Author Archive for
Deborah Pearlstein

Torture and the U.S. Military

by Deborah Pearlstein

Cross-posted at Balkinization

There should by now be little doubt that various members of the incoming administration, including the President himself, would be willing to torture terrorist suspects should opportunity arise. On the campaign trail, Donald Trump expressed a desire to return to “waterboarding” terrorism suspects and “worse.” Mike Pence declined to rule out torture when asked about it expressly this past weekend. Nominee for CIA Director Mike Pompeo opposed President Obama’s decision in 2009 to close C.I.A. black-site prisons and also to require interrogations to comply with the rules of the Army Field Manual. Army Lt. Gen. Michael Flynn, the choice for national security adviser, is perhaps more equivocal. As a firsthand witness to the counterproductive effects of abusive interrogation, he has said that “I would not want to return to ‘enhanced techniques,’ because I helped rewrite the manual for interrogations.” On the other hand, “if the nation was in grave danger from a terrorist attack involving weapons of mass destruction, and we had certain individuals in our custody with information that might avoid it, then I would probably OK enhanced interrogation techniques within certain limits.”

Even with all best intentions, Congress and the courts are unlikely to play much role at the outset in reining in this particular kind of presidential ambition. There are clear statutory prohibitions against the use of torture as it is; and the courts are empowered to act only once an actual case or controversy is before them. It was in no small measure in the face of the same dilemma during the first George W. Bush administration that so many legal scholars turned to focus on the role of internal, intra-branch checks on executive power – the Justice Department Office of Legal Counsel, agency Inspectors General, and others. It also became apparent that the uniformed military could be included among potentially available checks on executive power.

After the attacks of 9/11, military lawyers and others in the Pentagon played a critical role resisting efforts by the Bush Administration to evade laws barring torture and cruelty to detainees in U.S. custody. Not only was such treatment illegal, they argued, authorizing techniques the troops had long been trained were prohibited was disastrous policy: it sowed confusion in the field, compromised operational effectiveness, endangered our troops, and undermined the mission they had been sent to carry out. Well beyond the Pentagon, it was a young Army specialist who helped blow the whistle on the torture that permeated the U.S.-run Abu Ghraib prison in Iraq, and a Major General whose investigation made clear to Congress how inadequate resources, training, and accountability helped allow the abuse to endure and spread. Elsewhere, military lawyers urged Congress to investigate whether war crimes trials at Guantanamo could ever actually succeed in delivering justice. And it was an Army Reserve lieutenant colonel whose declaration about his experiences at Guantanamo extraordinarily persuaded the Supreme Court to change its mind and agree to decide whether the detainees there had a constitutional right to have their cases heard. Entirely apart from the military’s duty to disobey manifestly unlawful orders, both active duty military, and retired leaders, played a pivotal role in preventing America’s torture crisis from becoming worse than it was.

Yet as laudable as this service was, and especially as the incoming administration peoples itself with retired generals galore, the idea that the military might limit the President in the pursuit of his goals should seem at some level exactly backwards. The President is, after all, the Commander in Chief of the military, a symbol of our country’s bedrock principle of civilian control. That principle was born in part from a (Revolutionary War-era) fear of military oppression in ordinary life, a fear that seems unlikely today. But it was also driven by the worry that the military – whose political popularity is unsurpassed in contemporary American life – was capable of exercising outsized influence over democratic decision-making. The image of the “man on horseback” came to symbolize the concern that a particularly successful and charismatic commander could effectively lead the public down a path contrary to its own democratic interests, undermining the ability of elected leaders to accomplish the policy goals the People wanted them to fulfill.

While the military has of course changed dramatically since the Constitution was drafted, the enduring concern that the military might unduly influence politics led to a series of regulations beginning in the early twentieth century restricting active-duty military from engaging in political activities. Congress came to prohibit officers from holding civil elective office, and to impose criminal penalties for using “contemptuous words” against the President, members of Congress, or other elected officials. Today, active duty military personnel are prohibited from participating in partisan political fundraising, rallies, or conventions; using official authority or influence to interfere with an election; or soliciting votes “for or against a partisan political party, candidate, or cause.”

