Author Archive for
Deborah Pearlstein

Al Qaeda in the Headlines

by Deborah Pearlstein

Put the words “Al Qaeda” in a news headline, and you inevitably conjure a very particular idea in the mind of the American reader. “Al Qaeda” is the group that attacked the United States on 9/11. The group led by Osama bin Laden (now led, some might recall, by his successor, Ayman Zawahiri). The group we’ve been at war with for the past decade-plus, and that would gladly attack us again when it has the chance. It’s the group (legal-minded readers would add) whose members the President is authorized by the AUMF statute to detain indefinitely or target lethally. It’s a term, in other words, that has specific and powerful meaning in our political and legal life.

But the recent reporting on the takeover of Falluja in Iraq by an “Al-Qaeda-linked” group obscures a much more complicated reality than the one conjured by the brand name “Al Qaeda.” (Among the recent headlines: “Qaeda-Linked Militants in Iraq Secure Nearly Full Control of Falluja” in the New York Times; “U.S. Won’t Ship Iraq The Weapons It Needs to Fight Al Qaeda” (describing “Fallujah’s fall to al Qaeda”) in Foreign Policy.)

Read even a little bit past some of the headlines (ok, typically about ten paragraphs past, more often in a different story altogether) and one learns that the group that took over Fallujah is a radical Islamist group called the Islamic State of Iraq and the Levant, or the Islamic State of Iraq and Syria (ISIS). True, the same group (more or less) was once known as Al Qaeda in Iraq (AQI) (one of about a half-dozen changing names in the mix over the past decade), but the name changed again about a year ago to reflect the group’s growing aspirations and involvement in Syria as well.

Ok, but just because the group is now called ISIS rather than AQI doesn’t mean reports are wrong to call it Al-Qaeda-linked, right? Fair enough, a rose by any other name, etc. So how can one tell whether a group is actually Al Qaeda affiliated or not?

As Harold Koh reminded us at the AALS conference last week (great panel put together by the Section on National Security Law), what matters in the domestic legal sense (in the sense Congress and the Administration and courts have used it in interpreting the 2001 AUMF) is whether these groups are “co-belligerents.” While the term lacks anything like the certainty in international law that many administration lawyers seem to think it has, the Administration at least has adopted a multifactor test for what it thinks co-belligerency means: (1) an organizational affiliation such that Zawahiri’s Al Qaeda is capable of exercising a degree of command and control over the associated group; (2) evidence that the associated group has in fact “joined the fight”; (3) “the fight” that the associated group has joined is against the United States. If the group doesn’t meet those criteria, it doesn’t fit within the definition of the law.

Let’s start with organizational control. As best I can tell from published reports, one of the main sources of in-fighting amongst Islamist rebel group in Syria stems precisely from the fact that ISIS is not following orders from Zawahiri. Here’s Sarah Birke’s recent article (once again headlined, “How al-Qaeda Changed the Syrian War”) from the New York Review of Books describing the evolution:

[ISIS founder] al-Baghdadi decided it was time to merge [another radical Islamist group, Jabhat al-] Nusra, with Al Qaeda in Iraq, expanding the geographical spread of the organization, which doesn’t recognize national borders but seeks to unite the entire umma, or Muslim community of believers, under one rule. He declared the two branches would be known as the Islamic State of Iraq and al-Sham. Al-Sham refers to Greater Syria, the whole expanse of the Levant that holds a special place in jihadist thought for being the heart of the region and close to Jerusalem. But Jabhat al-Nusra’s leader Mohammed al-Jolani, who is Syrian, refused the merger, possibly because it had not been sanctioned by al-Qaeda’s chief, Ayman Zawahiri, who later ruled that the two groups should remain separate (a ruling ignored by the ambitious Baghdadi, leading some to consider ISIS outside al-Qaeda). In fact, while ISIS and Nusra share many aims, and both are well funded and trained, there are significant differences between the two groups. Jabhat al-Nusra stresses the fight against Assad, while ISIS tends to be more focused on establishing its own rule on conquered territory. Nusra has pursued a strategy of slowly building support for an Islamic state, while ISIS is far more ruthless, carrying out sectarian attacks and imposing sharia law immediately. And while Nusra, despite its large contingent of foreign fighters, is seen as a home-grown problem, Syrians at the border frequently described Da’ash as foreign “occupiers” in their country.

