Archive for
June, 2011

Catching up with the Senate on Detainee Matters

by Deborah Pearlstein

The past week has seen various developments in Congress’ efforts to consider legislation regulating the detention of ‘unprivileged enemy belligerents’ at Guantanamo and beyond.  Most notable, the Senate finally released the language of its version of the defense authorization bill, and it includes a number of provisions that parallel those passed by the House of Representatives back in May.  (The <a href=”full’>”>full bill </a>is a huge document, with detention-relevant provisions starting on p. 579.)   Recall that the House version of the bill would prohibit the use of Defense Department funds to transfer Guantanamo detainees to the United States for criminal prosecution, and also seemingly extend and/or expand the President’s authority to use force against terrorist suspects worldwide. I argued <a href=”here”>here</a>, <a href=”here’>”>here </a>that the legislation was ill-advised and praised the Obama Administration for threatening to veto it.
So how does the Senate version do? 

Too Bad Administration’s WPR “Hostilities” Gambit Isn’t Working (It Might Have)

by Peter Spiro

So now we have the Administration’s full-dress treatment of its take on “hostilities” under the War Powers Resolution, with Harold Koh’s testimony yesterday before the Senate Foreign Relations Committee.  I think it sets out a good case, well worth a close read.

I actually think it’s good enough that it might have carried the day.  Congress after all has acquiesced to other less than airtight arguments regarding the WPR.  The problem: the conclusion was too far out front of the supporting evidence.  When the Administration informed Congress of its position on the non-applicability of the WPR on June 15, it did so with a couple of sentences.  That allowed Libya skeptics in Congress and elsewhere two full weeks to fill the explanatory vacuum by playing off the plain language, in a “we’re not going to be taken for stupid” mode.

The hole dug in the meantime is just too deep to get out of, not with Senator Corker & Co. firing shots from above.  The result: Congress isn’t going to acquiesce in this one.  Whatever comes out of the Capitol will include some finding that the Libya operation qualifies as “hostilities” for purposes of the WPR.  (The McCain-Kerry Resolution voted out of the SFRC yesterday now includes one, an amendment for which even Senator Kerry was on board.)  That will probably close the door to using the “hostilities” line with respect to future military engagements, at least of this description.

Too bad.  If this gambit had worked, it would have taken a pretty good bite out of the WPR — in my view a good thing.

I’m still having some trouble with a basic question: does anyone think that any President would terminate a military operation he would otherwise continue by virtue of section 5(b)’s 60-day clock in the face of congressional inaction?  If not, what purpose is served by pressing the point?  One expert made the argument to me earlier this week that it deters Presidents from getting into conflicts they don’t think they can get out of within 60 days.  I don’t buy it.  I doubt 5(b) comes up at all in military contingency planning, or even political contingency planning — there are lots of reasons not to get into quagmires, but the WPR isn’t one of them.

At the same time that Koh seemed to be playing up the spirit of the WPR in his live testimony, he also persuasively highlighted how the vision of the 1973 Congress doesn’t really jive with the present day world. (See this from Slate’s William Saletan on Koh’s apparent argument that the WPR doesn’t cover drones.)   And even though Senator Kerry said that the Administration has “affirmed” the constitutionality of the WPR, I think it’s been careful not to concede the point, something brought into relief as President Obama dodged the question at his press conference today.

So the Libya episode just kicks the can down the road again.  We’ll be having the same sort of argument, sooner or later, about why a future Administration is not terminating an operation after 60 days in the absence of congressional authorization.  On balance, I think this hurts Congress more than the executive branch — 5(b)’s toothlessness makes Congress look ineffective and incapable of enforcing laws on the books.  It’ll never get repealed, of course.  It almost makes one want a court to step in, but that’s also unlikely.  I guess the best one can hope for is a whittling away through the practice.

Today: Peter Spiro Testifies before the SFRC on Libya and War Powers

by Duncan Hollis

Just a quick note for folks following the Congressional wrangling over U.S. military activity in Libya and the War Powers Resolution:  later this morning, Opinio Juris‘ own Peter Spiro will be testifying before the Senate Foreign Relations Committee. U.S. State Department Legal Adviser Harold Koh is also set to testify and, presumably, defend the Administration’s position.  Louis Fisher of the Constitution Project rounds out the Senate witness list.  Peter’s already been very outspoken here about the issue (see herehere, and here), so I, for one, am really looking forward to seeing his presentation on a larger stage.

The hearing is set to begin at 10 am EST with Senator John Kerry presiding.  You can watch all the action here.

NMT Book Published!

by Kevin Jon Heller

I am delighted to announce the publication of my book “The Nuremberg Military Tribunals and the Origins of International Criminal Law.”  The book can be ordered from Oxford University Press here; Amazon should have it (at a whopping $8.78 discount) in the next few days.  Here for the last time is the cover:

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Once again, I want to thank all of the Opinio Juris readers who have given me feedback on draft chapters and/or the layout of the book’s cover.  Your contribution to the final product has been immeasurable.  And I want to thank all of the wonderful people at OUP who have made writing, editing, and publishing the book such a pleasure, particularly Merel Alstein, Bethan Cousins, and — first by being last — John Louth.  It’s a special academic press that would offer a contract to a young academic who had never written written anything longer than a 30,000 word law-review article.  (The book is about 175,000.)  I can only hope that I’ve justified their faith.

As always, feedback on the book would be most appreciated.  But please don’t tell me if you find any typos — they will haunt me forever…

The CMCR Invents the “War Crime” of Material Support for Terrorism

by Kevin Jon Heller

Earlier today, the U.S. Court of Military Commission Review (CMCR) held in U.S. v. Hamdan that material support for terrorism is a war crime and thus within the jurisdiction of the military commissions.  The decision represents the apotheosis of the US’s utterly self-referential approach to international law, because the CMCR managed to reach that conclusion without citing a single non-American source for the idea that material support is a war crime, not simply a domestic crime punished by states either of their own initiative or pursuant to suppression conventions.  Indeed, the entire decision rests on a subtle — and fatal — elision of the difference between sources that indicate material support violates the law of nations and sources that indicate material support violates the law of nations regarding war crimes.

What is most distressing is that the CMCR is aware of the difference.  The decision repeatedly acknowledges that the issue in the appeal is not whether the international community considers material support to be criminal, but whether it considers it to be a war crime (emphasis added):

“From the very beginning of its history [the Supreme Court] has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.” Ex parte Quirin, 317 U. S. 1, 27-28 (1942). Like the law of nations, the law of war must adapt to changing circumstances to be effective (p. 16).

Using its authority to define and punish offenses against the law of nations, Congress approves, within constitutional limitations, jurisdiction of military commissions to try persons for offenses against the law of war. Quirin, 317 U.S. at 26-31 (p. 16).

In this case, Congress and the President seek to protect our Nation’s interests in ensuring compliance with the law of war and adherence to the law of nations, including customary international law, through adjudication and punishment of particular crimes against the law of war (p. 20).

We, like the military commission judge, consider international and domestic sources of law for pre-existing examples of criminalization under the law of war of conduct similar to that for which appellant was convicted (p. 34).

This emphasis on whether material support is criminal under “that part of the law of nations which prescribes… for the conduct of war” disappears, however, as soon as the CMCR begins to analyze international sources of law.  The CMCR signals the change in emphasis at the very beginning of its analysis of those sources, when it notes that it has “an independent responsibility to determine whether appellant’s charged conduct existed as well-recognized criminal conduct” (p. 20).  Indeed, the section itself is revealingly — and distressingly — entitled “Criminalization of Analogous Global Conduct.”  Notice what is absent in these new formulations of the issue: any requirement that material support be well-recognized as a war crime.

That is not accidental.  On the contrary, the elision is necessary to permit the CMCR to claim that international conventions and decisions of international tribunals support the idea that material support is a war crime.  Consider the first category of international sources that it cites: international conventions and declarations.  After discussing a number of suppression conventions, such as the International Convention for the Suppression of the Financing of Terrorism, the International Convention for the Suppression of Terrorist Bombings, and the International Convention Against the Taking of Hostages, the CMCR concludes as follows (emphasis added):

Although the approach of various nations towards punishment of terrorism-related offenses varies, prosecution of such offenses has been encouraged by the United Nations Security Council and treaties.  We are satisfied that international conventions and treaties provided an additional basis in international law that appellant’s charged conduct in support of terrorism was internationally condemned and criminal.

Yes — but not as a war crime.  Put aside the fact that, with the exception of the 1999 terrorist financing convention, none of the suppression conventions mentioned by the CMCR deal with anything resembling material support for terrorism, as opposed to terrorism proper.  More important, none of the suppression conventions discussed in the decision address terrorism as a war crime.  Indeed, the purpose of the conventions was precisely to address terrorism outside of armed conflict, where domestic laws and mutual legal-assistance regimes were often inadequate to address terrorist acts.

The next international source is even less helpful: joint criminal enterprise at the ICTY.  According to the CMCR, nothing prevents it from “considering JCE… for purposes of determining whether an appellant’s conduct was prohibited and historically punishable as a law of nations offense” (p. 41).  And lo and behold, it does!

In applying the JCE liability analysis, appellant’s underlying conduct constitutes known, unlawful acts historically punishable and established before 1996 (p. 43).

