Time for Secretary Clinton to Call Her Lawyer?

by Kenneth Anderson

If I were the Obama administration, I would be looking to put together an ad hoc task force of senior administration lawyers, led by Harold Koh, to defend the following propositions as matters of law. It is:

  • okay to enter a country that is “unable or unwilling,” [temporarily recall Deeks to DOS]
  • okay to treat it as armed conflict under jus ad bellum justification of self-defense,
  • okay not to undertake the action as law enforcement, versus attack in armed conflict,
  • okay to use lethal force,
  • okay to attack without warning,
  • okay to attack an unarmed, unthreatening, but still lawful target,
  • okay to attack without inviting surrender,
  • okay to press the attack with lethal force and without pause, the exception being if the target were to succeed in completing the act of surrender — which, in this case, is likely to be never, because there will not be enough time, and
  • okay not to give the target time to make an attempt at surrender, even if inclined or even attempting, by pausing or slowing the attack.

This is in shorthand, of course; we are all international lawyers here, and whether you agree or disagree with the propositions, we more or less know what we’re discussing.  However, defense of these propositions, if that’s what one wants to do, practically requires someone with Harold Koh’s stature – which is to say, Harold Koh – to impose some legal order on the administration’s current international law chaos.

Were I advising the administration, I’d add that there is also an urgent need for senior military lawyers, ones who are in charge of interpreting the nitty-gritty legal circumstances of surrender, to explain to the public why surrender is not just “wave something white, done,” everyone stop firing.  In the comments to an earlier post here at Opinio Juris,  two commenters — Alan Kaufman, a former Navy JAG with a distinguished career, and Ian Henderson, author of a well-regarded treatise on targeting law — each weigh in on what surrender means in practical legal terms.  They manage to say more than all the senior administration officials put together have managed to say – merely in the comments to a blog post.

http://opiniojuris.org/2011/05/06/time-for-secretary-clinton-to-call-her-lawyer/

14 Responses

  1. “okay to treat it as armed conflict under jus ad bellum justification of self-defense”

    Could there be a clearer misstatement of international law?  Why would the U.S. want to so specifically conflate the jus ad bellum and the jus in bello, a critical distinction that it has done so much historically to reinforce?

  2. I don’t follow you.  There’s an armed conflict, in the US view.  It is governed jus in bello by the law of armed conflict.  As far as the justification for the resort to force is concerned, it is an appeal to self-defense, whether that appeal is correct or incorrect.  I’m not looking to conflate the two; on the contrary, I’m giving the US view that, having resorted to force, whether lawfully or not under jus ad bellum, what is underway is an armed conflict and governed by the relevant laws of war; one might disagree that it can be an armed conflict and hence governed under the laws of war, but I take it that is the US position. I leave it to others to debate whether there could be a clearer misstatement of international law.

  3. Your comment makes complete sense.  Your statement in the post doesn’t, because it implies that the lawfulness of the self-defensive act is what leads to the existence of armed conflict.

  4. “the US view that, having resorted to force, whether lawfully or not under jus ad bellum, what is underway is an armed conflict and governed by the relevant laws of war”

    It’s worth noting that the U.S. view is plainly incorrect.  Any use of force against a state creates an international armed conflict; a use of force against a non-state actor, national or transnational, only creates (non-international) armed conflict if it satisfies the organization, intensity, and duration requirements of customary international law.

  5. First – Ken, thank you for the notice.

    Second, I think you are dead right here. As I said elsewhere on this blog in a comment response to a comment by Professor Ben Davis:

    This is the field of battle for those who wage lawfare, in my view. The US should have a legal strategy that communicates its view of the normative landscape in ways that seek to conform that landscape to be supportive of US national security strategies and operations.  In the absence of such a strategy, we cede this space to others, and may not like the result.
    The defensive and reactive nature of response by the lawyers speaking for the US in this case is yet another example of the failure of the US national security establishment to have a lawfare strategy in support of its other, overall efforts.  Shouldn’t these legal objectives be built into the operational planning and into the talking points for later?  This has been a missed opportunity…and once again cedes the lawfare initiative to the critics.