Indeed, while Zawahiri has been trying to assert Al Qaeda’s authority over both ISIS and its rival Islamist group Al Nusra, neither group has been a model of compliance. In a videotaped aired by Al Jazeera two months ago, Zawahiri blamed the leaders of both groups for acting without the knowledge of the central al-Qaeda leadership, and ordered the re-organization of jihadist efforts in Syria and Iraq by abolishing ISIS and giving Al Nusra sole responsibility for Syria. ISIS, however, has shown no sign of curtailing its Syrian operations. Indeed, Foreign Policy separately reports that ISIS arrested, and has probably killed, a Jabhat al-Nusra commander in the city of Raqqa. Despite all this, the Times in particular is fond of citing the “black banners of Al Qaeda” as evidence that ISIS, et al. remain tied to the same mast, as it were. But terrorist experts have regularly pointed out the popularity of the black flag with the white lettering among a range of Islamist groups across the region. As Aaron Zelin, co-author of a recent West Point Counterterrorism Center report, put it: “Just because they have a flag does not necessarily mean they are al Qaeda. Anybody could use a flag like that.”

Beyond all this, there’s no evidence I’ve been able to unearth that ISIS has in fact “joined the fight” against the United States. On the contrary, as Dan Byman recently reminded us: “AQI’s focus on Iraq’s Shi’a government and population was never in harmony with the Al Qaeda’s core’s focus on the United States and the West.” While ISIS’s radical Islamism, and of course regional sectarianism more broadly, may well have a host of troubling implications, it is far from the same kind of danger to the United States posed by a group – the Al Qaeda of 2001 the name still evokes – with both the means and the motive to attack the United States directly.

Which brings me back to the original point. Whether or not ISIS is lawfully subject to the use of force authorized by the 2001 AUMF – and I am so far unpersuaded that it is – use of the name “Al Qaeda” in headlines has political consequences in our public debate. If it’s really that Al Qaeda, political pressure to use force in Iraq (and everywhere else) will build. If it’s something else – a group with different aims, a different focus – then our strategy may well and wisely be quite different.

Journalists trying to report from the nightmare of Syria and Iraq are doing a brave and important service; more than one has died trying to do it. But the headlines are misleading. We should all read more about what’s going on in Syria and Iraq. And if we don’t know what or who, we should be able to read that, too.

Mandela

by Deborah Pearlstein

Amidst all the more substantial reflections on the life of Nelson Mandela, it feels ridiculously trivial to keep thinking of my own fleeting moment of meeting him back in 1994. But keep thinking of it I do. I was a terribly junior staffer in the Clinton White House then, a writer and editor of presidential prose, at least for those texts unimportant enough for the more senior members of the staff to worry about keeping for themselves. Mandela was the newly elected President of South Africa, in town for an official state visit to the White House, and to address what turned out to be massive crowds in various other venues around town. He was a rock star.

It was a spectacular early fall day, and four or five of us juniors had ventured outside to loiter next to the small driveway that separates the West Wing from (what was then called) the Old Executive Office Building. Ostensibly, someone had wanted to smoke. In reality, as had to have been completely evident as the group edged toward the side of the drive that would afford the best view of Mandela addressing the press outside West Wing reception after he left his oval office meeting, we were hoping to catch a last glimpse. We weren’t disappointed – soon there he was, not 40 feet away, taking his place at the outside podium, calmly taking questions, saying who knew what to the similarly adoring press (we were too far away to hear the exchange).

The press was dispersing, and we were about to, too, when he turned away from his own waiting staff and began walking toward us, all by himself. Those long moments it took him to cross what seemed like far too great a distance to be worth the trouble, I kept thinking that there must be someone else, someone more senior, behind us. Or that one of my young colleagues was actually his secret godchild. Or anything that would reasonably explain why Nelson Mandela would take the time to walk an extra 40 feet in our direction. But it wasn’t any of that. He was just walking over to say hello. To shake our hands, each in turn.

When my turn came, I could barely remember my name. “And what do you do, Deborah?” he asked, shaking my hand, as gracious as anyone I had met – vastly more gracious than most I had met – in Washington so far. I must’ve said something because he gently nodded and laughed before moving on to my colleague. By then I was marveling at how gentle he seemed, how peaceful. And wondering how he and the President had gotten along. How he had approached the small talk in those conversations – the man on the one side whose ascendancy to the presidency had been a historically modest political triumph, the man on the other side who had become president by changing the world.

