Author Archive for
Deborah Pearlstein

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.

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…)

Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land

by Deborah Pearlstein

Let’s set aside for now the apparent reliance on the “unwilling or unable” exception to justify the U.S. invasion of Pakistan without that country’s consent – even without having asked the country for its consent. Let’s also set aside the apparent designation of the bin Laden operation as a “covert action” under U.S. law – when it’s not at all clear the operation was intended “to influence political, economic, or military conditions abroad,” as the U.S. law of covert action requires (as opposed to, for example, just killing or capturing bin Laden). The most troubling sentence in Charlie Savage’s new New York Times piece on the legal theory underlying the United States’ 2011 incursion into Pakistan to kill or capture Osama bin Laden is this: “While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a ‘covert’ action, officials said.” (more…)

Constitutionality of Congressional Restrictions on Guantanamo Prisoner Transfers

by Deborah Pearlstein

Harold Koh has an interesting post over at Just Security thinking through what options would remain available to President Obama to close Guantanamo if Congress once again imposes restrictions on the transfer of prisoners off the base. Congress has imposed a range of such restrictions in annual legislation since 2009, invariably prohibiting the transfer of prisoners to the United States. As Koh notes, Congress has accomplished this on each occasion not by imposing an outright ban, but through its capacious Spending Clause power under Article I of the Constitution. Congress famously holds the purse strings for all U.S. government spending, and it has prohibited the expenditure of any funds for the purpose of such transfers. Are these restrictions an unconstitutional infringement by Congress on the President’s own powers under Article II (as Commander in Chief, etc.)? Koh stops short of answering directly, but he does say this (quoting President Obama’s recent veto statement and past signing statement):

“[M]ost likely, the President’s action would stand even if challenged, as Prosecutor-in-Chief to ‘determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests,’ and as Diplomat-in-Chief and Commander-in-Chief to decide and arrange through negotiations ‘when and where to transfer them consistent with our national security and our humane treatment policy.’”

Koh is surely right there must be some limits to Congress’ power to act through spending restrictions, as with all constitutional power; legislation will be held unconstitutional if it violates Bill of Rights prohibitions, for example. Particularly to the extent the legislative restrictions impinge on the President’s prosecutorial powers (although only to that extent – it seems clear the administration still contemplates criminally prosecuting only a fraction of the remaining detainees), the President has a constitutional case to make that the Constitution gives him, and only him, not only the power but the duty to execute the laws that are established. Koh might also have added that the weight of history, such as it is, is on the President’s side. As I’ve written in detail elsewhere, in all of the major wars of the 20th and 21st centuries in which U.S. detention operations are now concluded – World Wars I and II, Korea and Vietnam, the 1991 and 2003 Iraq Wars – conflicts during which the United States held hundreds of thousands of prisoners in total, the imprisonment of enemies held pursuant to wartime authorities has always come to an end, and the resolution of these detentions has always been handled by the executive branch. Indeed, Congress has not imposed anything like the current restrictions on the exchange, transfer or release of prisoners, during or after the period of armed conflict in any of the previous conflicts over the past century.

Nonetheless, I remain deeply skeptical of the strength of the constitutional argument that the President has sufficient Article II power to succeed in demonstrating that the spending restrictions are an unconstitutional infringement on presidential power. (more…)

Reviewing Scott Shane’s New Book on Anwar Al-Awlaki

by Deborah Pearlstein

New York Times reporter Scott Shane recently published his book-length treatment of American Anwar Al-Awlaki – who he was, and what and why President Obama decided to order him targeted by drone strike in 2011. Not sure the book adds much for those who follow these things closely to what is already known from Shane’s own reporting and other sources, but it is certainly timely reading in light of the latest leaked administration documents regarding its process for drone strikes. My review of Shane’s book in the Washington Post is here. The leaked papers, published by The Intercept, are here.