Such proscriptions are sensible. But these rules, coupled with powerful career incentives, have too often been understood to limit the honest expression of professional military dissent. There was in Washington’s time, and today remains, a critical difference between a military expression of partisan alliance and one of professional judgment. And there is certainly a difference between expressions of political disagreement, and an insistence on adherence to law. The era of Abu Ghraib taught us that there is a range of ways in which the military can, consistent with their own duty to uphold the nation’s Constitution and laws, help to steady the ship of state. Of course the military is no panacea. Plenty of troops supported Donald Trump, and not all would oppose a return to torture. But it is also clear that the military is capable of performing at least a part of the same service Americans should expect of all our political institutions: as a platform from which people of good will and a commitment to law can make their voices heard. Those concerned about a return to torture should reach out. For it is as least as likely as any of our institutional checks to help constrain whatever policy adventurism is to come.

The Unknown Unknowns

by Deborah Pearlstein

While I would like to be able to offer some meaningful insight into what we might expect from the foreign policy of Donald Trump, I don’t think it’s possible to overstate at this stage the depth of current uncertainty surrounding what he will actually do. Part of this uncertainty is a function of his preternatural ability to take every position on every topic. (Latest case in point: After Trump repeatedly criticized NATO as overpriced and obsolete over the course of his campaign, we learned from President Obama today that Trump assured the President in their oval office meeting that “there is no weakening” in America’s commitment “toward maintaining a strong and robust NATO alliance.”) Another part of the uncertainty flows from the apparent depth of Trump’s own ignorance of the possibilities of the executive branch. (Again only the most recent example, the Sunday Wall Street Journal reported of Trump’s meeting with President Obama: “Mr. Trump seemed surprised by the scope [of the duties of running the country], said people familiar with the meeting. Trump aides were described by those people as unaware that the entire presidential staff working in the West Wing had to be replaced at the end of Mr. Obama’s term.”)

And then there is the scope and strength of the federal bureaucracy – the career professional staffs of the Departments of State, Defense, Justice, Homeland Security, the intelligence agencies, and more – who, to judge by both newspaper reporting and my entirely non-scientific and idiosyncratic Facebook feed, are grappling mightily with whether to stay or go in the face of extraordinary new leadership. As U.S. Presidents have found time and again (and as I’ve written about in the context of the military in particular, e.g., here), this apparatus makes it difficult sharply to turn the ship of state even with the clearest of intentions and the greatest of bureaucratic skill. There is little indication (as yet) that the incoming administration has either. This is hardly intended to offer comfort or reassurance; I am incapable of greeting with anything but dread the election of a President who has, for example, openly advocated policies that would violate the law – including torturing prisoners with waterboarding “and a lot worse,” and killing the families of those he thinks threaten the United States. It is intended as a check on my own worst speculative instincts. And as a plea to those who are part of that apparatus to start out, at least, by trying to stay.

New Report on European Counterterrorism Practice

by Deborah Pearlstein

Anthony Dworkin, a senior policy fellow at the European Council on Foreign Relations, has an interesting new report out about developing ways in which European governments are using force abroad to combat the threat of terrorism of various sorts. The study is full of useful data points so is worth reading in its entirety, but I write here briefly to emphasize a conclusion it does not reach. The way the study is pitched at the outset of Dworkin’s blog post about its issuance – emphasizing the convergence of U.S. and European counterterror legal theories – those reading quickly might imagine it to support the view that various European powers have at long last embraced the United States’ novel post-9/11 legal theory of a global, non-international armed conflict (NIAC) against Al Qaeda, the Taliban and associated forces. But the study itself makes clear that while France and Britain, for instance, have come to use force in Syria and Iraq for various reasons, it is not the case that their engagement in this conflict reflects an acceptance of the concept of a global NIAC. See, for example, this section:

“In one important respect, however, European governments involved in counter-terror wars have stopped short of the expansive legal position adopted by the United States. EU member states (including France, despite the rhetoric used by government officials) are united in rejecting the notion of a single transnational armed conflict with the ISIS or al-Qaeda network. In the words of one British official, they continue to treat these terrorist groups as presenting a series of ‘specific threats in specific locations….’ This approach reflects both a strategic view about the most effective approach to fighting terrorist organisations and a legal analysis that rejects the notion of a geographically unbounded armed conflict against a non-state group.”