There was something else, too, that I couldn’t quite put my finger on at first. Not until he had turned to walk away. He had looked me in the eyes when he shook my hand – had done so to each of us I think. It was an unfamiliar sensation in professional Washington. Out in social D.C., folks would commonly look past me, over my shoulder to whomever was older, more interesting, more important. On White House territory, everyone’s gaze almost always flickered chest-ward on first meeting – to the security badge whose color distinguished the status of those who had access to the West Wing from those who didn’t. One could explain Mandela’s difference in this regard easily enough I suppose. He didn’t know the badge code. He had already met all the more senior people he needed to meet. Had no one at all he needed yet to impress. Had the gift of the greatest of politicians – the ability to make one feel as if one matters most in the world.

All of that is probably true. It is also true that he knew what it meant, human dignity. He knew what it was worth. And what was so very remarkable about him – he never stopped teaching by example.

CIA’s Approach to Drones?

by Deborah Pearlstein

If this is an accurate report, it doesn’t inspire confidence. According to Gordon Lubold and Shane Harris at Foreign Policy, the “migration” of targeting operations from the CIA to the Pentagon “migration of those operations has stalled, and it is now unlikely to happen anytime soon.” Such anonymously sourced reports always need to be taken with a grain of salt, especially so in circumstances like these, where turf battles between agencies are involved. Indeed, in this article, two different current U.S. officials are quoted as insisting that the goal of transferring operations remains the same, and movement continues in that direction. And it suggests that the slow progression is in part due to ongoing operations in Pakistan, conditioned on Pakistani consent requiring that U.S. involvement remain covert.

All the same, this paragraph seemed especially troubling:

[T]he pitfalls of transferring operations reside in more practical concerns. The U.S. official said that while the platforms and the capabilities are common to either the Agency or the Pentagon, there remain distinctly different approaches to “finding, fixing and finishing” terrorist targets. The two organizations also use different approaches to producing the “intelligence feeds” upon which drone operations rely. Perhaps more importantly, after years of conducting drone strikes, the CIA has developed an expertise and a taste for them. The DOD’s appetite to take over that mission may not run very deep…. “The agency can do it much more efficiently and at lower cost than the military can,” said one former intelligence official. Another former official with extensive experience in intelligence and military operations said it takes the military longer to deploy drones — in part because the military uses a larger support staff to operate the aircraft.

Part of the reason why many of us have argued that whatever targeting operations we pursue should be transferred from the CIA to the military is because of our greater certainty that the military views itself as bound by IHL rules of targeting; has a deeper culture of training in and compliance with those rules; and has the professional and institutional infrastructure to support their maintenance. It is thus just such suggestions of different processes surrounding targeting that are most concerning. Do the differences alluded to here in “fixing” targets refer to the degree of certainty a targeter must possess that a target is a factually and legally appropriate, that pre-targeting collateral damage estimates are accurate? Is the greater “efficiency” with which CIA can operate a function of fewer layers of review, less participation by trained counsel and other advisers surrounding the operations, no obligation or habit of after action bomb damage assessments testing who we actually killed – all of which feature at least to some extent in military operations? (I summarize military procedures – at least as described by U.S. military doctrine – as part of my recent piece on process in targeting here.)

For all the work the administration, and the President in particular, has tried to do reassuring the public of the legality of its program – and all the work it has yet to do – this article doesn’t help.

Due Process in Targeting

by Deborah Pearlstein

It has been an eventful news week in the universe of U.S. targeting debates. Amnesty and Human Rights Watch released their reports detailing some of the civilian costs of drone strikes. A bit earlier, UN Special Rapporteur on human rights and countering terrorism, Ben Emmerson, issued an interim report on his findings thus far about targeted killing (though I think the greater significance of the report was his call for more transparency from key governments about the outcomes of the strikes). At risk of saturating the market, as it were, I wanted to flag my own white paper on the subject, just released today as part of the American Constitution Society’s issue brief series.

