The President’s Report on the Legal and Policy Frameworks

While hardly light reading, the Obama Administration’s new (released last week) Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (the “Frameworks Report”) is, as several of our blogospheric colleagues have already noted (e.g., here) an invaluable document. The Frameworks Report breaks little or no new legal ground in illuminating the United States’ current understandings of the intersecting bodies of international humanitarian law, international human rights law, and domestic U.S. law governing U.S. military operations. But it does serve (at a minimum) three important functions as we head into new presidential administration I would be remiss in not highlighting.

First, as others have noted, the Frameworks Report assembles in a singular location the legal interpretations and policies heretofore captured in an eclectic collection of policy statements, speeches, executive orders and elsewhere. For all those grappling with these issues – a huge array of constituencies from students and scholars, to allied governments and operatives, to advocates, attorneys and clients, inter- and non-governmental organizations and courts – it is an essential service.

Second, the Report offers either clear evidence for and/or (depending on one’s perspective) an advocacy agenda against the existence of emerging customary international law (or at least international legal interpretation) on a host of contentious topics. Put differently, it is a marvelously authoritative barometer of the current U.S. government view of multiple putatively customary principles that can now be tested in some specificity against positions other nations have (or haven’t) taken. For a sampling, see, e.g., pp. 8-11, which documents the following:

(1) Whether an attack is “imminent” for jus ad bellum purposes depends on a set of factors (including all those identified in Daniel Bethlehem’s 2012 AJIL article on the topic, which is cited in the footnotes of the Report), including (quoting Bethlehem) “the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.” (p. 9)

(2) State A need not obtain the consent of State B to use force on the territory of State B if State A is using force against a non-state armed group that poses an actual or imminent threat of armed attack against State A if State B is “unwilling or unable to confront effectively” the non-state actor in its territory. A state is most clearly “unable,” according to the Report, if it lacks effective control of the territory where the armed group is operating. “Unwillingness might be demonstrated where, for example, a State is colluding with or harboring a terrorist organization operating from within its territory and refuses to address the threat posed by the group.” (p. 10) Does the current U.S. government believe “unwillingness” is limited to these circumstances? I doubt it, and the language is carefully crafted to avoid imposing any such limitation on the scope of the claimed ‘unwilling or unable’ permission. But it is significant, as a matter of probative evidence of U.S. custom, that this (less controversial) circumstance is all the United States is willing to embrace on paper.

(3) The consent of a territorial state to the foreign use of force on its territory does not violate international law when the foreign state is “undertaking an otherwise lawful use of force with the consent of a territorial state.” (p. 11, emphasis added) This characterization of the permission is helpfully limited, clarifying, as I would like to read it, that the consent of the territorial state to the use of force on its territory does not relieve the foreign state of identifying an independent jus ad bellum justification for the use of force – namely, the existence of a UN Security Council resolution, or the reasonable invocation of individual or collective right of self-defense. (It’s a problem I’ve blogged about before here and is the subject of a helpful new piece by Oona Hathaway and colleagues in a forthcoming piece in vastly greater detail and attentiveness.) Am I reading too much into what the Report says on this topic? Possibly so. But there is no question that the Report on this topic (and all else) is crafted with exceeding care, and says only this: “[T]he United States generally recognizes three circumstances under which international law does not prohibit [a resort to force on the territory of another state]: [(1) UN Security Council authorization]; (2) use of force in self-defense; and (3) use of force in an otherwise lawful manner with the consent of the territorial State.” (p.8)

Third, most important, and whatever its authors’ intentions in this respect, the Framework Report lays down a marker for the incoming administration. Although I think it remains entirely unclear whether and to what extent the new administration will prove interested in and/or attentive to the legality of its activities in this realm (under international or domestic law), there is some reason to think that it is bureaucratically harder to depart from a “Framework” than from a series of ad hoc speeches. In this respect, the Report’s most significant passages are in the first few paragraphs of the President’s Foreword, which uses variations on the words “consistent,” “history,” and “tradition” a half-dozen times. Whether justified or not – and in the sense of caring about what the law provides in this realm, more than justified – the outgoing administration has tied its current positions to the full weight of what U.S. presidents and their lawyers have done for the past 200 years. There are plenty of topics about which I and the current administration disagree. (See, e.g., whether a state from which one does not seek consent can be considered “unwilling” to act; whether ISIL is covered by the AUMF; whether aerial bombing is a use of force less than “war” such that the President has independent constitutional power to use force without congressional authorization, etc.) The salience of law to questions of national security – to which this Report should serve as Exhibit A – is one on which we should all be able to agree.