Recent practice of a few European states to be sure bear on other important questions of, for example, the extent of the embrace of the U.S. “unwilling or unable” theory of overcoming sovereignty objections to the use of force; and, for example, how international human rights law is thought to inform state use of force in self-defense against terrorist groups. But those looking for evidence of European support for the existence of such a thing as a transnational NIAC won’t find it here.

Still on that Syrian IAC

by Deborah Pearlstein

Thanks to Ryan Goodman for his thoughtful entry in our ongoing discussion about the existence of an international armed conflict (IAC) in Syria. For those just joining, I’d questioned Ryan’s analysis that an IAC exists in Syria as between Syria and the United States on the grounds that none of the three recent events Ryan cited in support for his conclusion – the putative existence of a U.S.-backed “no-fly” zone in country, the United States’ mistaken attack on Syrian forces (which the U.S. says it mistook for ISIL forces), and the U.S. support for Turkish operations in northern Syria – established that the United States was now a party to a conflict against Syria (any more than earlier U.S. operations had established as much). Ryan responds solely on the matter of U.S./Turkish operations in the north, arguing that an area of northern Syria is now subject to occupation by Turkey, and that the United States is a “co-belligerent” with Turkey in this occupation.

Let me begin with an area of agreement – that if one state occupies the territory of another state it triggers an IAC. Is that what’s happening in Syria? I suspect Turkey and the United States would quibble with that characterization of affairs – both Turkey and the United States have stated that the area of concern is in the control of the Free Syrian Army, who have the support of coalition and Turkish forces. But for these purposes let us assume the situation is simply a partial occupation of Syria by Turkey. The core question here with respect to the United States’ status is whether its involvement demonstrates its co-belligerency with Turkey (against Syria).

Whatever else might be said about the concept of “co-belligerency,” a model of legal clarity it is not. Ryan cites to several useful posts on the topic (in a different context) by Just Security’s Nathalie Weizmann; and Rebecca Ingber has an indispensable article on the topic as well. Two points I think especially important for present purposes. First, as both Nathalie and Rebecca explain, co-belligerency is a concept from the (pre-UN Charter) law of neutrality that has been imported into the law of armed conflict; its scope and applicability in the modern law of even IAC remains the subject of much debate and little if any authoritative guidance. Nathalie and Rebecca thus rely mostly on arguments of various scholars to unearth its meaning. That said, second, as Nathalie describes it: “Under the law of neutrality, a State will become a co-belligerent when, in association, cooperation, assistance or common cause with another belligerent it participates in hostilities to a significant extent or it systematically or substantially violates its neutrality duties of impartiality and non-participation in the conflict.”

Is the United States (and for that matter, other air forces in the “coalition” it describes as participating in the north) “systematically or substantially violat[ing] its neutrality duties of impartiality and non-participation in the conflict” by supporting a Turkish occupation of Syria? I think it is certain that the United States would strongly contest that assessment. In the DOD press conference cited in Ryan’s original post regarding the fighting in northern Syria, the Pentagon spokesman was at pains to make clear that U.S. activities in the region were exclusively focused on attacking ISIL full stop: “When they [Turkish forces] began to focus on something other than ISIL then I think we had to withdraw our support for that. And so I think we are now trying to keep those elements separated and focused on the counter ISIL fight at this point….. [W]hat we have made clear is that our support is — our support to all parties is contingent upon the focus on ISIL. And that will be how we will continue to do this.” The news stories Ryan cites on the U.S. role in the region are consistent with this statement. From this I glean not only does the United States not share common cause with Turkey to the extent of any Syrian occupation, but that the United States does not cooperate, assist, or in any other way support Turkey to the extent that state is participating in any Syrian occupation.

While I think the public reports of activities in the region are all consistent with this view, my point here could hardly be to hope to settle definitively what exactly the United States and its allies are doing in northern Syria. The open sources speak for themselves, but undoubtedly do not contain the whole story. My point is rather, as I put it in response to Ryan’s original post, I think the claim that the United States is a co-belligerent in an IAC in Syria (based on these events) is hardly clear. Given that legal uncertainty, and given what I believe (and still believe) are significant negative policy consequences that would flow if the United States decided to publicly announce it was engaged in an IAC in Syria, I would not encourage the U.S. government to pursue such an announcement.