In keeping with the forum, the paper focuses on what U.S. constitutional due process requires of U.S. targeting procedures. Both the Administration and the Supreme Court have embraced due process – at a minimum for U.S. citizens – in assessing the legality of various U.S. uses of force against Al Qaeda and associates. This paper tries to think concretely about what due process-compliant targeting procedures would look like in this context. Among its conclusions:

Speaking of Evolving Approaches to Counterterrorism II

by Deborah Pearlstein

Further to the topic of how the U.S. can/should combat terrorism without, as President Obama puts it, “keeping America on a perpetual wartime footing,” Marty Lederman and Mary DeRosa have a post up at Just Security highlighting the recent U.S. operations in Somalia and Libya as examples of what that future might look like. Among its features, a preference for capture, interrogation and criminal trial in U.S. federal courts over more lethal forms of targeting. (This has indeed been the Administration’s position on how it approaches counterterrorism operations overseas for the past several years.)

Jack Goldsmith is skeptical about how much of a model captures like Al-Libi’s can be; he argues, among other things: “Capture operations in foreign countries will only be attempted when the foreign government consents (or its non-consent will not be a large political problem), and the target is high-value, and the threat of troop and civilian casualties is quite low. They will be attempted, in other words, very rarely, and thus the Article III criminal process for foreign terrorists will be used very rarely.”

On this point, I have to disagree with Jack. It was only a few months ago we were talking about, for example, the foreign capture and federal criminal prosecution of Sulayman Abu Ghaith, Osama bin Laden’s son-in-law. Then there was Ibrahim Suleiman Adnan Adam Harun, an al Qaeda operative captured in Italy and extradited to the United States last year. And Somali Ahmed Warsame the year before that. These cases were probably most unusual in that they drew any press attention at all. According to the Department of Justice, the United States has prosecuted hundreds of cases related to international terrorism since 9/11 — including 67 cases involving defendants captured abroad.
To the extent this approach can be carried out transparently and consistent with U.S. and international law – and it is certainly possible to do so – it is plainly superior to lethal targeting, indefinite (non-criminal) detention or military commission prosecution in terms of its tactical and strategic advantages for counterterrorism (retaining the ability to gather intelligence while incurring fewer costs in local public opinion) and in its ability to safeguard individual rights.

That said, the al-Libi case and others like it are not without concern. Set aside for the moment the very important questions of foreign nation consent to the conduct of such operations. (Where we undertake it without state consent, serious questions arise about compliance with international law. Since the 1990’s, part of the U.S. response to those questions has been to simply excuse the FBI from having to comply with customary international law in its snatch and grab operations overseas. Hardly an ideal solution.) Al-Libi is currently being detained, it appears, pursuant to the same statutory AUMF authority that has supported the Guantanamo detentions and many others post-2001. But most of those detainees – indeed, most “wartime” captures – are conducted without necessary contemplation of criminal prosecution. More to the point, they are conducted without the certainty of a pending criminal indictment. How long, as a matter of U.S. law, may he be held under these circumstances before being presented to a federal court? Criminal courts have been generous in tolerating substantial presentment delays – permitting lengthy interrogation without the presence of lawyers – in AUMF detention cases before the suspect is advised of his rights and questioning for purposes of gathering evidence that may be admissible in criminal trial is begun again. But the law here is not exactly crystal clear. As long as the AUMF remains on the books, the possibility of such detention remains. How long should uncounseled interrogation continue? Even assuming detainee treatment in such detention is ideal, what principles cabin its duration?

Then there’s the shelf-life of the AUMF itself. With apologies as ever for shameless self-promotion, I’ve just posted a piece on SSRN arguing that the AUMF must be construed according to IHL, that IHL under these (admittedly by-analogy) circumstances should be understood to permit detention only for “the duration of hostilities,” and that the “hostilities” authorized by that statute may soon be understood – as a matter of law application to facts – as at an end. Existence-of-war conditions are justiciable, I argue. They already matter – and are being litigated – with respect to the beginning of the conflict for purposes of charging defendants with war crimes in the military commissions. They will soon start to matter more when it comes to the important AUMF.

Speaking of Evolving Approaches to Counterterrorism

by Deborah Pearlstein

The recent raids in Libya and Somalia have, among other things, raises renewed questions about how the U.S. can/should carry out its counterterrorism operations without, as President Obama puts it, “keeping America on a perpetual wartime footing.” Delighted to say we’ll be taking up just that topic in an evening panel I’ll be moderating in New York next Monday. Public most welcome with an RSVP to floersheimercenter [at] gmail [dot] com.