This is a ridiculous conclusion.  First, JCE requires proof that the defendant entered into an agreement with another person to commit a crime, that the defendant intended to commit the crime, and that the crime was actually committed — three requirements that are strikingly absent from the crime of material support (see pp. 28-29).  Second (and this should go without saying), JCE is a mode of participation, not a “law of nations offense.” Indeed, the CMCR itself acknowledges as much, noting two paragraphs after its statement that it can use JCE to determine whether material support was historically a “law of nations offense” that “JCE doctrine provides a theory of liability for proving a specific crime, and it is not a stand-alone substantive offense” (p. 41).  The CMCR might as well claim — and almost does, when it considers the modes of participation in the Rome Statute (p. 44) — that the existence of aiding-and-abetting in international criminal law supports the existence of material support as a war crime.  After all, the “underlying conduct” in aiding and abetting as a mode of participation is kind of like the “underlying conduct” in the crime of material support.

The CMCR’s discussion of the third international source — “Non-United States Domestic Terrorism Laws” — is no better.  Here we see the elision between material support as a violation of the law of nations and material support as a war crime under the law of nations most clearly, as indicated by the CMCR’s framing of its analysis (emphasis added):

It is the duty of this court to ascertain whether appellant’s conduct, providing material support for terrorism, constituted an offense against the law of nations. In doing so, we apply the definition of terrorism in 2006 M.C.A. § 950v(b)(24)… and we consider the degree to which appellant’s underlying conduct violated international standards defining crimes as shown by various national laws prohibiting terrorism (p. 45).

Notice: crimes, not war crimes.  Thus framed, domestic terrorism laws obviously supports the CMCR’s desired conclusion.  As it notes, many states criminalize terrorism.  Some even criminalized it prior to 1996, when Hamdan’s acts of material support took place.  (Although the decision cites only one state that did, India, and that state’s pre-1996 terrorism laws did not criminalize anything remotely as broad as material support).  None of those statutes, however, deem terrorism — much less material support for terrorism — to be a war crime. So the entire discussion is irrelevant.

The fourth and final international source is perhaps the worst of all: the crime of criminal membership at the International Military Tribunal and the Nuremberg Military Tribunals.  The CMCR cites criminal membership, and convictions for it, in support of its conclusion that there is historical precedent for the “war crime” of material support.  The analogy, however, is fatally flawed. To begin, criminal membership was not a war crime; it was a sui generis independent crime.  More important, though, criminal membership does not bear even a passing resemblance to material support.  First, and most obviously, whereas criminal membership required membership in a criminal organization, material support criminalizes the actions of individuals who are not members of a terrorist group. (See Humanitarian Law Project.)  Second, the crime of criminal membership was purely inchoate; because of the membership requirement, it did not require the defendant to contribute to the criminal organization’s crimes in any way.  Material support, by contrast, is defined by the defendant’s contribution, however slight, to the terrorist group’s crimes.  The only similarity between the two crimes, then, is that they both involve criminal groups.

Properly understood, in short, literally none of the international sources cited by the CMCR provide any support whatsoever for its claim that “[w]hen appellant’s charged offenses began in 1996, the underlying wrongful conduct of providing material support for terrorism, as now defined under the 2006 M.C.A., was a cognizable offense under the law of war” (p. 75).  The only sources to that effect are American ones — and even those are far less helpful than the CMCR assumes.  But that is a subject for a subsequent post.

New Rules for Cyberwar?

by Duncan Hollis

More than a decade ago, the U.S. Defense Department’s Office of General Counsel (DoD OGC) released a detailed analysis of the way international law would operate to guide U.S. military activity in cyberspace.  It was an impressive effort and is still worth reading today despite all the intervening, and dramatic, changes in the technology and the geopolitical landscape.  At the same time, the DoD OGC memo was ultimately an exercise in issue-spotting rather than rule-clarification.  Indeed, as I’ve noted for some time, international law may clearly govern military activities in cyberspace (whether in terms of the jus ad bellum or the jus in bello), but the content of those rules is far from clear; and where there are identifiable rules, they tend to derive from too many overlapping legal regimes while not adequately regulating the very areas (e.g., non-state actor attacks) most in need of regulation.   As a result, cyber-specific rules of international law are clearly needed.

Now, international law can be created through a wide array of pathways.  The most prevalent modern method would be treaty-making.  As a result, the idea of a global treaty on cyberwar has become popular in various quarters, whether in the form of something like the Geneva Conventions, Russian proposals to regulate the proliferation of “cyberweapons,” or the Council of Europe’s efforts to combat cybercrime.  Critics have questioned whether such an effort could succeed (while others continue to insist it is not necessary).

For proponents of international regulation, however, it is important to recognize that international law can come from sources other than treaties; customary international law remains possible, even prevalent, in much of international humanitarian law.  And, custom comes from state practice.  Indeed, it’s worth remembering that much of the modern law of war began with the effort by a single state–the United States–to draft regulations for its armed forces in their conduct of the Civil War with the Confederacy: General Orders No. 100, better known as the Leiber Code for its author, Columbia Professor Francis Leiber.

It’s with the Leiber Code in mind, therefore, that I am interested in seeing the Executive Orders President Obama signed last month, detailing what the U.S. military and intelligence agencies can do in cyberspace. The U.S. government has yet to put out any unclassified versions of its strategy or specific rules in this area.  But, the Wall Street Journal noted last month that the United States will now regard certain cyber-attacks as acts of war.  And, today, the AP is reporting further details.  Here’s the meat of the most recent story:

As an example, the new White House guidelines would allow the military to transmit computer code to another country’s network to test the route and make sure connections work — much like using satellites to take pictures of a location to scout out missile sites or other military capabilities.

The digital code would be passive and could not include a virus or worm that could be triggered to do harm at a later date. But if the U.S. ever got involved in a conflict with that country, the code would have mapped out a path for any offensive cyberattack to take, if approved by the president.

The guidelines also make clear that when under attack, the U.S. can defend itself by blocking cyber
intrusions and taking down servers in another country. And, as in cases of mortar or missile attacks, the U.S. has the right to pursue attackers across national boundaries — even if those are virtual network lines.

Under the new Pentagon guidelines, it would be unacceptable to deliberately route a cyberattack through another country if that nation has not given permission — much like U.S. fighter jets need permission to fly through another nation’s airspace.

Uri Friedman over at the Atlantic Wire distills this to suggest the new Executive Orders will (1) regulate peacetime use of cyberespionage, (2) permit military retaliation to a cyberattack that constitutes an attack, and (3) prohibit deliberate (but not inadvertent) use of neutral networks in military cyberactivites.

I am really interested to see what the White House or the Pentagon papers will actually say about these three points. Working backwards, neutrality is a complicated (and frankly a bit esoteric) area of international humanitarian law in which the United States has already taken contested positions in its global efforts to combat Al Qaeda.  Military retaliation, aka self-defense, is not a terribly controversial idea if in response to something that rises to the level of an armed attack; the trick will be to see if the Pentagon lays out clearly what that threshold will be.

The cyber-espionage point, however, is a bit more difficult than the AP describes it.  It is true that cyberexploitations (where you simply gather unauthorized access to data from another computer system or network) are different than cyberattacks (where you deny, disrupt or degrade the computer system’s integrity, authenticity or availability).  And, it is also true that international law has not prohibited espionage (although virtually every state has criminalized such acts).  The problem is that some States may not be willing to equate the most extreme cyberexploitations with traditional acts of espionage.  The scale of a cyberexploitation can be stunning if it can access all data resident within a military computer network or one, say, that controls a nuclear power plant.  Depending on the target or scale of the exploit, it could compromise a nation’s security in ways that outstrip what human intelligence or satellite imagery has been capable of to date.  As a result, while many states may regard most cyberexploitation as falling within the espionage status quo, I’m not as certain that all cyberexploitations will be regarded that way.

More importantly, while the United States can always say that it is only going to engage in peacetime cyberexploitations as distinct from cyberattacks, it is not clear if other states will accept that distinction.  The reality is that for victims who identify a cyberexploitation, it may not be immediately apparent if the exploit is simply mapping the victim’s system or network, gathering data, or if it is also carrying some more nefarious cyberattack that could cause actual harm to the computer system or any infrastructure it supports.  And if cyberexploitations cannot be distinguished from cyberattacks, that leaves open the risk that a U.S. cyberexploit might be treated as a cyberattack and subject to a military response (which could involve the very acts that the U.S. has suggested would justify military retaliation, and suddenly we’ve escalated the situation into a conflict).  Now, to be clear, I’m not saying that all cyberexploitations can or should be regulated or banned.  I’m just saying that it’s not as easy as the AP suggests for the United States to pursue a “peacetime” cyberexploitation strategy without any fear of unanticipated consequences.  Given the anonymity that currently characterizes most cyberoperations, moreover, there is the added risk of mis-attribution, which only further complicates the picture. That’s why I’m very interested to see what the Pentagon or the White House has to say on these matters.  Hopefully, we’ll get actual text to look at it in the coming days that detail what the United States thinks are the rules for cyberwar.