A Syrian IAC?

by Deborah Pearlstein

Like Gabor Rona, I, too, found Ryan Goodman’s post yesterday at Just Security intriguing. Further to our ongoing discussions here (e.g.) and there (e.g.) about the classification of armed conflicts, Ryan’s claim is that in light of three recent events (noted below), the armed conflict in which the United States is engaged in Syria (a conflict I think most have understood as a non-international armed conflict (NIAC) between the United States and certain non-state groups (including ISIL and Al Qaeda and associated forces)) is now international in nature – a conflict between (among others) the United States and Syria. He further argues that the ability to now classify the fighting as an international armed conflict (IAC) is a good thing for two main reasons: (1) the IAC designation triggers an obligation among all states (under the Geneva Conventions) to try or extradite those suspected of war crimes in that conflict, with the effect, he argues, of ratcheting up the diplomatic pressure on Syrian officials; and (2) it is possible for the United States (and presumably others) to reap the benefits that come with the legal classification “IAC” without also absorbing the burdens associated with (I take him to mean) the legally meaningless but politically weighty description, “war.” I disagree with Ryan’s analysis that the conflict is, for the reasons he gives, now an IAC. More, I tend to see the relative political and legal consequences of a U.S. recognition of such a conflict as having exactly the opposite effect he anticipates. Here’s my thinking. (more…)

The NIAC Threshold

by Deborah Pearlstein

At least three things trouble me about Adil Haque’s recent post over at Just Security about how to determine when armed violence crosses the threshold from ordinary criminality or the like to non-international armed conflict (NIAC), such that the law of armed conflict applies. As Adil rightly notes, much rides on the question. On one hand, recognition of a NIAC imposes on all parties to the conflict an obligation to comply with, at a minimum, the humanitarian provisions of Common Article 3 to the Geneva Conventions (prohibiting torture, cruelty, and much else). On the other hand, under the law of armed conflict (LOAC), a state party can use force anytime and against any member of an opposing force. In armed conflict, and in no other circumstance, killing is lawful as a first resort. For this reason, among others, Adil’s suggestion that we should lower the threshold for recognizing the existence of a NIAC, i.e. apply the law of armed conflict even for nominal levels of violence involving non-state actors, merits careful attention. So here are some initial concerns… (more…)

Re-Engaging on an ISIL AUMF

by Deborah Pearlstein

In the past few weeks, Jack Goldsmith and Matt Waxman on the one hand, and Marty Lederman on the other, have restarted a discussion about the significance of Congress’ ongoing failure to enact legislation expressly authorizing the United States’ expansive use of force against ISIL in Iraq, Syria, and now in Libya. In a piece for Time Magazine, Jack and Matt faulted the Obama Administration for failing to “return to the Congress and the American People and insist on a new authorization for this new war.” They argued that the Administration “took away every political incentive that the responsibility-shy Congress might have to debate and authorize the war” by advancing the dubious notion that the existing 2001 statute (the AUMF) (authorizing force against Al Qaeda and its associates) affords the President sufficient authority to attack ISIL as well. Responding at Just Security, Marty quite agrees (as do I) it would be better if Congress had enacted (or would enact) an ISIL-specific use of force. But Marty is skeptical there was much more President Obama could have done to secure congressional action, and also questions whether Congress’ failure to enact new authority really sets as worrisome a precedent for democratic governance or executive power as Jack and Matt think.