Law at the End of War? Fighting Terrorism after Afghanistan
Monday, October 14, 2013, 6 p.m.
Cardozo Law School
55 Fifth Avenue, New York

Panelists:

Lt. Gen. David Barno (Ret.)
Senior Adviser and Senior Fellow, Center for a New American Security and Former Commander of U.S. Forces in Afghanistan

John Bellinger
Partner, Arnold & Porter LLP and Former State Department Legal Adviser

Mary DeRosa
Distinguished Visitor from Practice, Georgetown Law Center and Former Legal Adviser to the National Security Council under President Obama

Ali Soufan
CEO, The Soufan Group and
Former FBI Supervisory Special Agent

Responding to Marty Lederman on Somalia

by Deborah Pearlstein

Marty has a response up over at Just Security to my earlier post on the domestic and international law questions arising after the U.S. actions in Libya and Somalia late last week. Continuing the conversation, a few replies here.

(1) Is there a statutory source of domestic authority for the operation in Somalia? Marty’s theory is that the AUMF may well suffice to authorize the attack if the subject was (in addition to being part of Shabaab) a member of Al Qaeda. I suppose it’s possible that’s what was going on here, and there’s surely more we need to know. On the other hand, that doesn’t seem to be part of the emergent leaked story. According to the Times, sourced to a senior American security official, a Navy SEAL team “exchanged gunfire with militants at the home of a senior leader of the Shabab, a Somali militant group. The raid was planned more than a week ago, officials said, after a massacre by the Shabab at a shopping mall in Nairobi, Kenya.” I haven’t heard any reports suggesting the recent mall attack was the work of Al Qaeda (or even Al Qaeda-friendly Shabaab associates), but was rather a direct retaliation against Kenya for its role in intervening in the ongoing and infinitely messy Somalian civil war. Beyond the AUMF, there’s the possibility I suppose that the President was acting pursuant to existing power under, say, 50 U.S.C. 413b to undertake covert action operations. But I’m not sure even that broad definition fits what’s known of the facts here. By statute, “covert actions” are “activities” by the U.S. government “to influence political, economic, or military conditions abroad, where it is intended that the role of the U.S. Government will not be apparent or acknowledged publicly.” Among other things, given the rapidity of the “senior official” leak here, it doesn’t exactly look like the USG was especially worried about keeping its role quiet. That brings us to…

(2) Is there a constitutional source of domestic authority for the operation in Somalia? I don’t think one needs nearly as broad a theory of Article II power as Marty or Bobby Chesney seem to think would be required to justify a limited, proportional strike against the apparent perpetrators of the armed attack that injured American nationals abroad here. You need only as much authority as President Clinton claimed in the 1993 strike at Iraqi intelligence headquarters in Baghdad following the attempted assassination of former President Bush; the same degree of authority Clinton again asserted in the strikes against Afghanistan and Sudan following the embassy bombing attacks in 1998. In other words, you need a theory of presidential power that says the President has some inherent authority to respond to attacks against the U.S. or its nationals in self defense. Why more?

(3) As for the international law issues, we’ll have to wait and hope it is someday revealed whether Libya in fact consented to the U.S. capture operation in its territory. Current reports perfectly conflict on that score. If there was no consent, as Marty recognizes, the U.S. action would apparently violate UN Charter art. 2(4). But that’s not all it would violate. International human rights law – embodied in treaty and custom – prohibits, for example, kidnapping, or arrest without legal authorization. To the extent the U.S. is bound by those rules (and there’s good reason to think it is), I don’t see how the analysis of U.S. conduct under these laws are affected one way or another by what Marty suggestions – namely, Libya’s consent.

The Raids in Somalia and Libya – Theories of Self Defense?

by Deborah Pearlstein

As all major news outlets have now reported, the U.S. carried out two armed raids overseas late last week: one in Tripoli that resulted in the successful capture of suspected core Al Qaeda leader Abu Anas al-Liby, and another in Somalia apparently aimed at a leader of militant Somali group Al Shabaab. Both raise complex questions of U.S. and international law. Here’s a quick first take. Bottom line: Both are probably justifiable under domestic law, but pending some facts, the Al Liby seizure may be deeply problematic under international law.

Al-Liby has been under indictment in the U.S. since 2000 for his suspected role in helping to plan the U.S. embassy bombings in Kenya and Tanzania back in 1998. The indictment, available here, alleges his involvement in the conspiracy (and his participation in Al Qaeda) dates as far back as 1993. The AUMF authorizes the use of force against any organization the President determines responsible for the attacks of 9/11. Core al Qaeda is that organization; al Liby seems by all accounts to have been a central part of it. Assuming the United States moves with reasonable speed to bring al Liby here to stand trial on his criminal indictment, the Supreme Court has been (remarkably but consistently) clear that trial may proceed even if the defendant was effectively kidnapped to bring him here.