O’Connell on Defining “Hostilities”

by Roger Alford

My future Notre Dame colleague Mary Ellen O’Connell joins the fray criticizing Harold Koh’s crabbed definition of hostilities. Here’s a taste:

Harold Koh, legal adviser to the U.S. State Department, attempted to convince Congress on June 15 that the “limited nature” of U.S. military operations in Libya are not “hostilities” as envisioned in the War Powers Resolution, and, therefore, required no Congressional authorization.

But the U.S. had better be involved in hostilities or else our forces are engaged in unlawful killing. The U.S. has deployed manned and unmanned aircraft to fire missiles and drop bombs — the type of weapons only permissible for use in armed conflict hostilities.

Most U.S. attacks in Libya today reportedly are being carried out by unmanned Predators. President Obama’s report to Congress, also delivered on June 15, tries to minimize the meaning of using Predators. The report refers to “occasional strikes by unmanned Predator UAVs.” But armed Predators carry two Hellfire missiles.

Missiles and bombs are permissible for use in hostilities because the intensity of fighting supports a presumption that killing without warning or attempt to capture is justified. Moreover, during hostilities, the law tolerates the unintended deaths of civilians as long as the number of those deaths is not disproportionate to the value of the military objective.

I’m curious whether there are any international law scholars publicly defending the Obama Administration’s definition of “hostilities” for purposes of the War Powers Resolution. I haven’t seen any thus far, so any pointers would be much appreciated.

Let’s Not Confuse War Powers with the War Powers Resolution

by Peter Spiro

The controversy over the Administration’s interpretation of the War Powers Resolution has some people conflating that issue with the broader one of when the President can use force without congressional authorization.

This isn’t surprising, since the Administration has used a similar tack in both contexts.  With respect to the War Powers Resolution, the Administration claims the Libya operation does not constitute “hostilities” for purposes of the law.  With respect to the Constitution, it claims that the Libya operation does not qualify as a “war”.  One can be right where the other is not.  It’s too bad that in the popular, even elite, imagination, they are being intertwined.

The constitutional law of war powers can be reduced to three basic propositions:

1.  For minor engagements, measured in terms of resource commitments and risk of casualties, Presidents can go it alone.  This is why the constitutional carping about initiating the Libya operation without congressional authorization had no traction.  OLC’s memo on the question was persuasive.

2.  For major engagements, Presidents must as a constitutional matter have Congress on board from the top.  That’s why both Bush I & II secured congressional authorization before initiating military action in Kuwait and Iraq.  It’s why comparisons between Bush II’s securing advance approval for Iraq and Obama’s failure to do so for Libya are misplaced.  The two episodes are constitutional apples and oranges.

3.  Congress has the power to terminate any particular military engagement.

The War Powers Resolution shouldn’t change any of that.  It doesn’t for instance give Presidents a 60 day window in which to launch major engagements without congressional approval (either Bush could have unilaterally introduced forces into the Persian Gulf consistent with the Resolution, but neither would have passed constitutional muster).  On the other hand, it can’t constrain Presidents to terminate military operations without affirmative congressional action, as the 60-day clock would require.  From a functional perspective, the default termination provision leaves important military decisionmaking intolerably hostage to the probabilities of congressional inaction (Kosovo as exhibit A).

That’s getting lost in the debate over the meaning of “hostilities”.  Even if the Libya operation does qualify as such for purposes of the law, it doesn’t mean that the law is constitutional.  Given the unfavorable response to the statutory argument (for the latest entries, see Bruce Ackerman, Richard Epstein, and Jonathan Schell), perhaps the constitutional defense would have been the better.  It will be tough at this point to retreat to that position, even though the Administration has not expressly conceded the point.

Congress, meanwhile, has the power affirmatively to direct the termination of US participation in the Libya operation, now or at some date certain in the future (as Jack Goldsmith reminds us was done with Lebanon and Somalia).  But the WPR, and the putative failure to comply with it, is essentially irrelevant in that context.  Or so one would hope.

Deadline Extended for Submissions for ASIL 2012 Annual Meeting

by Chris Borgen

If you had been thinking about submitting a paper or a panel proposal for the 2012 Annual Meeting of the American Society of International Law but had missed the deadline, despair not!  The deadline has been extended to this Friday, June 24th.  The webpage for submissions is here. And, in case you hadn’t seen it already, this is the theme statement for next year’s Annual Meeting, which is being chaired by Harlan Cohen, Chiara Giorgetti, and Cymie Payne (and I’m on the Program Committee):

Confronting Complexity

Contemporary reality is confoundingly complex: it is marked by rapidly evolving technologies, increasing global interconnectedness, rising population, and deepening understanding of science and the environment. New international actors; changes in social, economic, and political dynamics; a multipolar power structure; and novel security threats only add to the complexity. Amidst this confusion, international law can be a source of order and clarity. It can provide frameworks to peacefully resolve disputes, regulate relations between different actors, and clarify rights and obligations. It can foster technological development and facilitate exchanges of knowledge and goods. It is no surprise that managing global financial crises, protecting global commons, responding to conflicts spilling across borders, and guaranteeing public health and safety have all been added to international law’s purview. In our crowded, connected world, civil uprisings, financial collapses, natural and human-caused disasters are no longer domestic crises: they are global crises.

While international law has at times been quite creative in response to these problems, whether it is fully up to the task remains an open question. International law can actually exacerbate complexity with conflicting or unclear rules, uncertain enforcement, and overlapping and competing jurisdiction. International law must demonstrate the flexibility to embrace new issues, to look beyond the State, and to integrate new players (who may not follow its rules). Transparency, accountability, and participation must be guaranteed in new private regulatory regimes, shorn from State control. The instruments and processes of international law must provide means for scientific evidence to be sifted, understood, and translated into law. And yet, even as it adapts, international law must also remain a force for stability and predictability.

Which problems is international law particularly well-suited to solve? Which seem to defy its regulation? What tools does international law have to manage this complexity? Where are best practices emerging? What has our profession learned in the last half-century? Is law, with its emphasis on rules and stability, conceptually and functionally capable of responding to the challenges of complexity? If not, how should law react? What do experts from outside the legal profession, from technology, finance, counterinsurgency, climate science, and risk, believe law can add? During the 2012 ASIL Annual Meeting we will address these questions and discuss how international law responds to complexity.

The Contrast Between Libya and the Pre-AUMF “War” with Al-Qaeda

by Kevin Jon Heller

Apologies for the light blogging the past couple of weeks — although the upside is that I am now officially Dr. Heller, having successfully defended my dissertation at Leiden University in the Netherlands a few days ago.  It was an amazing (and amazingly formal) experience, and I’ll blog about it once I get the official photos from the university.

I’ve been following the debate over Libya and the War Powers Resolution (WPR) with great interest the past couple of weeks.  I don’t have anything intelligent to add to that debate, but I have been struck by the contrast between the Obama administration’s view of “hostilities” for purposes of the WPR and its view of “armed conflict” for purposes of the military commissions — particularly with regard to “war crimes” committed prior to the AUMF.  As Jack Goldsmith notes in a superb recent post, the two standards are not only interrelated, the former was intended to be broader than the latter:

[T]he House Report to the WPR says that “hostilities” was a substitute for “armed conflict” under the laws of war and was meant to have a broader meaning.  Some might not think this legislative history is relevant to an interpretation of the statute.  But a 1980 OLC opinion acknowledges without objection that “the word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope.”  The Obama lawyers told Charlie Savage that the 1980 opinion “remained in force.”  This is a large problem for the Administration, because the U.S. component of the Libya operation, considered by itself, is clearly an armed conflict under the laws of war.  That suggests, under the OLC opinion, that it also amounts to hostilities under the WPR.

Notice how the Obama administration is working both sides of the street.  On the one hand, the administration argues that U.S. actions in Libya do not qualify as “hostilities” for purposes of the WPR, because they “do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.”  On the other hand, the administration insists that there was an “armed conflict” between al-Qaeda and the U.S. prior to the AUMF, which is a necessary condition of being able to prosecute al-Nashiri for the bombing of the USS Cole in 2000 and Khalid Sheikh Mohammed for 9/11, because al-Qaeda “declared war” on the U.S. in 1996:

Mr. Nashiri’s case would also test another legal proposition: whether a state of war existed between the United States and Al Qaeda at the time of the Cole bombing — before the Sept. 11 terrorist attacks and the authorization by Congress to use military force against their perpetrators.

The United States initially handled the Cole attack as a peacetime terrorism crime, but the government now contends that a state of armed conflict had legally existed since 1996, when Osama bin Laden declared war against the United States.

According to the Obama administration, therefore, “firing missiles from drones that kill people over an extended period of time pursuant to a U.N.-authorized use of force” (to quote Goldsmith again) does not qualify as hostilities for purposes of the WPR, yet a non-state actor’s decision to “declare war” on the U.S. (a meaningless act under international law) creates an armed conflict for purposes of determining whether particular acts of terrorism are a war crime.  And this even though the concept of “hostilities” is supposed to be broader than the concept of armed conflict.

The contrast is striking — and still more proof that, like its lawless predecessor, the only principle guiding the Obama administration’s approach to national security law is expedience.

