Responding to Marty Lederman on Somalia
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.