to engaging in combat with the US.

    Who are our “co-belligerents” in the non-international armed conflict (or were our “co-belligerents” in the international armed conflict against the Taliban government of Afghanistan) covered by the 2001 AUMF?  [See, regarding non-international “co-belligerency,” Kevin’s important new post this morning.]

    Jose Padilla was convicted by a jury of plotting to blow up American apartment buildings and thousands of American civilians?? I take it, Howard, that you haven’t been following the revelations about the torture-derived sources of such “intelligence.” Padilla was in fact convicted by a Florida jury, after years of brutal solitary confinement in a South Carolina military brig, of the domestic peacetime crimes of conspiracy to harm persons abroad/materially aid terrorists, and of material support for terrorism.

    An enemy soldier is held or targeted because he is an enemy soldier.

    How do we know an “enemy soldier” is an “enemy soldier”? What proves he “joined the enemy army”? In the case at hand, the “army” we are supposedly fighting (lawfully on our side, “unlawfully” on their side, says our side) wears no uniforms, and has no Navy, no Air Force, no tanks, no missiles, no artillery, no anti-aircraft weapons, no territory of its own, and no control of any territory that’s occupied against the will or ability of a sovereign nation to evict it.

    Self-serving “folly” – to use the D.C. Circuit’s own word against it – is a good way to describe the claim that a mid-1990s “fatwa” declared by the leader of the criminal  organization known as Al Qaeda instantly transformed the world into a battlefield of “armed conflict,” and with it every (pre-existing or new) member (and “associate”) of that criminal organization into a member of an “armed unit” of a non-state “army.”  Into a world of “armed conflict” in which the U.S. simply declined to fight until 9/11, and then, post-AUMF, declared all peacetime domestic law supposedly of necessity suspended whenever and wherever lethal force is employed by American armed forces abroad against the non-uniformed members of that ill-defined “army” of forces responsible for 9/11 – wherever found, unless we decide or are forced to honor rights of neutrality – but not suspended (or, at least, not supplanted by the jurisdiction of the law of armed conflict over privileged combatants) when the “armed units” or “co-belligerents” of that enemy Al Qaeda “army” likewise elect to employ lethal force against any member of the U.S. Army, Navy, Air Force, Marines, or CIA with whom they manage to come within rifle or IED range without being seen.  



    Quoting from Chapter 3:

    “The Panel considers that the US has conflated two distinct legal regimes by treating “acts of terrorism” as “acts of war.” The conflation has had profoundly negative consequences: In the short term for human rights violations, and in the long term for core principles of international humanitarian and human rights law.

    With respect to the first criterion, an armed conflict can only exist between clearly identifiable armed groups and/or State forces which are cohesively organised with a responsible and recognisable command structure, and have the capacity to sustain military operations. As noted, while the US no longer considers itself at war with all terrorist groups, it has identified its adversary as “al-Qaeda and associated groups”. The dominant view seems to be that al-Qaeda is a loosely connected network rather than a single transnational organisation.94 However, even if al-Qaeda were considered to be a cohesive and well-ordered collective that shared common strategies and tactics, it is still difficult to conceive of it as a unitary armed force and, as such, a party to the conflict. The inclusion of indeterminate “associated groups” makes it even more difficult to identify the parties to the conflict and impossible to characterise them. … Both practically and legally, there is no identifiable party to the conflict with which negotiation, defeat or surrender can occur.

    The second criterion requires a certain scale and intensity of armed conflict which would go beyond sporadic acts with long interstices: this criterion is also not met.

    The fact that there is no credible legal basis for a “war” on terror, as defined under the laws of war, outside of situations involving actual armed conflict, does not however imply that there is no legal framework within which to confront al-Qaeda and associated groups. On the contrary, criminal and human rights law remain fully applicable and, in the view of the Panel, these legal regimes are amply equipped to address the challenges of terrorism.”

  21. Anon,

    I am quite familiar with how poorly the “dragnet” was cast.  I think we should be careful about the attribution of “over-detention” and/or poor Guantanamo release policies to the “military.”  On these issues, the U.S. armed forces seem to have been largely instruments of policy, not makers of it.  Politicians who feared both the actual and (primarily?) political consequences of a potential mistake are probably more to blame.

    I fully understand your point about the loosely structured affiliation of al Qaeda groups or cells.  I am simply unwilling to definitively conclude that an enemy can attack with the magnitude of an armed force, and sustain the effort to do so (whatever the actual success), while organizing itself in a way that both complicates detection and attempts to avoid the legal consequences of engaging in war.

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