On the international law side, it’s trickier. The theory that there is an ongoing non-international armed conflict between the United States and Al Qaeda has never found acceptance outside the United States. Still, the United States has a powerful argument that the attack on its embassies was an “armed attack” within the meaning of UN Charter, art. 51, triggering a U.S. right to resort to military force in self-defense. In this respect, the decision to capture al Liby (and the operation directed in an apparently quite targeted way against him) looks like a quite proportional response. This nonetheless leaves two potentially significant international law problems: (1) If the United States actually lacked Libyan consent to the operation (as Libya seems, at least publicly, to maintain), the United States violated Libyan territorial integrity in carrying out the operation, a breach of UN Charter, art. 2(4). (2) Most scholars recognize an international law requirement that responses in self defense be timely. Whether one sees this as a necessary reading of art. 51 itself (recognizing a right of self defense only until the UN Security Council has had time to act), or a function of customary international law or both, the idea is that while states are certainly permitted some reasonable amount of time to determine an appropriate response and carry it out, a one-time attack doesn’t give a state a right to respond with armed force against the attacker for the rest of geopolitical time. Perhaps under the circumstances here the extraordinary delay is reasonable – it took a long time to find al Liby, and once we did perhaps we first pursued more peaceful efforts to extradite him to the United States. Perhaps. Another set of facts it would be helpful to know. In the meantime, the general question remains: how long could the U.S. plausibly use attacks from 1998, or even 2001, to justify new “self-defense”-related uses of force?

The attack in Somalia is a tougher case domestically. Al Shabaab, born well after 9/11 as a domestic Somali insurgency of sorts, and only recently (and to an indeterminate degree) allied with whatever remains of what is now called Al Qaeda, is not nearly as obviously covered by the AUMF. Does the President have inherent authority under Article II of the Constitution to use armed force in such circumstances? The vast majority of constitutional law scholars recognize the President has at least some right to use force without congressional authorization if he is acting in national self-defense. Here, the New York Times reports the Somalia raid was planned after the attack by al Shabaab at a shopping mall in Nairobi, Kenya, that killed more than 60 people two weeks ago. A handful of American nationals were injured in that attack. Of relevance here is what appears to be the emergent custom in international law to permit limited, proportional uses of force to protect a nation’s citizens under attack abroad. If one embraces the view that the President’s powers under Article II of the Constitution should be at least co-extensive with that force authorized under international law, then the President here might be on reasonable ground. The mere permissibility of a use of force under international law has never been thought to be a substitute for affirmative authority under domestic law. But imagine if the al Shabaab attack in Kenya were still underway; assuming the permission of the Kenyan government, there would seem little doubt the President would have inherent Art. II power to use force in the interest of protecting the U.S. nationals threatened in the attack. Does the brief passage of time here make a difference from this perspective, assuming the U.S. attack was the limited, one-off response it appears to be? Not clear that it does.

For these reasons, the attack on Al Shabaab may be quite a bit easier to justify under international law than is the seizure of al Liby. The issue of Somali consent remains – and it is here likewise unclear what Somalia permitted or not. But given the relative silence so far from the Somalia government, such as it is, it may be they were willing to have the U.S. there.

On the Draft Security Council Resolution

by Deborah Pearlstein

As Ken notes below, the draft UN Security Council Resolution regarding the disposition of Syria’s chemical weapons is now available. While it can’t be construed as authorizing the use of force against Syria to ensure compliance without further Security Council action – entirely consistent with the Council’s past practice in Iraq, Kosovo, and elsewhere with slowly escalating Security Council threats and then reality of sanctions it decides to impose – marks an obvious and large step forward in what had, until a few weeks ago, been a seemingly intractable disaster. Not that the disaster is over. Hardly. But the series of steps Syria has already taken to comply with the U.S.-Russia accords providing for the removal of chemical weapons, and the reality of any Security Council action at all given the P5’s diverse political interests in the region, is a remarkable achievement.