Jack and Matt are right to point out that Obama’s legal reliance on the 2001 AUMF to justify the use of force against in Iraq, Syria and Libya is more than a little suspect. (I’ve written previously about why I think so, e.g., here.) Marty is right to doubt whether blame for Congress’ failure to act on ISIL can fairly be placed, as Jack and Matt seem to suggest, at Obama’s doorstep. But there is plenty more to the story I think both pieces miss. (more…)

Syria Dissents

by Deborah Pearlstein

There’s an interesting, if I suspect academic, discussion over at Just Security at the moment about whether the recent proposal by 51 State Department diplomats to use military force against the Assad regime directly would be lawful under domestic and/or international law. My suspicion that the discussion is at least at present academic is based on the unlikelihood that any such policy change is in the offing – particularly in this election year and, more important, in the context of the current President’s longstanding position that greater U.S. military force of this nature in Syria would be counterproductive. But academic at the moment or no, the questions are important and will certainly be faced early in the term of the administration that takes office in January 2017. And particularly on the international law side, the questions go to the heart of the larger issue of how much formal analysis one thinks international law in this area can bear. Marty Lederman and Ashely Deeks started the discussion here, Harold Koh responded here, and Charlie Savage has a good review of the way these debates unfolded in the administration considering the legality of the use of force in Libya and Syria here. So (more…)

Planning for Detention

by Deborah Pearlstein

Picking up on Jens’ post about the Administration’s apparent lack of plans for holding detainees picked up in Iraq/Syria, I too found the Times report troubling. In part I suspect it was because I was immediately reminded of one of the findings of the many Pentagon investigative reports issued after the revelations of torture at Abu Ghraib and other U.S. detention facilities in Iraq. All apart from criticisms of changes in policy and legal interpretation, some of the harshest blame for the widespread nature of the abuse was the total failure of preparation. In particular, according to the report prepared by Lt. Gen. Anthony R. Jones, tasked with investigating the Abu Ghraib Prison and the 205th Military Intelligence Brigade in Iraq: “[P]re-war planning [did] not include[] planning for detainee operations.” The finding always seemed stunning to me, given the months long (or longer) lead up to the 2003 invasion, and the certainty from the beginning that the war was going to involve a significant U.S. commitment of resources, including ground troops. But the Pentagon was of course then laboring under Defense Secretary Rumsfeld’s preference for keeping forces light, insisting that it was possible to minimize the amount of supplies and surrounding support required to overthrow the regime. Of all the lessons out of the 2003 invasion and the years that followed, it seemed to me the failure of that attack-now-plan-later approach was among the clearest.

The latest U.S. engagement in Iraq and Syria is of course in key respects different. U.S. troops are there, we have maintained, to support the Iraqis in their efforts against ISIL. Our commitment of ground “personnel” has been steadily growing (making Congress’ failure to authorize the use of force in this new conflict even more problematic than it already was), but it is far, far from anything like the 2003 invasion and prolonged occupation. All the same, it is not as though we don’t have a series of models from past conflicts for how to handle the inevitable detention problem – models ranging from our own establishment of vast detention operations (in, e.g. World War II and after 9/11) to shared arrangements with allies (in, e.g. Vietnam and the 1991 Gulf War). All of these models have had issues, but some far far fewer than others. I got curious a few years back so finally did some digging and wrote up this little survey. Here, for example, is 1991 in sum.

Between January 22, 1991, when the first prisoner was captured, and May 2, 1991, when the United States transferred the final prisoner from its custody, U.S. detention facilities processed nearly 70,000 detainees, including through the use of battlefield hearings on prisoner status pursuant to Article 5 of the Geneva Convention (III)…. At the outset of hostilities, the United States quickly secured military-to-military agreements with allies France and the United Kingdom, setting forth the process to be followed by any capturing forces in processing prisoners of war or other detainees, initially through U.S. detention or medical facilities in theater. Although American military police and combat engineers raced to build prison facilities in theater from scratch, the United States also undertook a separate agreement with Saudi Arabia that authorized the subsequent transfer of many of these prisoners to existing Saudi facilities. By the end of the conflict, more than 35,000 prisoners were held in U.S. facilities, with 63,000 more held in Saudi Arabia…. Ultimately, the vast majority of prisoners in Saudi Arabia were repatriated to Iraq under ICRC auspices after Saddam Hussein issued a general amnesty. In all events, all prisoners had been transferred from U.S. custody by May 2, 1991. On August 23, the ICRC announced that the repatriation of Iraqi prisoners was complete. And the ICRC concluded that the “treatment of Iraqi prisoners of war by U.S. forces was the best compliance with the Geneva Conventions by any nation in any conflict in history.”