Offline in God’s Own Country

by Kenneth Anderson

I’m on vacation in God’s Own Country, the Eastern Sierra Nevada, where I am going almost wholly offline.  One or two vital emails, but basically no blogging, websurfing, mindlessly hitting link buttons.  I’m going to break my addiction to restless, pointless web cruising, and here in the land of perfect light – hiking, biking, a great gym, the Sierra Nevada and the White Inyo Mountains – I have the perfect opportunity.  Call it a dopamine reset.  So, to everyone in the world of international law and international relations – don’t do anything rash while I’m away.  A pretty good rule of thumb is … don’t do anything I wouldn’t do!

Will the Supreme Court Revisit Missouri v. Holland? More Likely as of Yesterday.

by Peter Spiro

The Supreme yesterday gave the green light to an individual asserting a Tenth Amendment defense in a criminal prosecution under a federal statute enacted pursuant to the Chemical Weapons Convention (Bond v. United States).  The facts of the case are certainly more lurid than our run-of-the-mine foreign relations law cases.  The basic claim:  the Treaty Power doesn’t add anything to other congressional authorities under the Constitution.

That’s taking Missouri v. Holland head on, something that hasn’t happened since the case was decided in 1920.  There haven’t been any subsequent challenges not only because almost all federal legislation has been enabled by other clauses (the Commerce Clause most notably, of course), but also because Congress hasn’t treated the Treaty Power as adding anything to its quiver (see, for instance, the practice with the human rights conventions).

So what’s the betting?  Assuming it gets to the question, I think there’s a pretty good chance the Court overrules Missouri, as part of its federalism agenda and on the theory that these days the Treaty Power would know no limit (with the Offenses Clause as a wild card).  Would this be the end of the world as we know it?  I don’t really think so, although it would obviously create some additional obstacles to incorporation/execution in particular cases.  Two things to keep in mind:  First, the state are often pretty cooperative in adopting various international standards (see for example Julian Ku’s important piece on the subject).  Second, it’s not as if Washington is imposing many international obligations on the states even with Holland on the books.

If nothing else, a new decision could give Peggy an excuse to reprise the fabulous conference she put on at Mizzou in 2008!

Torture by Non-State Actors Not Actionable Under ATS

by Roger Alford

The D.C. Circuit held this week that torture by non-state actors was not actionable under the Alien Tort Statute. The case, Ali Shafi v. Palestinian Authority, arose from the alleged torture in the West Bank by the Palestinian Authority and the PLO of a Palestinian national who was an Israeli spy.

The Shafis argue that “the [Palestinian Authority’s] conduct violated universally recognized and applicable norms of international customary law prohibiting torture by a public official .” App. Br. 22. That argument cannot prevail. Appellants are advancing a theory that nonstate actors can nonetheless be public officials. We need not decide whether that is a possibility, as there is clearly no sufficiently universal norm of international law supporting such a concept to support the creation of an ATS cause of action for torture against a nonstate actor, even if that actor falls into the appellants’ proposed expanded category of “public official.”

The Court recognized the some actions by non-state actors could be actionable, such as piracy and infringements of rights of ambassadors. It also seemed to accept Kadic v. Karadzic’s rationale that genocide by a non-state actor could be actionable. Nonetheless, the Court held that “in 2011 it remains the case that appellants have shown us no such consensus. The complaint does not state a claim cognizable within the jurisdictional grant of the Alien Tort Statute.”

The Safis argued that Common Article 3 of the Geneva Conventions provided the requisite consensus, but the Court rejected that argument, finding that the status of the PLO and the nature of Israeli relations with the Palestinian territory are subjects of continuing debate. In other words, the Court was unwilling to conclude that the alleged torture occurred in the context of an armed conflict such that Common Article 3 applied and could serve as the basis for the requisite international consensus required under Sosa. (This, in my view, is the weakest part of the decision).

The Court also upheld the district court’s decision to dimiss the pendant tort claim raised under Israeli Law, finding that 28 U.S.C. 1367(c) gave it permission to do so.

One of the more interesting parts of the opinion came from Senior Judge Stephen Williams. In his concurring opinion, Judge Williams tried to limit the scope of actionable claims against non-state actors to claims that raise concerns of state sovereignty:

“It seems to me that the unifying feature of the three offenses is that their punishment protects and facilitates the system of international relations arising out of the Westphalian view of national sovereignty, particularly with respect to the avoidance and termination of war. Piracy involves a rejection of the Westphalian system itself—pirates remove them-selves from the national building blocks of interna-tional society (and hence are enemies of all mankind). … As to cases against foreigners, violations of the law of nations would be actionable under the ATS if they matched piracy as an affront to Westphalian sovereignty itself, or if the foreign perpetrator were linked to the United States by residence or by some other feature such that American disregard of the offense might cause serious blame to fall on the United States.”

Curiously, Senior Judge Williams failed to apply his analysis to the question at hand: whether a Palestinian who is serving as an Israeli spy and is tortured by the Palestinian Authority because he is a spy in any way implicates the Westphalian system such that his claim should be actionable.

The slow, quiet demise of the ATS continues. Without further support from the Supreme Court, it appears that the statute is in free fall.

Latest on War Powers and Libya: Resurrecting the WPR? (Probably Not)

by Peter Spiro

Here is the Administration’s legal analysis (in full) of why the 60/90-day clock of the War Powers Resolution doesn’t apply to the continuing Libya operation:

The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.

More background from Charlie Savage here.

From a tactical perspective, this may be the wisest course.  The other options were: 1) remain silent on how/whether the War Powers Act does or does not constrain the Libya operation — which has been the Administration’s approach to date — or 2) make a broader claim that the Act’s termination provision is unconstitutional.  The first may have been unsustainable as Congress ramped up its criticism of the operation and used putative noncompliance with the WPR as a battering ram.  I wonder if there was any consideration of the second — on the merits it may be the stronger argument –, but it’s easy to see why it would be rejected: institutionally too confrontational and also likely to draw heavy fire from the already unhappy Left.

The Administration’s more minimalist approach nonetheless marks an important juncture in war powers practice.  We could go either of two ways from here. If there are some operations that comprise “hostilities” for purposes of the WPR but wouldn’t count as “war” for constitutional purposes, the Administration’s approach is problematic from an executive power perspective.  Is there a concession of constitutionality?  (Harold Koh: “We are not saying that the [WPR] is unconstitutional” – not quite the same thing as saying “we think it’s constitutional,” but getting there.)  Would there be cases in which the WPR might affect military decisionmaking — hostilities which are terminated or downgraded which but for the WPR would otherwise continue?

On the other hand, this could be yet another nail in the WPR’s coffin.  If “hostilities” are defined so as to include only really serious military engagements — ones that require advance congressional authorization as a constitutional matter in any case — then the WPR remains superfluous.

One way to think about it: how does the Administration’s approach retrofit onto the Kosovo campaign.  Assume no congressional funding there that could (and was claimed to) constitute specific authorization.  Would that operation comprise “hostilities” under the Act under Obama’s definition above?  Probably not.  Can we imagine some other presidentially initiated engagement which is constrained under this approach?  I’m not sure we can.  Which may be another way of saying that the Resolution is still dead after all.

Update: Jack Goldsmith has a detailed critique of this latest move here.

Update: I’m starting to wonder if the “hostilities” argument might actually be drawing more fire than a claim of unconstitutionality — see Stephen Walt here, for example.

DOD or CIA in Yemen?

by Kenneth Anderson

The Wall Street Journal national security reporting team, followed closely by the Washington Post and the AP, have been reporting in the last couple of days on the CIA being tasked to carry out an expanded Predator drone targeted killing program in Yemen.  I’ve been meaning to blog on this, following on Deborah’s post below discussing the AP story, but meanwhile Robert Chesney poses the following question over at the Lawfare blog (where you can find links to these articles and an expanded discussion):

[W]hat really struck me about the stories was their common reference to a particular legal argument.  Here is Siobhan Gorman and Adam Entous in the Wall Street Journal:

The U.S. military strikes have been conducted with the permission of the Yemeni government. The CIA operates under different legal restrictions, giving the administration a freer hand to carry out strikes even if Yemeni President Ali Abdullah Saleh, now receiving medical treatment in Saudi Arabia, reverses his past approval of military strikes or cedes power to a government opposed to them.

And here’s Greg Miller in the Washington Post:

Because it operates under different legal authorities than the military, the CIA may have greater latitude to carry out strikes if the political climate shifts in Yemen and cooperation with American forces is diminished or cut off.

And here’s Mark Mazzetti in the N.Y. Times:

By putting the operations under C.I.A. control, they could be carried out as a “covert action,” which can be undertaken without the support of the host government.

The common theme is that the CIA can conduct strikes contrary to or at least absent Yemen’s permission, whereas JSOC cannot.  I can imagine any number of policy reasons why this might be so, why it might be the preferred course.  But in each piece the claim is that this is a matter of legal obligation, not just policy preference.

And so here is my question for readers: What is the nature of the legal obligation supposedly at work here?Obviously covert action does not require host-nation consent.  That’s not the curious part here.  The curious part is the suggestion that DOD activity does require host nation consent as a matter of law.  What law so requires?

The thing that jumps out as potentially relevant here is that, absent host nation consent, a use of force on that state’s territory presumptively violates its sovereignty under UN Charter Article 2(4).  So perhaps the idea is that this is ok for the CIA to do via a covert action, but not ok for DOD to do.  But is this really a dispositive concern here?  Article 2(4) is not ironclad.  An objection from Yemen under Article 2(4) would fail in the face of a U.S. Article 51 self-defense claim insofar as Yemen is unable or unwilling to use its authority to address the threat posed by AQAP itself.  So long as one accepts that such unable/unwilling arguments can be made, the Yemen scenario seems like a very plausible place to invoke it.  If that’s right, then DOD would not face an Article 2(4) hurdle in acting without Yemen’s consent.

