Author Archive for
Deborah Pearlstein

Notes on Zivotofsky

by Deborah Pearlstein

A fascinating ruling from the U.S. Supreme Court this morning in Zivotofsky v. Kerry, the case presenting the question whether Congress can mandate that U.S. citizens born (to American parents) in Jerusalem may have Israel listed on their passports as their place of birth. Since 1948, every U.S. president has carefully avoided opining in any context on the status of Jerusalem as falling within Israeli or any other nation’s sovereignty. The U.S. State Department has thus always issued passports listing “Jerusalem,” and not Israel as the place of birth for citizens born there. In 2002, Congress enacted a law mandating that citizens so desiring could have “Israel” listed as their place of birth. President Bush, then Obama, objected, arguing that such a law infringed on the President’s power to recognize foreign sovereign governments – a power both administrations maintained is held exclusively by the executive. The case marks the first time the Court has ever recognized a ‘preclusive’ power of the executive branch – that is, a power the President not only holds under the Constitution, but holds even if Congress enacts a law otherwise.

Two brief initial notes as I continue to digest. First, the majority’s opinion is workmanlike and narrow. The Court applies the well known framework for analyzing questions of executive power established in Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, relies on a host of earlier Court opinions, and concludes that the Reception Clause (the Article II provision giving the President the power to receive ambassadors) necessarily “encompasses the authority to acknowledge, in a formal sense, the legitimacy of other states and governments, including their territorial bounds.” The Court’s opinion – which transcends typical political divisions (Justice Thomas joins (in part) the majority of Justices Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan) – expressly disclaims any reliance on Article II’s Vesting Clause, the broad and undefined vesting in the President of “the executive power.” A holding based on that clause would have had potentially much more significant implications; the Vesting Clause has been regularly invoked by those advocating the most capacious understandings of executive power as a catch-all provision for affording the President sweeping powers in national security and foreign affairs. This decision offers no support for that theory.

Second, the majority’s opinion sensibly relies repeatedly on the nature and practice of recognition at international law as informing the framers’ understanding of the import of affording the President the power to receive ambassadors. As the Court puts it on one of several occasions: “[I]nternational scholars [citing Grotius and Vattel] suggested that receiving an ambassador was tantamount to recognizing the sovereignty of the sending state.” This is and should be seen as yet another unremarkable example of reliance by the Court on international law in understanding the scope of contemporary executive power under the U.S. Constitution. Not even Thomas in concurrence (much) protests. Whether the Supreme Court’s relative comfort with such analysis trickles down to the lower courts as questions of executive power arise in other contexts – the D.C. Circuit, among others, remains chronically allergic to international law in any form – will be among the more interesting consequences of this otherwise limited ruling to watch.

al Warafi’s Active Hostilities

by Deborah Pearlstein

Cross-posted at Just Security

As Marty Lederman’s earlier post explains, a D.C. district court is now considering the habeas petition of Guantanamo detainee Mukhtar Yahia Naji al Warafi, found in an earlier habeas case to be a member of the Taliban’s armed forces, who argues that because “hostilities” between the United States and the Taliban have ceased, the domestic statute (the AUMF) on which the United States has relied no longer authorizes his detention. Marty and I are, I believe, in substantial agreement about most aspects of the case. (And thanks to Marty for the link to my article, where I’ve written about the merits of these issues, and the role of the courts in resolving them, at length.)

But because both the briefs and (therefore) Marty’s post devote so much time to parsing the President’s statements about the existence of an armed conflict between the U.S. and the Taliban – statements I think only marginally relevant to the merits of al Warafi’s case – I want to clarify what this case mostly is, or should be, about.

Warafi’s petition is, appropriately, based on Article 118 of the Third Geneva Convention (GCIII), requiring that prisoners “shall be released and repatriated without delay after the cessation of active hostilities.” By its terms, GCIII only applies to international armed conflicts – that is, conflicts between two or more states. As I think all would agree, the conflict in Afghanistan has for some years been a non-international armed conflict – that is, a conflict between states (Afghanistan and the United States) on one side and several non-state parties (including a Taliban insurgency) on the other. But because Justice O’Connor expressly cited Article 118 in explaining the Court’s understanding of the scope of the AUMF in Hamdi, there has been little dispute since Hamdi that Article 118’s limitation on the duration of detention informs the “necessary and appropriate” scope of AUMF detentions.

