ASIL on Targeting

by Deborah Pearlstein

As usual, the American Society of International Law conference in Washington, D.C. is filled with panels of interest and great off line conversations with friends and colleagues. Good to see many OJ’ers there. Among many other things, I wanted to highlight yesterday’s lively discussions on targeted killing, including a panel featuring Daniel Bethlehem, Marco Sassoli, Hina Shamsi and David Glazier – a wonderfully thoughtful group. I take it the panel was available via live stream so would expect it will be posted in recorded form at some point as well. For now, a few assorted notes (in no particular order).

On Transparency. Most speakers echoed now familiar calls for the Obama Administration to be more forthcoming in publicizing the legal standards by which it conducts targeting operations. (Former State Department Legal Adviser Harold Koh also emphasized in his evening panel remarks that he thought the Administration is “hurting itself” by its lack of transparency on these issues.) While I took Daniel Bethlehem to be supportive of the idea that the Administration must share its legal rationale for targeted attacks, he demurred somewhat to emphasize a point I’ve heard many fine administration lawyers make in various forms – namely, that the publication of legal advice per se is a bad idea because it will chill government lawyers from advising their clients as candidly as they should.

Whether one thinks of this idea in terms of a legal privilege or no, the concern is certainly a sound one. But two points. First, in the current targeting context, it seems to me there’s a great deal more transparent the administration could be well short of releasing actual legal advice. The long promised presidential speech. A flow chart of process. A list of groups it believes included among those “associated” with Al Qaeda. Its definition of imminence under international law. One could go on (see many earlier posts). Second, the formal opinions that emerge from the U.S. Department of Justice’s Office of Legal Counsel – among the key documents on targeting the ACLU and Congress seek – aren’t just any legal advice. By statute and by tradition and by practical effect, they are statements of the law as understood by the executive branch of the U.S. government. Particularly on issues of legality bearing on security, they are sometimes the only statement there is. There does need to be a space for the delivery of candid legal advice. Given their function, though, hard to see how formal OLC legal opinions can be it.

On CIA, DOD & IHL. No dissent I could detect to the notion that it is generally a good idea to put the shooting end of targeting operations in the hands of DOD rather than CIA. More striking was a remark Bethlehem made almost in passing, to the effect that of course the United States can’t avoid its responsibility to comply with its international legal obligations simply because it claims to be acting under Title 50 of the U.S. code (authorizing CIA activity) as opposed to Title 10 (authorizing operations by the U.S. military). Bethlehem is certainly right about that, as I think all the panelists agreed. I’m just not sure that’s actually what many in the U.S. intelligence community – even the lawyers – think. Indeed, the impression I’ve taken both from public speeches and offline conversations is that many intelligence community (IC) lawyers think just the opposite. That is, the IC thinks that unless our international law obligations are separately implemented as U.S. law, as long as the IC has presidential authorization (as in the process provided for by Title 50), those obligations are, essentially, optional. Curious disconnect. Anyone more knowledgeable care to shed any light? Comments most welcome.

On the Armed Conflict. None of the panelists – none – thought the notion that the United States was involved in a global, non-international armed conflict with Al Qaeda and associated forces was plausible as a matter of international law. This of course isn’t news. But in a country in which every branch of domestic government has embraced the idea that the war we are fighting is (at a closest approximation) exactly that – it was a striking reminder of the distance between us and the rest of the world. It’s this distance I’ve worried we’ll be exacerbating if folks on the Hill interested in adopting an AUMF 2.0 prevail. As I heard it, Bethlehem seemed to feel the same way.

