Responding to Marty Lederman on Somalia

by Deborah Pearlstein

Marty has a response up over at Just Security to my earlier post on the domestic and international law questions arising after the U.S. actions in Libya and Somalia late last week. Continuing the conversation, a few replies here.

(1) Is there a statutory source of domestic authority for the operation in Somalia? Marty’s theory is that the AUMF may well suffice to authorize the attack if the subject was (in addition to being part of Shabaab) a member of Al Qaeda. I suppose it’s possible that’s what was going on here, and there’s surely more we need to know. On the other hand, that doesn’t seem to be part of the emergent leaked story. According to the Times, sourced to a senior American security official, a Navy SEAL team “exchanged gunfire with militants at the home of a senior leader of the Shabab, a Somali militant group. The raid was planned more than a week ago, officials said, after a massacre by the Shabab at a shopping mall in Nairobi, Kenya.” I haven’t heard any reports suggesting the recent mall attack was the work of Al Qaeda (or even Al Qaeda-friendly Shabaab associates), but was rather a direct retaliation against Kenya for its role in intervening in the ongoing and infinitely messy Somalian civil war. Beyond the AUMF, there’s the possibility I suppose that the President was acting pursuant to existing power under, say, 50 U.S.C. 413b to undertake covert action operations. But I’m not sure even that broad definition fits what’s known of the facts here. By statute, “covert actions” are “activities” by the U.S. government “to influence political, economic, or military conditions abroad, where it is intended that the role of the U.S. Government will not be apparent or acknowledged publicly.” Among other things, given the rapidity of the “senior official” leak here, it doesn’t exactly look like the USG was especially worried about keeping its role quiet. That brings us to…

(2) Is there a constitutional source of domestic authority for the operation in Somalia? I don’t think one needs nearly as broad a theory of Article II power as Marty or Bobby Chesney seem to think would be required to justify a limited, proportional strike against the apparent perpetrators of the armed attack that injured American nationals abroad here. You need only as much authority as President Clinton claimed in the 1993 strike at Iraqi intelligence headquarters in Baghdad following the attempted assassination of former President Bush; the same degree of authority Clinton again asserted in the strikes against Afghanistan and Sudan following the embassy bombing attacks in 1998. In other words, you need a theory of presidential power that says the President has some inherent authority to respond to attacks against the U.S. or its nationals in self defense. Why more?

(3) As for the international law issues, we’ll have to wait and hope it is someday revealed whether Libya in fact consented to the U.S. capture operation in its territory. Current reports perfectly conflict on that score. If there was no consent, as Marty recognizes, the U.S. action would apparently violate UN Charter art. 2(4). But that’s not all it would violate. International human rights law – embodied in treaty and custom – prohibits, for example, kidnapping, or arrest without legal authorization. To the extent the U.S. is bound by those rules (and there’s good reason to think it is), I don’t see how the analysis of U.S. conduct under these laws are affected one way or another by what Marty suggestions – namely, Libya’s consent.

5 Responses

  1. All great points, esp re: Article 2(4) and IHRL. An added consideration is whether or not Libya’s own IHRL obligations prohibit Libya from giving it’s consent (if it in fact did) to a U.S. operation that violates IHRL. In my view there are very limited reasons that would permit Libya to “give away” (via consent) the IHRL obligations it has to people within its territory/jurisdiction.

  2. In view of my response to Deborah’s prior post (below), I wish to stress that not all uses of force are expressly proscribed under UN Art. 2(4) and it is possible to claim that a limited capture is not “against” the territorial “integrity” of Liby, “against” its “political independence,” or in any manner inconsistent with the purposes of the U.N. Charter.  A textually-sound and policy-serving reading of Article 2(4) could permit such captures.
    With respect to # 2 points above, please see my prior response re: U.S. Const., art. II, sec. 3 and presidential power to faithully execute the Laws — and please see the many cases cited in the Emory Int’l L. Rev. article and the reasons why the War Powers Resolution would not apply re: Somalia esp.
    Re: human rights law, it certainly applies globally and al-Libi, as a person in the “effective control” of the U.S. certainly is a person who has rights under the CAT, the ICCPR, etc. — but what are those rights beyond the absolute prohibitions of torture, cruel treatment, inhuman treeatment, etc.?  With respect to detention or capture, al-Libi has a freedom from “arbitrary” detention.  In my view, it is certainly not “arbitrary” to capture or detain him.  Moreover, under other relevant international  law, a permissible self-defense capture (as addressed in my prior response) would necessarily not be “arbitrary.”  Lawyers will have to recognize that a lawful “capture” and detention is not an unlawful “kidnapping.”

  3. p.s., and Jonathan, did you have some other human right(s) in mind?  If there was a violation of a human right of al-Libi to not be “arbitrarily” brought into custody and detained, Libya could not lawfully be complicit in such a violation, which would also be violative of UN, arts. 55(c) and 56.
    But I don’t accpet that there has been a violation of ICCPR, art. 9.  However, as time goes by, Article 9(4) requires that he be given access to a court of law, perhaps habeas, to test the propriety of his detention.  What are his constitutional rights at this time, in a week or so?

  4. CNN reports that Somalia welcomed the raid and will do so re: future efforts by the U.S. — perhaps by drone?

  5. CNN reports that a DOD spokesperson has stated that al-Libi is being detained under the laws of war.  Can we be at war with al Qaeda?
    If he is a civilian, Art. 143 of the Geneva Civilian Convention requires that the ICRC have access to him (“all places where protected persons are, particularly to places of internment, detention” and the ICRC IV Commentary at 572 notes “a general rule: all places without exception.”

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