Article 118 does not require a court (or anyone else) to determine whether the parties are in fact still in a state of “armed conflict” within the meaning of international law. The existence or not of an “armed conflict” can matter a great deal in some circumstances – most commonly, in the determination whether an individual may be tried for war crimes, a question at issue in our own military commission trials as we speak. It may also ultimately matter in al Warafi, for reasons I discuss below. But “armed conflict” (see GCIII Common Article 2) and “active hostilities” (in Article 118) are separate terms in the treaties, and were deliberately designed to refer to separate concepts, as well. As the Commentary to GCIII makes clear, the drafters of Article 118 were interested in hastening the release of prisoners, requiring their release at an earlier point than previously assumed – i.e., in the current version of the Conventions, as soon as the fighting stops. (In an interstate armed conflict, which is what Article 118 addresses directly, this point can occur before the end of the conflict.) The notion was in part to prevent parties from continuing to hold prisoners on some pretext, as some of the Allies did after World War II, keeping prisoners for purposes of forced labor. (For more on how the United States has ended its detention operations in wars of the past century, see here. Notably, the United States has often released prisoners back into conditions of hostilities far more active than what the U.S. brief now describes in Afghanistan.) The Article 118 rule was equally driven by an interest in letting prisoners return home without having to wait for a formal peace agreement to be concluded (or some other manifestation of often unattainable clarity in the relations between the parties).

Because Article 118 is thus aimed directly at the facts on the ground, as it were, claims based solely on what the President (or the Taliban, for that matter) says about the mission of the United States or the existence of an “armed conflict” can hardly be dispositive of whether “active hostilities” actually continue–and that is the relevant question, as the Government suggests in the back end of its brief (see the end of Marty’s post), but that Al Warafi strangely ignores. So what is actually happening on the ground in Afghanistan? Between the DOD General Counsel’s speech at ASIL some weeks back, and the U.S. brief filed in al Warafi, one might expect that we would have important insights into the answer to that question. Alas, we don’t yet know very much. This is no doubt due in part to some significant redactions in the government’s brief – passages the relevance of which is impossible to evaluate. And some unredacted parts of the government’s brief describe circumstances other than fighting: the presence of U.S. troops, for example, or the presence of a threat from Al Qaeda rather than the Taliban. These facts are of limited significance to the question of whether “active hostilities” between the U.S. and the Taliban continue. The U.S. military maintains a presence in numerous countries; that is hardly enough to constitute “active hostilities.” And the existence of a generalized, chronic “threat” from Al Qaeda or the Taliban – a claim the government brief makes repeatedly – likewise should not suffice. U.S. troops, civilian employees and nationals face threats all over the world. There is a difference between the threat of hostilities and actual, “active” hostilities.

What matters here is the handful of unredacted incidents the government notes on pages 14-15 of its brief – incidents involving actual attacks by the Taliban. Interestingly, however, of the four incidents cited, only one appears to involve a Taliban attack on U.S. military forces as such. One incident involves a Taliban infiltration of Afghan forces, in which three American civilian contractors were killed. Two others involve attacks on NATO forces, in which two U.S. troops were killed. The last involves “an attack by a suicide car bomber” near a U.S. military base, which is not reported to have resulted in any American casualties.

Without for a moment discounting the immeasurable human cost of such incidents, it is here that understanding the meaning of “active hostilities” might be informed with reference to the nature of “armed conflict.” Article 118 uses the term “active hostilities” rather than “armed conflict” not to suggest that prisoners could be held even after the conclusion of full-fledged armed conflict, as long as any low level of hostilities exists. Rather, that article makes the continuation of “active hostilities” the condition for continued detention for the opposite reason – that is, to facilitate the release of prisoners as soon as conditions make it possible, whether or not the parties have succeeded in agreeing to a formal end to armed conflict. It is difficult to imagine that the drafters of this provision imagined a condition of zero violence would be required before prisoners would be entitled to release. That is, it is difficult to imagine the drafters wished to replace one too-practically-difficult condition for the termination of detention with another too-practically-difficult condition, given their express concern for the reality, as the Commentary puts it, “that captivity is a painful situation which must be ended as soon as possible.” The “active hostilities” term is better read as embodying a pragmatic standard, with a finger on the scale of release. Whether the redacted passages of the government’s brief reveal that active hostilities are yet over or not, the legal standard should not require conditions of absolute peace to conclude that they are.