9 Responses

  1. Deborah,
    I don’t claim to be more informed but have given the Title 10/Title 50 international law issue a bit of thought.  For what its worth, and somewhat briefly for such a difficult topic:
    It is my general view (published here at OJ, in Temple L. Rev., and elsewhere) that congressional authorization to engage in armed conflict empowers the executive to wage war, but only within the limits of applicable international law.  This is the clear import of Supreme Court precedent from Bas v. Tingy to Charming Betsy to Paquete Habana and beyond.  A straightforward application of the principle announced in Charming Betsy (a statute of the U.S. ought not be interpreted to violate international law unless no other construction remains) to the AUMF or a declaration of war necessarily yields this result.
    When it comes to Title 50 covert action, though, the legal waters become murkier.  I don’t mean to suggest that the below analysis is my established legal opinion on this topic, but it is at least a fair argument in support of those who believe international law does not constrain covert operations, at least from the perspective of U.S. domestic law.
    First, we must remember that Title 50 operations may be authorized as an integral part of an armed conflict or in the absence of one.  Thus, IHL may or may not be triggered and apply to a covert operation or program, and IHRL would apply only to the extent one accepts (contrary to long held official U.S. views) that IHRL applies to a nation’s extraterritorial actions.  Regardless of whether either body of international law applies to a covert operation or program, though, the key question is whether international law constrains the covert action authority granted by Congress.
    More importantly, then, Title 50 authorizes the President to “influence political, economic or military conditions abroad” when “such an action is necessary to support identifiable foreiogn ploicy objectives…and is important to national security interests of the United States….”  
    Covert action statutes therefore appear to expressly authorize intervention in the domestic affairs of other nations in violaton of the ICJ’s pronouncements of customary international law in Nicaragua v. U.S.  If the primary purpose of a statutory scheme is to authorize what would otherwise be a violation of international law, it is hard to see why one should apply the general interpretive principle of Charming Betsy either to the central purpose of the operation or to the particulars of its execution.  Thus, solely from the perspective of U.S. law, it could be fairly argued that international law does not constrain the covert actions authorized by Congress.  
    Supporting this approach is the fact that the covert action statutes declare that a presidential finding “may not authorize any action that would violate the Constitution or any statute of the United States.”  That covert action statutes clearly authorize conduct in violation of international law and expressly require complaince only with domestic law might be fairly read to imply that covert operations and programs need not comply with international law in their particulars.  However, the requirement to comply with “any statute of the United States” would mean that any congressionally executed international obligation, such as those implemented in the War Crimes Act, does constrain covert action.
    Of course, even assuming this is an accurate interpretation of the covert action statutes, this domestic authority would not excuse the U.S. from international responsibility for any attendant violation of international law.  Thus, even if the covert actions at issue in Nicargua v. U.S. were authorized by covert action statutes, the ICJ held the U.S. violated the ICJ’s understanding of international law.

  2. John makes a very good point in his last paragraph (no disrespect meant to his other paragraphs!). With respect, in my experience a lot of US discussion quickly turns into a discussion about US domestic law. It is important to consider both domestic law (which may require considering international law) and international law simpliciter.
    Was the discussion on global, non-international armed conflict with Al Qaeda nuanced (distinguishing between sovereignty issues and IHL issues)?

  3. Second Ian and the end of John. The beginning of John is the US foreign relations law vision of this. We need some domestic law prosecutions of these CIA types that vindicate the international law rule through ordinary domestic law – no need for some fancy implementing legislation to get there.

  4. Thanks, Ian and Ben.  I should note that the War Crimes Act constraint on covert operations is what caused the Bush administration so much stress after Hamdan v. Rumsfeld.  Recall that the administration had concluded that the War Crimes Act didn’t apply to the conflict with al Qaeda (because it was neither international nor noninternational in the sense intended by the Geneva Conventions).  The Court’s decision that CA 3 applied meant that its prohibitions of cruel treatment, torture and outrages on personal dignity applied to any covert enhanced interrogation programs via the War Crimes Act.  That is why the administration then sought to have that section of the WCA amended.

  5. When one considers what also took place during the panel on the death of bin Laden, it is evident that many accept the permissibility of targeting those who are directly participating in armed attacks (DPAA) under the self-defense paradigm (i.e., under U.N. art. 51), although Marco Sassoli would not agree. Marco did affirm what Hina Shamsi from ACLU and others have rightly noted – that the law of war paradigm is not applicable outside the theatre of a real war in Afghanistan and parts of Pakistan unless a member of al Qaeda who is DPH (a civilian who is a direct participant in hostilities) is directly participating in the real war at the time of targeting outside the theatre. This conclusion follows especially in view of the fact, as Marco and Hina affirmed, that the U.S. cannot be at war with al Qaeda as such under the traditional criteria for an insurgency, Geneva Protocol II (art. 1 thereof), or the Tadic approach as refined in subsequent decisions (see also 18 ILSA J. Int’l & Comp. L. 565 (2012)). Marco thought that the human rights paradigm applied, but although human rights law is global a second issue is whether a person outside of U.S. territory has human rights protections and under the well-known human rights test (and the test under the CAT), such a person would have to be in the “effective control” of the U.S. at the time of targeting, which is not the case. Most U.S. targetings, therefore, would be permissible under the law of self-defense.

  6. I’ve been unable, as of yet, to find anything other than summaries of this panel.  Any idea if a vid link will be posted at some point?  The ASIL website didn’t have anything to say about it, nor did I find a spot for video archives of any sort.

  7. Dean,
    Lawfare (www dot lawfareblog dot com) posted a link to the video recently.

  8. Thanks to Marty Lederman for passing along this link to the video:

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