Could it be that there are facts available internally that make the unable/unwilling argument implausible as to Yemen after all?  I’m skeptical.  Could it be instead that someone has concluded that DOD in particular simply may not avail itself of the unable/unwilling argument, as a matter of law?  I’m not aware of such a law.  Might it all merely reflect a high level of discomfort with the unwilling-and-unable test as a legitimate concept?  Is it about something else entirely? Or is it all just a question of policy preference, not properly described as a legal distinction after all?  Reader input is most welcome, whether you actually know or are just guessing!

Before turning to the legal question, let me say first that one of the most important features of the WSJ and WaPo reporting was the observation that apparently one of the reasons the CIA was being tasked with the mission was because of its experience in Pakistan not merely in running drones — which, after all, are often actually piloted by USAF — but rather in the utterly crucial intelligence-gathering operations on the ground that make possible what the drones do with missiles.  The success of the drone program in counterterrorism operations in Pakistan has come about, so I have been told, on account of the CIA managing over the past several years to set up its own ground-level intelligence gathering operations in both Afghanistan and Pakistan — independent of Pakistan’s ISI.  That independence has been crucial, for obvious reasons (to readers of The Onion, anyway) and apparently that ability to independently determine targets, not just independently strike at them, has greatly irritated Pakistan’s military.

This illustrates a crucial feature about targeted killing through drone warfare or, for that matter, using human teams.  It is not solely a technology, the technology of drones, but instead equally or more dependent on an extraordinary intelligence effort at the ground level in order to identify targets.  Drones, in their surveillance role, can be useful, but nothing substitutes for the ground level intelligence network.  In that sense, the fear that critics sometimes have (that drones are a kind of weird mixture of globally ubiquitous surveillance-and-attack system that can strike anywhere around the world and at the same time a kind of flock of Predator ronin, restlessly seeking out targets anywhere, Paris France or Paris Texas) of the technology is misplaced, as I have written in this draft essay on SSRN.  Drone warfare as a technology of targeted killing in counterterrorism is global in the sense that the drones can be piloted globally — but the most important intelligence is local and ground-level.  If they are to be truly useful as targeted killing platforms, they must be tethered to local intelligence-gathering.

But now a brief thought on Bobby’s question.  I wonder whether the journalists here actually do mean a truly legal distinction, as distinguished from an operational policy position that is being expressed as an internal legal policy position.  I mean by that, an alterable and not necessarily absolutely held interpretation of an internal legal position, including interpretations of existing regulations and executive orders, within the intelligence community.  That would not put it into “law” in the sense of deep interpretations of the UN Charter or international self-defense, etc.  The legal positions might simply be existing secret executive branch legal opinions, whether of the Office of Legal Counsel or others, concerning existing executive branch legal policies.

That is, I find it hard to imagine that there is a difference of opinion between DOD and CIA on the scope of what the President can order in the way of action by one agency or the other with regards to whether Yemen is unwilling or unable to prevent the use of its territory by non-state actor terrorist groups.  That has been US government policy stretching at least back to the Reagan administration.  I would find it hard to imagine that there could be a legal view that it is lawful for the President to order the CIA to engage in armed covert action in Yemen without its consent — but that this would be a problem for the US armed forces.  Among other things, why have a military if not to at times engage in military action on the territory of another sovereign without its consent?  And as to attacking non-state actors, we’ve been doing that for a long time, in multiple places, including using DOD, so I can’t really believe that is at issue.

So my outsider’s guess is that this has nothing to do with international law jus ad bellum or even domestic law as such, and is more likely that there is a division of labor being established around operational capabilities.  Those include, as the articles mention, the view that the CIA is better equipped to set up a program integrated with ground level intelligence gathering crucial for success.  The legal aspect of this, I would guess, would be in some set of secret executive orders (the so-called “exords”) directed to DOD that are both “law” in the sense that these are legally binding and limiting instructions, but more in line with operational orders, revisable by the President and not “law” in the sense of international law on consent.

I would guess, as well, that part of the issue here does indeed lie with “covert” as distinguished from “clandestine.” Meaning, I would guess that a reason why the CIA is being tasked with this is partly in order to set up a genuinely covert intelligence gathering operation on the ground, in which the agents are covert and deniable should the US government wish to treat it that way.  DOD personnel, by contrast, including special ops teams, might operate clandestinely — but if taken prisoner, will be acknowledged by the US government.  I would guess, purely as an outsider, that the nature of the intelligence-gathering contemplates the former rather than the latter, and that this is a legal issue within the executive branch.

Finally, however, looking forward.  I think this new operation, following on the Pakistan operations, raises an important question as to whether we need a conceptually new category in US domestic law — a new legal category in Title 50 of “deniable” alongside the existing category of (genuinely) “covert.”  (I’ll be speaking tomorrow at a UVA National Security Law Program conference on this topic, and it’s one I plan to raise with experts there.)

New AUMF in the Senate

by Deborah Pearlstein

Some of you will recall the series of posts a few weeks back about the new authorization for use of military force (AUMF) legislation that the House of Representatives debated and passed at the end of May. Among other things, the bill would prohibit the use of Defense Department funds to transfer Guantanamo detainees to the United States for criminal prosecution, and also seemingly extend and/or expand the President’s authority to use force against terrorist suspects worldwide. I argued here, here and here that the legislation was ill-advised and praised the Obama Administration for threatening to veto it.

This week, the Senate Armed Services Committee takes up the debate, and a colleague has passed along a briefing paper that the Administration is circulating on the Hill detailing its position. I’m still figuring out how to post a PDF, but in brief, the 7-pager explains in even clearer terms than earlier statements in response to the House bill why the Administration opposes the measure. On the idea of a new AUMF, the paper raises both sound legal and policy objections. The relevant section follows.

“The President has the authorities he needs to capture and detain supporters and members of al-Qa’ida, the Taliban, and associated or affiliated forces. Legislative efforts to update these authorities, however well intentioned they may be, would change horses midstream with no discernible benefits, and would risk both inviting waves of new litigation and sending mixed messages. Over the course of nearly a decade of policy development and litigation, the Executive Branch has used the 2001 AUMF to provide the legal basis for using necessary and appropriate force, including detention, against al-Qa’ida, the Taliban, and associated forces. The Administration has zealously and effectively pursued the enemy under this existing authority, and has successfully defended its authority to detain in the federal courts. Now is not the right time to reconfigure a legal framework which, generally speaking, has been approved by the judiciary.

The proposed language does not simply confirm the President’s existing authorities based on the 2001 AUMF. Rather, it seeks to update those authorities, and could be interpreted by the courts as an effort to override current relevant domestic and international law. For example, language that extends detention authority to all persons who had been members or supporters of an enemy force at some point in the potentially distant past before the commencement of armed conflict, or in cases where the individual has demonstrably left the group in question prior to capture, is out of line with judicial decisions as well as the laws of war. Moreover, bills that introduce new terms like ‘affiliates,’ without definition, raise unnecessary ambiguities and expose the United States to the charge that its critical national security designations are not meaningfully governed by the rule of law. Thus, the proposed language could unsettle rather than clarify the law.

Revising the AUMF also threatens to place foreign policy and national security goals at risk. By ‘updating’ the 2001 AUMF, the legislation could encourage the view – held rightly or wrongly – that the United States is seeking to expand the scope of the armed conflict, make that conflict permanent, and/or claim authorities unknown to international law. Moreover, many international observers will wonder why the United States has chosen this time to reaffirm a state of armed conflict with the Taliban, given efforts to promote transition and reconciliation in Afghanistan.”

Drones and Targeting

by Deborah Pearlstein

For those who follow these topics, two items of note. First, an AP story today reports that the United States is building a secret CIA air base in the Persian Gulf region to support U.S. targeting operations in Yemen. The story is sourced to anonymous government officials, and reports that “U.S. forces have stepped up their targeting as well, because of the besieged Yemeni government’s new willingness to allow U.S. forces to use all tools available — from armed drones to war planes — against al-Qaida as a way to stay in power, the U.S. officials said.” Coupled with the debate this week in the Senate about whether to sign off on a bill giving the President wider authority to use force against Al Qaeda and associated groups (more on which here, here, and here), this is significant news. I’m surprised not to have seen it picked up more yet.

Second, and certainly timely, the Cato Institute has a set of essays up by John Dehn and others looking at the legality of targeted killing. The lead essay by Ryan Alford focuses on Anglo-American constitutional principles against the killing of a citizen or subject without judicial authorization. Check them out here.

Proposed Legislation Seeks VCCR Compliance by the United States

by Duncan Hollis

Those who have followed the cases relating to the Vienna Convention on Consular Relations (VCCR) here in the United States and at the ICJ know that the United States has a compliance problem. The United States does not provide the ‘judicial review and reconsideration’ remedy that the ICJ has indicated is required in the event a violation of an individual’s rights under Article 36 of the VCCR, and the Supreme Court has indicated that the President alone cannot order U.S. states to provide those remedies.  Since 2008, many commentators have suggested that the solution to this problem lies with Congress. Earlier attempts to enact legislation authorizing the necessary procedural steps to put the United States in compliance have fallen short.  Senator Patrick Leahy, however, is ready to try again in light of a pending execution of a Mexican national in Texas (apparently scheduled for July 7), which also seems certain to revive international attention to this issue.