Current Guantanamo Detainee Publishes Diary

by Deborah Pearlstein

While I’ve no insights into why the government finally permitted current Guantanamo detainee Mohammedou Slahi to publish the diary he hand wrote in English back in 2005, several years into his captivity, published it now is, subject to relatively minor redaction. The diary is a remarkable read in many respects; my longer take and a summary of Slahi’s account can be found in my review for the Washington Post this past week. Slahi, a Mauritanian national who holds a degree in electrical engineering, describes brutal beatings and other forms of torture not only in detention while in Jordan, but also at length at Guantanamo itself. A federal district court in Washington ruled in 2010 that Slahi’s petition for habeas corpus be granted; on appeal, that decision was remanded (for the application of a different standard of who can be considered “part of” Al Qaeda), and there it continues to sit. Diary publication notwithstanding, Slahi remains at Guantanamo today.

Never Thought I’d See the Day

by Deborah Pearlstein

Picking up on Kevin’s post about Fox News’ reporting on the terrorist threat (or something) in Europe, it’s worth noting that in addition to reporting that multiple areas of Paris were now “no go” zones, Fox also reported “poll results” purporting to show that 69% of Muslims in France support ISIS; and an ‘expert’s’ assertion that Birmingham, England is a “totally Muslim city where non-Muslims don’t go in.” Fox competitor CNN is, naturally, all over it. The factual inaccuracies eventually got so bad that after trying to correct them item by item, Fox eventually surrendered (so to speak), issuing a general apology to “the people of France and England.” Diplomacy in action.

Thanks for the Conversation, OJ

by Deborah Pearlstein

When Peter Spiro wrote to ask me back in 2007 whether I might be interested in writing a response to then-State Department Legal Adviser John Bellinger’s posts on the blog, Opinio Juris, I had two nearly simultaneous reactions: (1) The U.S. State Department Legal Adviser was writing on a blog?!; and (2) Yes.

I am, as I take it Duncan once was, a pathetically late adopter of new technologies – gadgets and forms of communication alike. Blame it I suppose on being the offspring of a physicist father and journalist mother, but peer-reviewed scholarship and old fashioned investigative reporting were – still are for me – the standard bearing pillars of thought and current events. How I now find myself writing scholarship for a field still substantially without peer reviewed journals is perhaps best left for another discussion. How I find myself writing on a blog is easier to explain: it’s where a conversation we all needed to have about law and security in the new world was happening.

That the conversation was happening on a blog primarily about international law admittedly gave me some cause for hesitation when Chris asked me to become a regular contributor the following year. I had gone to law school to study civil rights and U.S. constitutional law. True, I had studied some international law, with the lovely Detlev Vagts, who we lost not too long ago. But the subject seemed to involve far more about ancient maritime incidents than suited my taste. Yes, there were (even then) human rights treaties on the books. But they seemed to me then of little instrumental value to one aiming to tackle injustice (an immodest aspiration) here in the United States.

I was just past clerking when September 11 happened, and not far into practice when it became clear the United States’ response to those attacks would be the most important thing to happen to constitutional law in my lifetime. It soon became equally clear that pulling out my old international law books, and mastering all I hadn’t gotten the first time around and more, would be a necessity if I hoped to grapple seriously with the rights impact of U.S. uses of force, detention, interrogation, trial, and more. The law of armed conflict quickly became a central area of professional focus for me, as my practice shifted from an excess of pro bono constitutional law cases to full time work for a human rights NGO.

Yet even in the midst of that practice, it still seemed presumptuous to consider myself part of the field of international law, a field that I fear still carries more than its share of barriers to entry for law students, lawyers and non-international law faculty alike. Too many of the “real” international lawyers and scholars I knew had a bad habit of assuming vast amounts of background knowledge, and of using field-specific jargon of the worst, Latinate kind. Too few made careful enough distinctions between the law that is binding and law that is hortatory. Between the law as it is and the law as we might wish it to be. There was a lot of underbrush to sort through.

Not that there wasn’t blame to go around; there was deep ignorance of international law even among folks who should know better. International relations theorists who didn’t recognize a distinction between their criticisms of particular international institutions and the substance of international law. Law professors who had never contemplated any difference between comparative law and international law. A leading political scientist who, on hearing that I taught both constitutional law and international law, expressed amazement at teaching in such “opposite” fields – the one being hard core LAW-law, the other being (something like) a Hogwarts text on witchcraft and wizardry. And far too many American policymakers who think “international” law means someone else’s law, rather than (as is often the case) commitments we ourselves agreed to undertake.