    Third, Professor Heller:  The US at least needs to make its view plain — that this is a noninternational armed conflict in being, and has been ongoing for some time and continues.  If that view is incorrect – as you appear to suggest if I understand your comment properly  —  then the international system will see it corrected.  I would suggest, however, that we are watching the opposite occur.
    The US military operational strategy, in using drones and special operations forces to make targeted killings of individuals associated with specific terrorist organizations in a number of disparate geographical locations seems to me to be founded on the proposition that the US is currently engaged in a noninternational armed conflict with these specific terrorist orgaizations.  As clumsily done as it has been, the message from the US national security establishment is unambiguously that these operations have been and continue to be conducted in accordance with the laws of armed conflict.

    In any event, what is your view as to whether the current level of force between the US and Al Qaeda satisfies the organization, intensity, and duration requirements of customary international law such that a state of noninternational armed conflict exists (I confess I am ignorant of this standard in the customary international law).

    Final point:  If you haven’t seen it yet, this is worth a read

    http://www.humanrightsfirst.org/2011/05/05/was-killing-osama-bin-laden-legal/

  6. Alan,

    I categorically reject the idea that there is a NIAC between the US and “al Qaeda.”  There is no “al Qaeda,” only specific al Qaeda groups, some of which are interconnected and some of which are not.  I do believe that there is a NIAC in Afghanistan involving “original” al Qaeda (which is what I think justified targeting UBL), and there may be one in Pakistan, though I’m starting to wonder about that.  I do not believe that there is a NIAC anywhere else — most notably in Yemen.  As a result, unless a target is a member of one of the specific al Qaeda groups fighting in Afghanistan or (maybe) Pakistan, IHL does not apply to their targeting; IHRL does.  Targeting al-Aulaqi, for example, is governed by IHRL, because there is no NIAC in Yemen and there is no evidence that al-Aulaqi is a member of one of the al Qaeda groups in Afghanistan or Pakistan or is otherwise directly participating as a civilian in the hostilities there.

  7. Great stuff Kevin, Kenneth and Alan (thanks for the kind words – I agree with what you say there about the self-defense space).
    IAC and NIAC – I will not tread for the moment as it always takes me some time to walk through.  I do see necessity and proportionality being there and military advantage under either. 
    Agree Gabor is a great read.
    One of the reasons we are so weak is that the way international law is taught in law schools is as foreign relations law. 
    I don’t see this going all the way to lawfare but see it more as a search for truth and light (without naivete).  Let the chips fall where they may.
    We really need the JAG’s very badly here because they have the street cred to speak clearly to this in laymen’s terms.  I am not sure Koh can get there because of the self-defense mantra he is spouting and I do not believe he has the granular experience of the JAG that Alan described in an earlier post.
    I will be trying to demystify for my Toledo neighbors on Sunday here in Toledo on a thing I taped on Thursday.  Will post a link when it comes up.
    Keep fighting with this.  I think a very important part of what we do is to demystify this stuff for ourselves and others.  I think the technical analysis frees us from the technical analysis and from being played by the political side of these things (recognizing that the technical boxes have a political dimension).
    Peace (there is a word for today!),
    Ben

  8. “I categorically reject the idea that there is a NIAC between the US and “al Qaeda.”  There is no “al Qaeda,” only specific al Qaeda groups, some of which are interconnected and some of which are not.  I do believe that there is a NIAC in Afghanistan involving “original” al Qaeda (which is what I think justified targeting UBL), and there may be one in Pakistan, though I’m starting to wonder about that.  I do not believe that there is a NIAC anywhere else — most notably in Yemen. ”

    This is a nonsensical position; it implies, for example, that a member of the ‘”original” al Qaeda’ (the very notion of which is problematic) could escape lawful military action merely by exiting a geographic space.  That’s completely inconsistent with the law of armed conflict generally since active combatants in those conflicts may be targeted at will regardless of whether they are in an active theater of war or not.