Today, Leahy introduced the Consular Notification Compliance Act (for the text see here), which will give U.S. federal courts jurisdiction to provide the ICJ-dictated remedy. Here’s the quick take from Senator Leahy’s press release:

The Leahy-authored Consular Notification Compliance Act will give jurisdiction to federal courts to review the cases of foreign nationals currently on death row in the United States who did not receive consular access as required by the VCCR. It includes those individuals covered by a 2004 decision by the International Court of Justice, which held that the U.S. must review the convictions and death sentences of more than 50 Mexican nationals who had not been notified of their right to consular access. The legislation would also clarify for future cases that courts must ensure that all foreign nationals charged with a capital offense are informed of their right to contact their consulate. More than 100 foreign nationals from more than 30 countries are currently on death row in the United States.

And here’s what Senator Leahy had to say in longer remarks introducing his bill:

Each year, thousands of Americans are arrested and imprisoned when they are in foreign countries studying, working, serving the military, or traveling. From the moment they are detained, their safety and well-being depends, often entirely, on the ability of United States consular officials to meet with them, monitor their treatment, help them obtain legal assistance, and connect them to family back home. That access is protected by the consular notification provisions of the VCCR, but it only functions effectively if every country meets its obligations under the treaty – including the United States.

Unfortunately, in some instances, the United States has not been meeting those obligations. There are currently more than 100 foreign nationals on death row in the United States, most of whom were never told of their right to contact their consulate and their consulate was never notified of their arrest, trial, conviction, or sentence. There are many other foreigners in U.S. prisons awaiting trial for non-capital crimes, some facing life sentences, who were similarly denied consular access. This failure to comply with our treaty obligations undercuts our ability to protect Americans abroad and deeply damages our image as a country that abides by its promises and the rule of law. It would also be completely unacceptable to us if our citizens were treated in this manner.

The Consular Notification Compliance Act seeks to bring the United States one step closer to compliance with the convention. It is not perfect. It focuses only on the most serious cases – those involving the death penalty – but it is a significant step in the right direction and we need to work together to pass it quickly. Texas is posed to execute the next foreign national affected by this failure to comply with the treaty on July 7, 2011. He was not notified of his right to consular assistance, and the Government of Mexico has expressed grave concerns about the case. We do not want this execution to be interpreted as a sign that the United States does not take its treaty obligations seriously. That message puts American lives at risk.

The Government of Great Britain has expressed similar concerns about a case involving a British citizen facing the death penalty here, who was denied consular access.

The bill I am introducing would allow foreign nationals who have been convicted and sentenced to death to ask a court to review their cases and determine if the failure to provide consular notification led to an unfair conviction or sentence.

The bill also recognizes that law enforcement and the courts must do a better job in the future to promptly notify individuals of their right to consular assistance so the United States does not find itself in this precarious position again. To that end, the bill reaffirms that the obligations under the treaty are Federal law and apply to all foreign nationals arrested or detained in the United States. For individuals arrested on charges that carry a possible punishment of death, the bill ensures adequate opportunity for consular assistance before a trial begins. . . . .

I saw the need to resolve this issue first-hand this spring when a young, innocent Vermont college student was detained by Syrian police simply for taking photos of a demonstration. I worked hard with the U.S. consulate in Syria to obtain access to him. His safety depended on the ability of our consular officers to see him, provide assistance, and monitor his condition.

Similarly, the United States invoked the VCCR to seek access to the three American hikers detained in Iran after accidently crossing an unmarked boarder in 2009. In 2001, when a U.S. Navy surveillance plane made an emergency landing in Chinese territory, the State Department cited the VCCR in demanding immediate access to the plane’s crew. . . .

This bill has the support of the Obama administration, including the Department of Justice, the Department of Defense, the Department of Homeland Security, and the Department of State. I have heard from retired members of the military urging passage of the bill to protect servicemen and women and their families overseas, and from former diplomats of both political parties who know that compliance with our treaty obligations is critical for America’s national security and commercial interests. I ask unanimous consent to include those letters in the Record, as well as a recent public letter signed by retired judges and prosecutors from around the country urging the Governor of Texas to delay the upcoming execution to allow Congress time to act.

In short, it sure looks like the consular stuff is coming back (especially with a July 7, 2011 execution date).  As a result, Leahy’s bill and the potential for a new round of executions will bear watching.

Third Biennial Conference of Asian Society of International Law to be Held in Beijing

by Chris Borgen

Passed along by Tony Anghie:

The Asian Society of International Law will be holding its Third Biennial Conference in Beijing, China, on August 27th and 28th. The topics that will be addressed include human rights, international economic law and private international law, the law of the sea, climate change, disaster management, and the international law relating to security and conflict. A panel will also be devoted to the crucial issue of the teaching and dissemination of international law in Asia. The conference will explore Asian state practice, regional developments, Asian traditions of international law, and the ways in which Asian societies are attempting to formulate and adapt international law to meet their needs and their emerging economies. At the same time, the conference will examine developments in international law more broadly. Both Asian and international perspectives on the selected topics will be explored. The speakers at the Conference will include promising and talented younger scholars and eminent international lawyers from around the world, including scholars, government officials, representatives from international organizations, and private practitioners. Further details regarding the Conference are available at the Asian Society web site: and the Conference web-site

ILC Adopts Articles on the Responsibility of International Organizations

by Kristen Boon

The International Law Commission (ILC) has adopted the Draft Articles on the Responsibility of International Organizations (RIO). The final version of the articles is available on the ILC’s website. As the Chairman of the Drafting Committee noted, the adoption of these articles marks a historic occasion as the ILC has been working on the law of responsibility for over 60 years.The ILC is expected to adopt the commentaries to the Articles in August, 2011. Both the text and commentaries will be sent to the GA in October 2011 for action.

Skeptics of the ILC’s project will quickly see that the final version of the RIO articles is similar to the version released after the ILC’s first reading in 2010. Indeed, the structure, coverage and ultimately the implications of the Draft Articles remain largely unchanged. For an analysis of the criticisms and the implications of the Draft Articles, see my YJIL on-line article here.

The ILC’s decision to stay the course will no doubt be of concern to the many IOs that have expressed displeasure with earlier versions of the Articles. At this juncture, IOs are left with few options: (i) they could contract around the draft articles and take advantage of the provision on lex specialis, allowing their rules to take precedence over the residual rules of responsibility; (ii) they might make use of the many critical IO comments submitted to the ILC to argue that the Articles are not binding (as customary law), or (iii) they could try to lobby States to speak out against the Draft Articles before they get to the GA. If a treaty were being proposed, IOs might have been able to control the application of the Articles by proposing a special sign-on process, as they did with the Treaty on Privileges and Immunities of 1946. As it stands now, no treaty is on the books, and hence no such option is available to them.

For those who have been following the maturation of the Draft Articles, there are some developments of note in this final version. First, the Articles now include this definition of organ: “any person or entity which has that status in accordance with the rules of the organization.”   The definition of Agent changed slightly, and now reads: “an official or other person or entity, other than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts.” This more expansive definition brings it in line with the approach of the ICJ in the Advisory Opinion on Reparation for Injuries. Second, a new Article 5 establishes that “the characterization of an act of an international organization as internationally wrongful is governed by international law.” This provision was added to clarify that international law determines whether an act of an IO is wrongful or not. Prior versions were ambiguous as to the role of the “rules of the organization” in determining wrongfulness. Article 17 has been restructured.  This interesting article lays the basis for responsibility of IOs that either adopt binding decisions or non-binding authorizations on member states or other IOs.  The inclusion of “authorizations” is significant, as it shows how states that operate through IOs may become indirectly responsible for the acts of an IO. Finally, more detailed criteria have been added to the countermeasures regime in Articles 22 and 52, 53 & 57.

The implications of the Draft Articles are not to be underestimated.  They will affect states operating through IOs, as well as IOs directly.  Although they don’t create a forum to sue IOs, or even a way to work around the extensive privileges and immunities of IOs, they do set new baselines with regards to the consequences of wrongful actions, including the rules of attribution and the standard for reparations (“full” reparations in the words of the Draft Articles). Like the State Responsibility articles before them however, only states and IO have the right of invocation under Article 43. The extension of responsibility to IOs might be seen as a step in the right direction in the broader movement of “accountability”, but the fact that individuals are subordinated to a system limited to states and IOs dates (and limits) them considerably.

You Can Have a Welfare State, or You Can Have Open Borders, But …

by Kenneth Anderson

Christopher Caldwell does not quote Milton Friedman’s famous observation in this New York Times opinion piece, but it underlies it.  Caldwell is a senior editor of the Weekly Standard and columnist for the Financial Times — as well as being the author of the most important book on Europe by an American that I’ve read in years, Reflections on the Revolution in Europe.  This opinion piece addresses the same general concern as that book, updated to today: immigration and borders in Europe.  In many ways, after all, at least alongside the sovereign debt crisis in Europe is the startling re-introduction of border controls in Continental Europe, and a call by Sarkozy and Berlusconi for a revision of the famous Schengen agreement removing border controls among twenty-two European states (not including the UK and Ireland).