Of all the terrible effects of 9/11 and the U.S. response to it, I like to think one of the few beneficial effects – certainly among the most ironic – is that it has brought far greater awareness of international law to a new generation of students, practitioners and scholars. My strong sense – someone should do a less impressionistic survey – is that courses in U.S. law schools in relevant areas of international law, including the law of armed conflict and human rights law, have proliferated in recent years. Federal cases in those fields certainly have, along with federal judges’ exposure to them. And that has made a forum like OJ more in demand, and more essential to the discussion, than ever.

I can’t quite say everyone’s talking about international law now. But I probably need to start admitting that at least on occasion, I am. Thanks to OJ – and all of you – for the great conversation.

Cliff Sloan on Closing Gitmo

by Deborah Pearlstein

In case you missed it Monday, departing U.S. State Department special envoy for closing Guantanamo had a sharp op-ed in the N.Y. Times, marking the administration’s recent successes at moving detainees out of the prison and urging that further progress be made. Among other things, Sloan highlights several “fundamental misconceptions” he believes are behind continuing opposition in Congress and elsewhere to steps necessary to close the facility, particularly the misconceptions that the recidivism rate is high and that all of the detainees there pose a continuing threat.

Of the 127 individuals there (from a peak of close to 800), 59 have been “approved for transfer.” This means that six agencies — the Departments of Defense, Homeland Security, Justice and State, as well as the Joint Chiefs of Staff and the director of national intelligence — have unanimously approved the person for release based on everything known about the individual and the risk he presents. For most of those approved, this rigorous decision was made half a decade ago. Almost 90 percent of those approved are from Yemen, where the security situation is perilous. They are not “the worst of the worst,” but rather people with the worst luck. (We recently resettled several Yemenis in other countries, the first time any Yemeni had been transferred from Guantánamo in more than four years.) … Of the detainees transferred during this administration, more than 90 percent have not been suspected, much less confirmed, of committing any hostile activities after their release. The percentage of detainees who were transferred after the Obama-era review and then found to have engaged in terrorist or insurgent activities is 6.8 percent. While we want that number to be zero, that small percentage does not justify holding in perpetuity the overwhelming majority of detainees, who do not subsequently engage in wrongdoing.

In light of these statistics, those who argue against continuing transfers are indeed, as Sloan puts it, “constrained by an overabundance of caution.” As I’ve noted here before, and described in detail in a piece just out in the Cardozo Law Review, 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. Thanks to Sloan’s efforts and others, other countries are beginning to welcome former Gitmo detainees. But we have also returned prisoners to homelands still suffering violent political instability, particularly the post-World War European nations whose economic, political, and state security systems were essentially non-functional. We likewise returned prisoners who still harbored violent intentions toward the United States; in World War II, among the first prisoners we released were those Nazis whose enmity was “most hardened” against us (principally because they were not good sources of prisoner labor). And we released prisoners who had ideological allies with whom they could reaffiliate post-detention; we returned thousands of communist prisoners to communist nations at the height of a half-century long war that was “hot” (in Korea and against non-state groups in Vietnam) almost as often as it was cold.

In all of these conflicts, we calculated that any short term tactical risk we might bear by the release of a few individuals was outweighed by the long term strategic benefit to the United States of acting, and being seen to act, in a manner consistent with prevailing law. Sloan notes: “As a high-ranking security official from one of our staunchest allies on counterterrorism (not from Europe) once told me, ‘The greatest single action the United States can take to fight terrorism is to close Guantánamo.’” The strategic benefits here are clear. It’s as good a time as any to recall a little history and seize them.

The Question of Prosecution

by Deborah Pearlstein

The 525-page executive summary of the torture report released this week, and the debate that has followed thus far, is in many respects so dense it is a struggle just to decide where to begin engaging. Having spent years of my life as a human rights lawyer working on precisely these issues – preparing reports on secret detentions, and indeed detainee deaths in U.S. custody, among other things – and having spent plenty of days in shock and horror at what we learned then, I had come to feel almost inured to new revelations. Power drill to the head? We’d seen that earlier. Detainee died of hypothermia having been left mostly naked in his dungeon-like cell? Knew that too. But beyond the important new detail about our treatment of detainees the report offers, it is for me the facts the report reveals about the level of fundamental professional incompetence giving rise to this program, and the extent of the CIA’s efforts to keep information about it from other parts of our own government – including the director of the FBI and two U.S. secretaries of state – that leaves me newly in awe. Among the many telling (and I believe unrefuted) passages of incompetence (p. 11 of the Report): “Numerous CIA officers had serious documented personal and professional problems – including histories of violence and records of abusive treatment of others- that should have called into question their suitability to participate” in the interrogation and detention program. More, the private psychologists CIA hired to develop, operate and assess its interrogation program lacked any “experience as an interrogator, knowledge of Al Qaida, background in counterterrorism, or any relevant cultural or linguistic expertise.” Even as I continue to work through the text of the report, it is clear that it should be required reading for all Americans.

