September 2011

Washington Post Stories on the CIA and JSOC – and My Prediction of Harold Koh’s Legacy as Legal Adviser

I wanted to flag for reader attention two articles in the Washington Post on the CIA and JSOC (Joint Special Operations Command), and their evolving roles as central counterterrorism fighters.  The first is by Greg Miller and Julie Tate, “Since Sept. 11, CIA’s focus has taken lethal turn,” September 2, 2011.  The second is by Dana Priest and William Arkin, “Top Secret America: A look at the military’s Joint Special Operations Command,” September 2, 2011, and adapted from Priest and Arkin’s new book, Top Secret America, which I look forward to reading. Over at Lawfare, Bobby Chesney talks about the first article, and some of the legal aspects raised or implied in the gradual integration of CIA operations with JSOC operations — what, referring to US law, is the interplay of “Title 10″ operations (military) with “Title 50″ operations (CIA).  As to the second article, on JSOC, speaking in my exceedingly august capacity as Lawfare’s book review editor, I plan to find someone knowledgeable in the relevant law and policy to review the full book, and I’ll let people know when that happens. My own interest in these topics — aside from drones and targeted killing — is somewhat related to Bobby’s detailed legal analysis of the separate domestic legal authorities under these different statutory provisions.  But it runs to a more broadly conceptual question, viz., whether there is, by implication, an emerging “law,” or at least “norms,” of the use of force in something that we can loosely call “covert action” but which is, in many circumstances, not truly covert, but instead at most “deniable.”  The distinction matters because countries traditionally have hid behind the covert nature of covert action as a way of not having to discuss whether there are any rules or standards, not necessarily and unlikely to be “international” in a formal legal sense, but still norms for the conduct of such operations — either because they were genuinely unknown to the public, or else because even if hinted at, they were sufficiently under wraps that deniability could be plausible.  At least plausible enough not to have to talk about its conduct. The emergence of targeted killing and drone warfare by the United States, and partly by Israel, has altered that.  These operations are at most thinly-deniable, not covert nor plausibly deniable.  They are denied (more exactly, “neither confirm nor deny”) with respect to Pakistan for purely political reasons, not because they could plausibly be denied.  In that case, however, the legitimacy of the operations, particularly with regards to how they are conducted, becomes an issue, as a political and legal issue.  I am all in favor of targeted killing and drone strikes against “covert” targets — places where conventional hostilities are not at that moment underway — and depending upon circumstances either as part of an armed conflict or else as “naked” self-defense.  Legitimacy requires — at least for Americans — some sense that there are rules and norms; not necessarily black and white, and certainly not a set of rules that might satisfy Human Rights Watch or the ACLU — but norms of some kind for the conduct of these operations.  I'd add as well that one way of approaching this in domestic law would be to amend Title 50 to distinguish "covert" from "deniable" in terms of oversight and other accountability, apart from standards for conduct. I'm also interested to see whether Bobby concludes that we need some kind of formal statutory reform to take account of integrated military and CIA operations. For these kinds of reasons, however, I am coming to think that the most important contribution that Harold Koh, as Legal Adviser to the State Department, and hence the legal voice of the United States on this matter, will turn out to have made to international jurisprudence, is his repeated assertion that the conduct of targeted killing  - whether with drones or human teams, whether by the CIA or by JSOC, and whether as part of an armed conflict or as “naked” self-defense — must still conform, as with any use of force, to norms in its conduct of necessity, distinction, and proportionality.  That, for the first time I am aware, constitutes an official assertion by a senior legal official of a leading state that even covert, unacknowledged force used by a state has conditions attached to its conduct.  Covert, or outside of an armed conflict, does not mean standardless in its conduct.  Because this kind of “covert” activity is widely known and merely deniable, and because it being widely known creates demands for legitimacy, and since legal legitimacy requires the acknowledgment of legal norms, even necessarily very general ones, the result is the gradual extension of conduct norms into covert activities.  

So What Did You Do On Your Summer Vacation (Besides Overthrowing Gaddafi)?

Well, at least one student at UCLA will have story to beat all others. AN NAWFALIYAH, LIBYA // At the centre of a circle of cheering rebel soldiers near Colonel Muammar Qaddafi’s hometown this week stood an improbable figure who gives new meaning to the term “road trip”. Chris Jeon, a 21-year-old university student from Los Angeles, California,shrugging cooly, declared: “It is...

11th Circuit Dismisses ATS Claims in Bolivia Case

John Bellinger writes at Lawfare on the 11th Circuit's dismissal of Alien Tort Statute claims against former senior Bolivian government officials.  (Jack Goldsmith served as defense co-counsel.)  This case (opinion) involves former government officials, and so does not raise perhaps the most hotly-contested issue in ATS litigation today, corporate liability, on which there is now a signficant circuit split.  However, I agree with John that the tone of the 11th Circuit opinion reflects something that Roger has mentioned here at OJ, a note of caution entering appellate decisions in ATS cases.

First, the Court shows considerable sensitivity (if not irritation) about being asked to judge security actions taken by foreign leaders, especially in this case where the leaders were “faced with thousands of people taking to the streets in opposition.”  Repeatedly invoking the Supreme Court’s call for caution in Sosa, the Court emphasizes that the ATS is “no license for judicial innovation” and that “judicial restraint is demanded.” Moreover, the Court observes that “We know and worry about the foreign policy implications of civil actions in federal courts against the leaders (even the former ones) of nations. And we accept that we must exercise particular caution when considering a claim that a former head of state acted unlawfully in governing his country’s own citizens.” Second, the Court also emphasizes that Iqbal requires not only specific factual allegations of misconduct but allegations of misconduct by the particular defendants.  “We do not accept that, even if some soldiers or policemen committed wrongful acts, present international law embraces strict liability akin to respondeat superior for national leaders at the top of the long chain of command in a case like this one.”

UN Report Finds Israeli Blockade Legal (But Raid on Flotilla Excessive)

From the NYT: UNITED NATIONS — A United Nations review has found that Israel’s naval blockade of Gaza is legal and appropriate but that the way its forces boarded a Turkish-based flotilla trying to break that blockade 15 months ago, killing nine passengers, was excessive and unreasonable. Take it away, Kevin!...