  9. Seal Team 6 response to OBL “…we don’t need no stinkin’ badges…”.  [simultaneous flash of bright fire and silenced double-tap]. 

  10. It is enlightening to see learned counsel on both sides of the issue debate the minutiae of international law in regards to the elimination of Al Qaeda. It’s the type of things that the enemy, and make no mistake, they are the enemy, enjoy almost as much as do I.

    The difference being that they see this as one of their most powerful weapons with which to destroy the very system that enables that type of discussion.

    This is war, not crime. The fact that the enemy is composed mostly of non state actors is a tactical and strategic complication, it should not be a legal one.

    To make it simple I’ll state what we can call the Too Old To Work doctrine.

    “The United States will pursue, engage, and destroy our enemies where ever they may be, whether they are in uniform of a particular country or non state actors. We will also engage the forces of nations that shelter those enemies if they attempt to prevent our forces from completing their mission.”

    I know that this will not comport with the niceties of international law, but the enemy has no respect for that law and in fact uses it as a weapon.

    The current Administration has been largely feckless in it’s engagement with these enemies, I’m heartened to see that they took necessary action. Even if it was by accident.

  11. There is no international legislature.  “International Law” is just composed of treaties various nations have signed, treaties which only bind the signatories, and then only for as long as they choose to remain bound.

    Remember, the precedent was set over a generation ago, that the US President can end the USs participation in a treaty with the stroke of a pen, without any input from Congress.

    It cannot be that AQ can attack the US,  yet the US cannot legally respond.  A law like that will not stand.

  12. Response…
    First, the U.S. should recognize that under both the self-defense paradigm and the law of war paradigm, targetings of those taking a direct part in armed attacks (DPAA) or a direct part in hostilities (DPH) is lawful even without the consent of the state from whose territory the attacks are emanating or are planned and ordered (presumably through bin Laden’s couriers).
    Second, the U.S. should recognize that it is not at “war” with al Qaeda and that members of al Qaeda are not “combatants” with “combatant immunity” unless a particular member happens to also be a member of the regual armed forces of the Taliban during the international armed conflict that is ongoing between the U.S. and the Taliban with an expanded theater of war into parts of Pakistan — internaitonal in so many ways, and internaitonal so that U.S. military (like the Navy seals) have “combatant” status and “combatant immunity” for lawful acts of war during an international arme conflict.  Every time a state sends its military into another state to engage in combat, it should recognize that the conflict has been internationalized, that it is involved in an international armed conflict so that its military have combatant status.
    Third, an order to the Navy seals to take no prisoners, to refuse quarter, would be unlawful during an international armed conflict, but the Obama Adminstration states that the order was not merely to kill.

  13. This convoluted set of arguments is precisely why I said from the beginning that we should not address this situation (combating Islamic terrorist violence) as “war”, but rather we should have resurrected the entirely Constitutional concept of “Letter of Marque and Reprisal”. Let Congress issue a letter against “Any and all persons who commit acts of violence against others for reasons of Islamic Law or perceptions thereof, and any and all persons who aid and abet those committing violence”, to “Any actors under the Employ of the United States Government”… and it’s all good.

    Then hold a weekly show, “Anti-Terror Strike of the Week”, showing helmet-cam footage of various take-downs with narration and footage showing who the targets were and what they’d done, broadcast far and wide.

    THAT would shut down Islamic terror much faster and cleaner than this “Oh, let’s try to build up nations that foster US ideals in regions of the world that have no social knowledge or traditions of anything but dog-eats-dog violence” crap Bush and now Obama are perpetuating.

    FOCUS is the issue… of course, politicians never WANT to focus; that opens them up to criticism if/when they fail at the focused objective, but that’s another rant for another time. But legalistically, the way to properly address combat against non-state actors is “Letters of Marque”. Why we didn’t do this is beyond me.

    -MJ

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