For now, though, I want to begin with one of the questions the report raises that I find much more difficult to assess: whether and how those responsible for the acts of torture described in the report should be held accountable. (more…)

On the Perennial U.S. War Powers Fight

by Deborah Pearlstein

For readers interested in the domestic U.S. law and history of how the U.S. government authorizes the use of force abroad, I had a little piece this weekend over at Daily Beast summarizing the state of play. Among other things, it laments not only the executive practice of not going to Congress as often as it should, but also the gradual loss of other checks on the war power the Constitution’s drafters expected would operate. Here’s a snippet.

The framers reasons for requiring congressional assent for engagements beyond [self defense] reflected their belief that war was “the greatest of national calamities” and should therefore require the agreement of more—not fewer—members of government. More, it was motivated by a commitment to political accountability in a democracy. Rejecting the British “new model” army of Oliver Cromwell and its associated tradition of tyranny and oppression, the framers thought our armed forces should be manned by the citizen-soldier, one incapable of being turned to oppress The People of which he was part. The People themselves would be called up to fight. The Constitution would require Congress publicly to authorize military expenditures “in the face of their constituents” every two years. And only Congress could vote to take the country into war. War would and should be impossible in a free society without The People and their representatives’ consent. Fast forward two centuries, and all these checks have long since ceased to function. The citizen-soldier gave way to national conscription, which in turn gave way to today’s all-volunteer force. The requirement that Congress publicly authorize all military funding has been weakened by today’s vast reliance on private contractors, making it easier for legislators to shield huge swaths of military-related spending from public view by lodging them in less visible appropriations for other departments…. Madison assumed individuals in power would be ambitious, would want to assert their views, and would want to use their power to affect change. Ambition in Congress would counteract ambition in the Executive, and the daily struggle would help keep all the branches in check. But ours has become a Congress lacking all ambition, preferring to hide in the shadows of presidents whose own political courage sometimes fails. Together, they have helped make it ever more possible for the American people to neither feel nor bear the costs of war.

On the Theory that ISIL is Al Qaeda

by Deborah Pearlstein

At the prompting of Marty Lederman and Steve Vladeck, let me take a moment to consider another possible reading of the Administration’s novel view that the 2001 AUMF authorizes its incipient campaign in Iraq and Syria. Recall that the AUMF authorizes the use of “all necessary and appropriate force against those nations, organizations, or persons” responsible for 9/11 and those who “harbored such organizations or persons.” The Administration and the lower courts have thus interpreted the AUMF to authorize the use of force against Al Qaeda, the Taliban, and “associated forces.” My earlier post examined the notion that ISIL was an “associated force” of Al Qaeda. Marty and Steve suggest that the Administration isn’t arguing that ISIL is an “associated force” of Al Qaeda, but rather, that ISIL is Al Qaeda. As Marty explains it:

In 2004, ISIL (then known as al Qaeda in Iraq) was part of al Qaeda proper–subject to its direction and control–in which capacity it attacked U.S. persons and was subject to U.S. combat operations. (Indeed, it was engaged in an armed conflict with the United States.) As such, ISIL was then covered by the 2001 AUMF as a component of al Qaeda. More recently, ISIL and al Qaeda “Central”–its “senior leadership”– have split apart. But ISIL has continued to attack U.S. persons, even after the split; and each of these two groups claims the mantle of al Qaeda–indeed, ISIL’s position (“supported by some individual members and factions of AQ-aligned groups”) is that it, not AQ Central, “is the true inheritor of Usama bin Laden’s legacy.” Accordingly, there are now, in effect, two al Qaedas, each of which was a component of the earlier, consolidated organization, and each of which continues its attacks on the U.S.

