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…)
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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.
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…)
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…)
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…)
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.
As others have already noted, D.C. District Court Judge Royce Lamberth held last week that because “fighting continues” between U.S., Taliban and Al Qaeda forces in Afghanistan, Taliban prisoners held at Guantanamo may still be detained under the domestic statute (AUMF) authorizing their detention. I’ve written here and elsewhere about the propriety of the underlying legal theory in the case so will try not to rehash those points here. But in addition to noting what I think the court got wrong in its analysis, I want to highlight the serious significance of what it got right.
What the court got wrong. Having rejected both parties’ erroneous position (more on which below) that the President’s view is determinative of whether or not a conflict sufficient to justify detention continues, the court then spends little more than a paragraph explaining why the AUMF should be understood to authorize the detention of prisoners captured by the United States in Afghanistan as long as any “fighting continue[s].” What should the court have said? One reasonable approach would have been as follows. First, that Congress, the Supreme Court (Hamdi), and the President have all recognized that the meaning of the AUMF is informed and controlled by the international law of armed conflict. Second, that the Supreme Court relied on the law of international armed conflict (GCIII, Art. 118) in interpreting the scope of the AUMF’s detention authority; and whether or not the Supreme Court was right in identifying Art. 118 as the relevant international law, the district court was bound by its judgment in that regard. Third, that Art. 118 requires that prisoners “shall be released and repatriated without delay after the cessation of active hostilities.” Fourth, that while there is some uncertainty what counts as “active hostilities” in an international armed conflict sense, it is inconsistent with the manifest purpose of Article 118 (made clear in Geneva Commentary to hasten the return of war prisoners given the hardship to all involved) to construe this provision as requiring conditions of zero violence before the repatriation obligation is triggered. Fifth, the continuation of “active hostilities” under Article 118 cannot be established merely by introducing official statements of the existence of hostilities, the presence of U.S. troops in country (which describes the relationship of the United States to dozens of countries around the world), the maintenance of a right of self-defense if attacked (which exists whether or not any hostilities are ongoing), or acts of violence between actors in country other than the parties to the armed conflict. What matters is evidence of actual, repeated, non-trivial incidents of violence between the parties to the conflict.
While I can imagine the court reaching the same result by this metric – i.e. that active hostilities in Afghanistan continue – and I can imagine other reasonable approaches to this analysis that reach varied conclusions (see here), the approach that Judge Lamberth took – ignoring international law altogether – is not one of them.
All that said, what the court got right here is, I think, a great deal more important. In a circuit notorious for embracing political question doctrine – the idea that certain questions of law are beyond the purview of the courts entirely – and contrary to the position taken by both the detainee and the government, the court was categorical in its determination that it is up to the court, not the President, to decide whether active hostilities exist. Citing Supreme Court decisions Hamdi and Boumediene in support, the court reasoned that “habeas rights that lived and died by the unexamined word of the political branches would be fatally flawed.” Rather, embracing the language of ordinary administrative law, what courts must look to is record evidence.
This case will be appealed. The facts on the ground in Afghanistan will continue to evolve. And it is now a great deal more likely than it was before Warafi was decided that a court will someday conclude as a matter of law that the authority to continue to hold some Guantanamo detainees has come to an end.
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.
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.
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.
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.
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.