Don’t be misled, there were plenty of issues post-1991 (including controversy surrounding the resettlement of some Iraqi prisoners/refugees in the United States, described elsewhere in the piece), and plenty more differences between that conflict and this. But particularly as this Administration barrels toward transition, with no chance U.S. involvement in the region will have come to an end by January, now’s the time to put pen to paper with the allies, in the region and beyond, who share the anti-ISIL goal. Securing commitments, to resources and to upholding the detainee protections required by law, is tough. But not nearly as tough as paying the human rights and strategic costs of detention without a plan.

Responding to Steve Vladeck and Charlie Savage on Garland

by Deborah Pearlstein

Thanks to Steve Vladeck for the thoughtful post over at Just Security about his take on Garland’s record on Guantanamo cases and related matters. Steve, like Charlie Savage in the Times, is in one sense far more critical of Garland than I. I say “in one sense” because, before jumping back into the details here, it seems apparent we’re all applying somewhat different metrics here in assessing that record, some I fear more problematic than others. (more…)

Worried About Garland’s National Security Law Record? Don’t Be.

by Deborah Pearlstein

On the hopeful assumption the Senate will come to its senses and consider President Obama’s nomination of Merrick Garland to the U.S. Supreme Court on its merits, I wanted to respond to what appears to be some skepticism among progressives that Garland is indeed a good choice for the Court. The Huffington Post, for instance, published an article following the nomination headlined (ominously) that Garland once sided with the Bush Administration on Guantanamo. I was curious, so I decided to look up the cases.
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The Unwilling Part of “Unwilling or Unable”

by Deborah Pearlstein

Marty Lederman last week posted a typically comprehensive treatment of the legal issues raised by Charlie Savage’s account of the administration decision to send forces into Pakistan to kill or capture Osama bin Laden. I’d earlier criticized the CIA’s apparent view that non-self-executing treaties are not legally binding on the President, and I take Marty plainly to agree with this principle. It’s no doubt true there is yet more to learn and understand about how the CIA’s position on this question has actually manifested itself in administration decision-making, but given what we already know, I’m not sure how to avoid the already deeply concerning conclusion that as a general matter the CIA seems to have badly misunderstood the legally binding nature of treaties the United States has signed and ratified.

Where Marty and I appear to disagree is on the question (a question I set aside at the beginning of the last post) whether the United States’ incursion into Pakistan during the bin Laden mission violated Article 2(4) of the UN Charter (one of those legally binding (even if non-self-executing) treaty provisions) prohibiting the “use of force against the territorial integrity or political independence of any state.” There is of course vigorous ongoing disagreement (e.g. here and here, but this is only the tip of the iceberg) about the argument that there is any exception to the Art. 2(4) principle on the grounds that the target country is “unwilling or unable” to address the threat a non-state actor on its territory poses to the targeting country. But let’s ignore all that for now and just assume for the sake of argument that one embraces some “unwilling or unable” exception to the Article 2 prohibition. Even assuming as much, the argument the administration lawyers appear to have made in the bin Laden case goes a step beyond. In particular, because the United States did not want to risk alerting Pakistan of the operation in advance for fear that Pakistani officials would inform bin Laden, the lawyers would have had to argue that the targeting country could conclude on its own that the target country is “unwilling” to address the non-state actor threat, whether or not the country would in fact be willing if asked. In Marty’s conception, the argument would go as follows. (1) The “unwilling or unable” test “is best understood as an application of the jus ad bellum requirement of necessity.” (2) Because the United States had a reasonable and well-founded fear that elements of the Pakistani government would have tipped off bin Laden, making any subsequent intervention impossible, it was reasonable for the lawyers to conclude that the U.S. use of force “without prior Pakistani notification/coordination was, more likely than not, necessary to interdict the threat posed by bin Laden.” (emphasis mine) Put more directly, a target country can be deemed “unwilling” to address a non-state actor threat if the targeting country thinks it is “necessary” to do the targeting itself.

Marty forthrightly notes that there is no current law that informs this argument – an artifact, it seems to me, of the reality that only a handful of countries have yet recognized the “unwilling or unable” exception at all. But that does not mean there is no law here that applies. (more…)