In other words, picture an upside-down letter “V” or “Λ.” At the single, sharp point of the Λ is the organization called Al Qaeda, which is responsible for the attacks of 9/11, and which at one point included all of what we now call core al Qaeda (led by Osama bin Laden, now Ayman al-Zawahiri), as well as what was once called al Qaeda in Iraq (AQI) (led by Abu Musab al Zarqawi). Over time, the unity at the top of the Λ has given way to a disunity at the bottom – with both core Al Qaeda (Zawahiri’s group) and AQI (now called ISIL, led by Abu Bakr al-Baghdadi) seeking to, as Marty puts it, “claim the mantle of al Qaeda.”

While identifying a variety of problems with the notion as a matter of statutory interpretation that the AUMF authorizes the use of force against both groups at the bottom of the Λ, both Marty and Steve argue that in key respects the validity of the theory depends on facts that are still not entirely known to the public. Is it accurate as a matter of fact to suggest that both core Al Qaeda and ISIL are both claiming or should be seen to have equal claims to “the mantle of al Qaeda”? One can imagine several ways of trying to take this theory seriously. One would begin by defining what the “Al Qaeda” at the top of the Λ (the group that attacked us on 9/11) was in the first place. One might define a terrorist group in a variety of terms, and I’m certainly open to definitional criteria. For present purposes, let’s take a handful: the organization’s name, its mission, its capacities and personnel, or any combination thereof. Then one would have to hold up each putative successor organization and see if there were any/sufficient commonality to call both AQ core and ISIL part of the same organization that attacked us on 9/11. Could ISIL in any sense assert a claim to carrying the mantle of Al Qaeda? What do we know? (more…)

Is it Legal? No.

by Deborah Pearlstein

Let’s start with the Administration’s newly minted theory (h/t Marty Lederman for posting the operative statement) that the statutory 2001 AUMF authorizes the President’s announced campaign to use force against ISIL in Iraq and Syria. The AUMF does not plausibly extend to ISIL.

In addition to the reasons my friends Jens Ohlin, Jen Daskal and others have already highlighted, let me add this: ISIL is not an “associated force” of Al Qaeda by the Administration’s own definition. In May 2013, former State Department Legal Adviser Harold Koh gave a speech at Oxford setting forth the Administration’s definition of what counts as an “associated force” under the AUMF. (Let’s ignore all questions for now about whether this is an accurate importation of the concept of co-belligerency from international law and just accept the Administration’s version as a given.) Koh said: “The U.S. Government has made clear that an ‘associated force’ must be (1) an organized, armed group that (2) has actually entered the fight alongside al Qaeda against the United States, thereby becoming (3) a co-belligerent with al Qaeda in its hostilities against America.” Is ISIL organized? Surely. Has it “entered the fight alongside al Qaeda”? Absolutely not. Al Qaeda and ISIL are fighting each other. (See just about everywhere, but e.g., here.) Has it thus become a “co-belligerent with al Qaeda in [al Qaeda’s] hostilities against America”? Please.

So what about the constitutional theory, i.e. that the President has inherent authority under Article II of the Constitution as Commander in Chief to undertake the extended campaign he now contemplates? Here, too, this latest initiative takes the Administration several steps beyond even its own previously announced, already expansive understanding of the President’s constitutional authority – set forth in an Office of Legal Counsel memorandum in 2011 justifying the use of force in Libya without congressional authorization. Under the Obama OLC view, the President’s constitutional power permits him to use force without congressional authorization (1) if its use serves “important national interests,” AND (2) if the use of force doesn’t rise to the level of a “war” (based on the anticipated nature, scope, and duration of the planned operations), such that the power to launch it falls within Congress’ express constitutional power to “declare war.” Let’s set aside the troubling breadth of the first part of that standard (does the need to identify any broad “important national interest” really constrain presidential power?), and the inherent unpredictability of the second part (when was the last time a contemplated use of military force by the United States turned out just how we had “anticipated”). Let’s also assume that the broad standard “important national interests” is met here. At a minimum, the United States has an interest in supporting regional stability and protecting America’s various allies and interests ISIL has threatened.