The present crisis started when refugees began fleeing Tunisia by boat in the wake of January’s revolution. Italy was a natural destination: its island of Lampedusa lies south of Tunis and just 70 miles off the African coast. These refugees were joined by others from Libya, and by late May almost 40,000 had arrived. Under ordinary circumstances, if you make it to Lampedusa, you can get to Paris or Berlin with few questions asked.

The Schengen agreements, signed in 1985 and 1990, permit passport-free travel within 22 continental countries of the European Union (Britain and Ireland are among the exceptions), as well as non-Union signatories. Along with the euro, Schengen is Europe’s symbol, a milestone in its integration — on a continent long hemmed in by nationalism and bureaucracy, an Italian can travel to Paris without showing papers or changing money. And it’s growing: the European Parliament this week voted overwhelmingly to recommend extending Schengen to the European Union’s two newest members, Bulgaria and Romania.

The union’s treaties assume that whatever country receives migrants will also process their asylum applications and look after the migrants during the adjudication of their status. But Italian bureaucrats are overwhelmed by the tens of thousands of applicants, and the Italian public, like most of the rest of Europe, does not like mass migration.

With the slyness that is his political calling card, Silvio Berlusconi, the Italian prime minister, issued six-month residency permits to 8,000 of the newcomers this spring, allowing them free movement within the European Union. The Tunisians, who are largely Francophone, then headed for France, turning Mr. Berlusconi’s political problem into that of the French president, Nicolas Sarkozy. In April Mr. Sarkozy shocked European leaders by re-establishing Franco-Italian border controls for several hours. Under Schengen, countries may re-man their borders only if there is a “grave threat to public order or internal security” — say, soccer hooligans. But Mr. Sarkozy and Mr. Berlusconi recently wrote a joint letter that called for putting the agreements on hold in case of a big refugee influx.

Gates on the Dimming Future of NATO

by Kenneth Anderson

Out-going Defense Secretary Gates has been delivering a series of farewell speeches that are noteworthy for their bluntness.  His latest is perhaps the bluntest yet – on the future of the NATO alliance, which he sees as grim.  The New York Times reports here; the Wall Street Journal has an editorial comment here.  At one level, the problem is simply money and resources, and the ever growing disparity between what the US provides and what the rest don’t. From the Times:

Perhaps most significantly, Mr. Gates issued a dire warning that the United States, the traditional leader and bankroller of the alliance, is exhausted by a decade of war and and its own mounting budget deficits, and simply may not see NATO as worth supporting any longer.

“The blunt reality is that there will be dwindling appetite and patience in the U.S. Congress – and in the American body politic writ large – to expend increasingly precious funds on behalf of nations that are apparently unwilling to devote the necessary resources or make the necessary changes to be serious and capable partners in their own defense,” Mr. Gates said.

Mr. Gates complained of what he called a “two-tiered” membership structure, “between those willing and able to pay the price and bear the burdens of commitments, and those who enjoy the benefits of NATO membership but don’t want to share the risks and the costs.” He added that some NATO partners are “apparently willing and eager for American taxpayers to assume the growing security burden left by reductions in European defense budgets.”

The broader issue is that nations commit major resources on the basis of their interests, and the non-US NATO countries do not see the threat.  As Gates notes, the disparities are on display in the Libya war:

The defense secretary was even harsher in his critique of NATO’s command of the Libya operation. After an initial bombing campaign run by the Americans, the alliance took over the air war and Mr. Gates warned that NATO may not be up to the task.

“The mightiest military alliance in history is only 11 weeks into an operation against a poorly armed regime in a sparsely populated country – yet many allies are beginning to run short of munitions, requiring the U.S., once more, to make up the difference,” Mr. Gates said.

While the Libya war was unanimously endorsed by NATO nations, less than half are participating, and less than a third are carrying out strike missions.

“Frankly, many of those allies sitting on the sidelines do so not because they do not want to participate, but simply because they can’t,” Mr. Gates said. “The military capabilities simply aren’t there.”

The Libya operation has proven the alliance is desperately short of intelligence, surveillance and reconnaissance aircraft, as well as aerial refueling planes – all are crucial to modern combat. The United States still is supplying the largest share of all of those to the NATO effort, even thought it pulled most of its strike aircraft out of the operation.

Predator Drone Faces Court-Martial

by Kenneth Anderson

The Predator has asked that OJ’s own KJH serve as its defense lawyer in the ICC.  Joke!!  But here, from The Onion:

Predator Drone Court-Martialed For Afghani Civilian Deaths

Scott Horton’s Six Questions for Laura Dickinson

by Chris Borgen

Over at the Harper’s Magazine site Scott Horton interviews Laura Dickinson about her new book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Horton begins:

Waging war and engaging in diplomacy would generally be reckoned among the most important powers of any sovereign. Yet as Laura Dickinson argues in her new book, Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs, America has been delegating these responsibilities to private companies over the past decade, and offering them lucrative contracts in exchange. Dickinson argues that this practice poses a threat to core public values of human rights, democratic accountability, and transparency.

The discussion ranges over topics including the relationship of neoconservative ideology to private military contractor (PMC) impunity, the immunity claims of PMC’s, why JAGs should be given more authority over PMC’s, and Blackwater founder Erik Prince’s new venture raising a mercenary army for the United Arab Emirates, and other important and timely issues.The relationship of international law to PMC’s has been one of Laura’s areas of expertise for a number of years (see, for example, this relatively recent article and, given Erik Prince’s latest shenanigans, it is good to see not only her new book but a wide-ranging interview at Harper’s.

Did You Hear? But for the ICC, the War in Libya Would Be Over

by Kevin Jon Heller

This according to the Washington Post‘s Jackson Diehl, in Screed Number 1345 about how the evil ICC is preventing peace on earth and goodwill toward men:

Libyans are stuck in a civil war in large part because of Gaddafi’s international prosecution.

Diehl, of course, offers precisely zero evidence in defence of this ridiculously stupid thesis.  Even better, his own column refutes the idea that the possibility of prosecution prevents dictators from stepping down, given that he devotes one paragraph of the column to criticizing Egypt’s plans to prosecute Mubarak for his crimes against the Egyptian people.  Shouldn’t the threat of prosecution have given Mubarak an incentive to fight to the death?  Why would he ever have stepped down if he knew he might face the death penalty?  Was he really so stupid that he believed a new regime would never prosecute him?

Or is it that the threat of prosecution actually plays almost no role in a dictator’s decision to give up power?

I don’t expect very much from the Washington Post.  But I do expect better from David Bosco at the Multilateralist, who unfortunately drinks a bit too much of Diehl’s kool-aid:

Diehl’s broad argument in favor of impunity and exile has all sorts of holes, but he may be right that, in this case, the ICC has created perverse incentives. Qaddafi may have clung to power with or without the threat of a trial in The Hague, but that prospect no doubt makes leaving power that much less attractive. It’s also hard to make the case that the threat of ICC indictment has deterred Qaddafi and his commanders from committing atrocities (though I suppose one could contend that the fighting would have been even more brutal absent the prying eye of The Hague).

It’s a bit disconcerting that international-justice advocates rarely acknowledge the possible downsides to international judicial intervention or grapple with the evidence that cuts against their predictions. In sectors of the human rights community, there’s a messianic faith in the value of international justice. And that’s fine if the argument is essentially one based on principle: Justice is right; impunity is wrong; consequences be damned. But the justice movement makes the argument both on principled grounds and on consequentialist grounds. It has an obligation to honestly confront some of the possible negative consequences.

Note the disconnect between Bosco’s claims and his challenge to international-justice advocates.  He faults such advocates for failing to “grapple with the evidence that cuts against their predictions” — but, like Diehl, he offers no such evidence, just speculation about the ICC making it “much less attractive” for Gaddafi to step down and about other — unnamed — “possible negative consequences” of international criminal justice.  At the same time, Bosco is perfectly happy himself to avoid grappling with possible positive consequences, such as his own possibility that the fighting would have been worse in Libya but for the ICC investigation.

I have no idea whether Gaddafi’s atrocities would be worse without the ICC.  But I do know that the ICC’s investigation has had some actual positive consequences, in contrast to Bosco’s possible negative ones.  I’ll give Juan Cole the last word:

Libyan Oil Minister Shukri Ghanem has defected from the Qaddafi regime and fled to Tunisia.

This defection is a big deal. Ghanem had been at OPEC when Libya was under economic sanctions, and his return to Libya as prime minister and head of the ruling party in 2003 was intended to signal Muammar Qaddafi’s return to respectability in the international community. Ghanem became the face of the reformed Libya, which had given up its dabbling in chemical and other weapons and was willing to privatize its state sector industries and do big deals with Western oil companies. He staunchly defended Qaddafi, going so far as to, in a 2004 BBC interview, deny the regime’s responsibility for the Lockerbie bombing. Ghanem late became head of the powerful oil ministry. If Qaddafi cannot retain Ghanem, he cannot retain his technocratic elite in general. It is another sign that the regime is collapsing.