But the ability to call the current engagement not-war pushes all envelopes. Here, unlike in Libya, the President himself has indicated defeating ISIL will be no short-term matter. Unlike in Libya, there is no pretense that the United States will be providing principally logistical support for an air campaign, with our allies doing the actual bombing. Here, according to the President, we will be leading the way, and we will be, in the administration’s own contemplation, engaged for some time. As for the prospect of not having “boots on the ground,” assurances on that matter already seem belied by the presence already of more than a thousand publicly known U.S. military and other personnel in the country – personnel whose safety has already been invoked to justify the use of escalated force. Call them “advisors” if one must, but they have feet, some of them undoubtedly clad in boots, all of them already on the ground. And more to come. The United States is engaged in an “armed conflict” in international law terms (already a non-international armed conflict in Iraq, and if we undertake bombing in Syria without that country’s consent, an international armed conflict as well). We will be using armed force. Many people will die. In other words, in any constitutional sense, this is war.

All this is before we’ve reached more difficult questions of international law, or questions of the Administration’s intention to comply, sooner or later, with the existing domestic War Powers Act, requiring Congress to authorize, sooner or later, any such prolonged entry of U.S. forces into hostilities. I’ll hope to address those separately. In the meantime, for all the uncertainty and challenge of the threat ISIL poses, the difficulty of the policy decisions that must have been involved here, the politics of the impending elections, the complexity of some legal questions in this field – this legal question is one of the easy ones. As a matter of law, the President needs additional authority from Congress. Asserting he has it already is wrong.

Hostages and Prisoners

by Deborah Pearlstein

I’ve been impressed by the number of questions I’ve fielded in the past few weeks from students, colleagues and media alike about whether the United States can and/or should pay ransoms or exchange prisoners for Americans held by various groups overseas. (I discuss the issue in short clips here and here.) Why did we exchange prisoners to rescue Bowe Bergdahl, but refused to pay ransom for James Foley? Is it illegal to pay ransom to these groups, or just a bad idea? Is it really a bad idea?

In the interest of consolidating some answers on a topic that raises a complex cluster of issues, I thought it worth summarizing some of them here – first on the topic of ransom for hostages taken by terrorist groups, then on the topic of prisoner exchanges more broadly. The upshot: It may well be the right policy decision in an individual case for a government not to pay ransom to a terrorist group, but the broader, categorical statement that “we don’t negotiate with terrorists” is neither historically accurate nor strategically wise. (more…)

A Summer of Shifting Alliances?

by Deborah Pearlstein

Just keeping up with the news on international terrorism/counterterrorism this summer could be a full time job. Among many other potentially significant reports, I wanted to highlight this statement recently released by Al Qaeda in the Arabian Peninsula (AQAP), often described by U.S. officials as the branch of Al Qaeda that currently poses the greatest threat to the United States. The AQAP statement announces the group’s support for the Islamic State (formerly known as ISIS or ISIL).

“We announce solidarity with our Muslim brothers in Iraq against the crusade. Their blood and injuries are ours and we will surely support them…. We assert to the Islamic Nation [all Muslims worldwide] that we stand by the side of our Muslim brothers in Iraq against the American and Iranian conspiracy and their agents of the apostate Gulf rulers.”

The statement goes on to offer various bits of non-rocket-science tactical advice to the Islamic State – watch out for spies, don’t assume electronic communications are unmonitored, digging trenches can help protect against the impact of shelling (thanks General Pershing). While I can’t generally vouch for the journalistic practices of the Yemen Times (on which I’m relying for the AQAP statement), this seems a simple direct quotation.

Why does this matter? A few reasons potentially. First, core Al Qaeda (led by Al Zawahiri) has condemned ISIL/the Islamic State and dissociated itself with the group. It is unclear how core Al Qaeda will take this move by one of its branches to voice its support for ISIL, but if AQAP intends to signal a real move away from core Al Qaeda, it would be another significant weakening of Al Qaeda’s regional and international capabilities (and a significant boost to ISIL). Second, AQAP has long been understood by the United States as a force “associated with” Al Qaeda for purposes of coverage by the statutory AUMF (authorizing the President to use force – targeting, detention, etc. – against those groups that attacked us on 9/11). If AQAP is moving to break its association with core Al Qaeda, the statutory argument that AQAP remains one of groups Congress meant to authorize force against in 2001 becomes much weaker. Given that the United States has reportedly continued to conduct targeting operations against AQAP forces in Yemen, this poses a potentially significant legal wrinkle in administration arguments that it enjoys statutory authorization for those operations. On the other hand, it would strengthen any case the administration might make to Congress for new authority to use force against ISIL and its associates. Will the administration seek such new congressional authority, particularly when the War Powers Act 60-90 day clock runs on current U.S. operations in Iraq (after which the President is required to seek congressional authorization)? Stay tuned.