The defection is likely in part a response to the International Criminal Court indictment of Qaddafi and his eldest son. Persons who now continue to be right hand men of that regime are themselves in danger of prosecution for war crimes. There are fewer and fewer places regime figures could flee the reach of the ICC. Since Qaddafi has deeply angered Saudi Arabia, even that famed refuge for deposed heads of state is out of the question.

Despite the cavilling about the ICC indictment, in fact it is likely to hasten the end of the regime by signalling to the Tripoli elite that they are increasingly likely to face prosecution and sanctions, encouraging them to throw the Qaddafis under the bus. If Tripoli could quickly move to expel the Qaddafis (I hear Ecuador has no extradition), and then the Western elites with no massacres on their hands could sue to join the Benghazi leaders in a government of national unity, the fighting could end quickly.

The Transitional National Council is already moving to form such a national government, bringing delegates from around the country. Tripoli’s accession would be welcomed by the TNC, which already has many Qaddafi defectors in its ranks.

Damn that meddlesome ICC!

CFR Study Advocates National Prosecutions for International Crimes

by Duncan Hollis

My former State Department colleague, David Kaye, now the Executive Director of UCLA Law’s human rights program, has just authored a study under the auspices of the Council on Foreign Relations (John Bellinger and Matt Waxman also particiapted in the effort as Directors).  Kaye acknowleges the contributions made by the likes of the ICTY, ICTR, and ICC, but argues that more work is needed at the national level to supplement the international criminal law process.  Here’s a summary of the pitch:

Yet, after more than two decades of experience, the limits of these [international] courts’ capabilities are becoming clear. While they have brought some senior leaders to justice, the scope of the courts’ budgets and their enquiries can never reach all—or even most—perpetrators of atrocities. They are physically far removed from the scenes of the crimes they are prosecuting, cannot compel evidence or conduct independent investigations, and are vulnerable to changes in funding and international political support.

To overcome these and other difficulties, the international community must place greater emphasis on strengthening the national justice systems of the countries where atrocities have occurred. In this Council Special Report, David Kaye examines existing international justice mechanisms, analyzes how they have succeeded and where they have failed, and explains what reforms national legal systems will require to secure just and peaceful outcomes. Cognizant of the myriad individual challenges facing countries experiencing or emerging from violent conflict, Kaye nevertheless identifies a core set of common needs: political pressure on governments reluctant to prosecute perpetrators; assistance in building legal frameworks and training legal officials; support for investigations, including forensic analysis and security sector reform; and creating belief in the justice system among the local population.

To these ends, Kaye outlines several recommendations for U.S. policymakers and their governmental and nongovernmental partners worldwide. Beginning in the United States, Kaye argues that Washington should expand diplomatic and financial support for national justice systems and appoint a senior official to oversee initiatives from the State Department, Justice Department, USAID, and other agencies. Abroad, he calls for the secretary of state to organize a donor conference to agree on funding priorities and responsibilities for the international community, and to establish a coordinating body to ensure that support for national-level justice systems is properly coordinated and informed by best practices.

You can download the full report here.

Administration Internal Divisions Over Drone Strikes in Pakistan?

by Kenneth Anderson

The Wall Street Journal’s ace national security reporting team – Adam Entous, Siobhan Gorman, Julian Barnes, several others – reported in a very interesting story today that divisions have emerged at the senior levels of the Obama administration over the strategic utility of drone strikes in Pakistan.  The issue is between the unquestioned effectiveness of the strikes – unquestioned by all parties in the internal debate, according to the article – and the apparently deleterious effects on relations with Pakistan.  CIA director Panetta is on one side, in favor of the strikes, and the US ambassador to Pakistan, career FSO Cameron Munter (who was two years ahead of me at Claremont High School, as it happens), is on the other.  According to the article, continuing the program as it stands has prevailed for now, with more review down the road.  But the article includes some additional tidbits, including a remark in passing that although the Pakistani government puts the civilian casualties of drone strikes in the hundreds, the CIA puts it at around 30.  The article also adds that the Pakistani government would like to have equal say in the agreed target list:

U.S. Ambassador to Pakistan Cameron Munter, backed by top military officers and other State Department officials, wants the strikes to be more judicious, and argues that Pakistan’s views need to be given greater weight if the fight against militancy is to succeed, said current and former U.S. officials.

Defenders of the current drone program take umbrage at the suggestion that the program isn’t judicious. “In this context, the phrase ‘more judicious’ is really code for ‘let’s appease Pakistani sensitivities,’ ” said a U.S. official. The CIA has already given Pakistani concerns greater weight in targeting decisions in recent months, the official added. Advocates of sustained strikes also argue that the current rift with the Pakistanis isn’t going to be fixed by scaling back the program.

Meanwhile, on the broader topic – one that intersects with the drone and targeted killing debate – of CIA and military special ops intertwining, the Washington Post’s David Ignatius (by all accounts one of the most plugged-in people in DC in the intelligence community, though I disagree with his take on drones) has a very interesting column on the issuance of a series of executive orders on the linkages between them.

One consequence of the early “war on terror” years was that the lines between CIA and military activities got blurred. The Pentagon moved into clandestine areas that had traditionally been the province of the CIA. Special Forces began operating secretly abroad in ways that worried the CIA, the State Department and foreign governments.

The Obama administration is finishing an effort to redraw those lines more carefully, issuing a series of new executive orders (known as “EXORDS”) to guide the military’s intelligence activities, sometimes through what are known as “special access programs,” or SAPs.

The power of combining CIA and military resources was shown in the May 2 raid that killed Osama bin Laden. The firepower came from the Navy SEALs, a Special Forces unit that normally functions under the Title 10 war-fighting authority of the military. Because the SEALs were operating inside Pakistan, a country with which the United States isn’t at war, the CIA supervised the mission under Title 50, which allows the agency to conduct “deniable” activities overseas.

The system worked in the Abbottabad raid. But over the past 10 years, there have been instances when crossing the traditional lines created potential problems for the United States. It’s especially important to understand these boundaries now as Gen. David Petraeus prepares to take over as CIA director. If the rules aren’t clear, people at home and abroad may worry about a possible “militarization” of U.S. intelligence.

The issue, I think, is more than simply internally drawing the lines, important as that is.  In a piece in last week’s Weekly Standard, I argue that the administration needs to do a much better job of publicly articulating the legal basis for how it sees the intertwining of Title 10 and Title 50 operations – military and CIA.  (Bobby Chesney has been writing about this over at Lawfare.)

House Libya Resolution: Pretty Tame Stuff

by Peter Spiro

Here’s the text of the resolution passed in the House this afternoon on Libya, as introduced by Speaker Boehner.  It’s not insignificant, as an institutional pronouncement, even though it’s non-binding. It amounts to a kind of soft law.  The resolution provides that “the President shall not deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya unless the purpose of the presence is to rescue a member of the Armed Forces in imminent danger.”  Congress is clearly unhappy with the continuing operation, and it’s going to be tougher for the White House to give it the brush-off with this marker on the books.  It may be non-binding, but I wouldn’t be putting troops on the ground without a congressional okay, in advance.

But the resolution doesn’t assert that Obama has acted unlawfully in a general way or even that he’s violated the War Powers Resolution in particular (by continuing the action without specific congressional authorization beyond the 60-day clock).  From the Boehner resolution’s findings, in section 4:

The President has not sought, and Congress has not provided, authorization for the introduction or continued involvement of the United States Armed Forces in Libya.  Congress has the constitutional prerogative to withhold funding for any unauthorized use of the United States Armed Forces, including for unauthorized activities regarding Libya.

That’s a pretty limited assertion of congressional power.  Just about everybody agrees that Congress can use the purse strings to curb the use of force by the executive branch.  This action evidences an equilibrium, not instability, in war powers practice.

A Sentence-Based Theory of Complementarity

by Kevin Jon Heller

I have just posted a new essay — my first since finishing the NMT book! — on SSRN.  Here is the abstract:

Scholars have long debated to what extent the Rome Statute’s principle of complementarity permits states to prosecute war crimes, crimes against humanity, and acts of genocide as ordinary crimes such as rape and murder instead of as international crimes. Two positions dominate the discourse, what I call the “hard mirror thesis” and the “soft mirror thesis.” Proponents of the hard mirror thesis argue that such prosecutions never satisfy the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions better serve the goals of the Rome Statute. I challenge both theses in the essay and defend an alternative theory of complementarity that focuses exclusively on sentence. In particular, I argue that any national prosecution of an ordinary crime should satisfy the principle of complementarity as long as it results in a sentence equal to, or longer than, the sentence the perpetrator would receive from the ICC.

As always, comments and criticisms most welcome!

International Lawyer Publishes 2010 Year in Review

by Roger Alford

The ABA’s International Lawyer Year-in-Review has just been published and as always it is a monumental achievement. The issue is not available on the web, but the International Lawyer’s home page is here.

The issue includes 450 pages of international law discussion and over 150 pages of foreign and comparative law analysis. If you are looking for a thumbnail sketch of almost every major development last year in the field of international and comparative law, this is a good place to start. For those students looking for a topic for writing a journal article, I can think of few places better to start than this annual issue.

Kudos to Mark Wojcik and William Mock for their role as general editors, and to the hundreds of authors and editors involved in the process. Having served as the general editor for several years, I appreciate how much work goes into the final product.