Beyond those Ken mentioned, another passage of the draft resolution seems worth highlighting:

Encourages Member States to provide support, including personnel, technical expertise, information, equipment, and financial and other resources and assistance, in coordination with the Director-General of the OPCW and the Secretary-General, to enable the OPCW and the United Nations to implement the elimination of the Syrian Arab Republic’s chemical weapons program, and decides to authorize Member States to acquire, control, transport, transfer and destroy chemical weapons identified by the Director-General of the OPCW, consistent with the objective of the Chemical Weapons Convention, to ensure the elimination of the Syrian Arab Republic’s chemical weapons program in the soonest and safest manner.

What does this mean? Without seeing the OPCW’s plan, it’s hard to tell exactly. But it leaves little doubt Member States (like chemical weapons disposal experts the U.S. and Russia) now have the authority to send personnel (including presumably support for their security) into Syria to “acquire, control, transport, transfer and destroy chemical weapons.” Do U.S. Army Explosive Ordinance Demolition teams count as “boots on the ground”? If they get killed, captured, or gassed in the course of their work, hard to see how not.

More on the Syria AUMF

by Deborah Pearlstein

In about the time it took the ink to dry on Peter and Jack Goldsmith’s helpful analyses of the import of the draft Senate resolution to authorize President Obama to use force in Syria, the Senate Foreign Relations Committee approved it, by a close vote of 10-7. The bill now goes to the full Senate for debate and vote; Rand Paul is evidently threatening to filibuster. Then of course the House yet needs to debate and pass its version of an authorization bill. So much for the notion that the Senate is institutionally incapable of moving with dispatch.

A few points I want to add and/or emphasize on the draft AUMF, in no particular order.

(1) The Senate version is narrower than the Administration’s initial proposal principally insofar as it limits the use of force to targets in Syria. (The Administration version would’ve allowed targeting sites anywhere in the world so long as they were legitimate targets “in connection with” the use of chemical weapons in the Syrian conflict. But to be clear, it does not prohibit the use of ground troops – only “combat troops,” a description that leaves room for rescue operations, as well as training and intelligence missions of various kinds. It also imposes no restriction on the President’s existing, substantial, and apparently already-in-use power to order various U.S. assets to the region under, for example, statutory covert action authority. On the effect of the time limit contained in the draft AUMF, I agree with Jack; the statute addresses the limits of this particular statutory authorization, it does not impose any limits on what inherent presidential power may exist under Article II of the Constitution to use force all independent of congressional authority. (Recall, pretty much everyone, me included, thinks the President has at least some inherent Art. II power to use force. Large questions remain over just how much constitutional power this is. I don’t think the non-binding and hortatory “whereas” clauses at the beginning of the operative language of the AUMF do much work one way or another in shedding light in this regard.)

(2) The Senate version, like the Administration’s proposal, is unfortunately obscure about what exactly it means “weapons of mass destruction.” The definition of the term is no small matter. The Senate would authorize the President to use military force “he determines to be necessary and appropriate in a limited and tailored manner against legitimate military targets in Syria, only to respond to the use of weapons of mass destruction by the Syrian government in the conflict in Syria,” to deter Syria’s use of such weapons, and to degrade Syria’s capacity to use those weapons in the future. What are “weapons of mass destruction”? The UN definition, adopted not long after World War II and sustained through various committee structures and resolutions since, limits the category to chemical, biological, nuclear, and radiological weapons. Under some U.S. law, for example, U.S. criminal laws prohibiting the use of WMDs, the term is defined much more broadly to include pretty much any explosive device. In this context, I suspect (and hope) Congress means to limit its authorization to the UN version of WMDs. For a host of reasons, it would be helpful if it made that point clear.

(3) There is one other potentially important limit/difference between the Administration’s proposed authorization to use force and the version the Senate Foreign Relations Committee just passed. Among the Senate version’s requirements: “Before exercising the authority granted…, the President shall make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that… the United States has used all appropriate diplomatic and other peaceful means to prevent the deployment and use of weapons of mass destruction in Syria.” This strikes me as a potentially useful requirement, that could be strengthened further if the Senate were serious. At the moment, it only requires presidential certification that he has used all “appropriate” non-force means. That leaves the President with substantial discretion. The Senate could actually require some action – including economic or aid measures – the administration has not yet taken. This would not preclude military force. But it would put another, even minor, hurdle, along the path to what is starting to feel like a bit of a dash to action.

Another Set of Syria Views on Huff Post

by Deborah Pearlstein

For those still following along, an interesting array of views on the Syria situation in a conversation this afternoon on HuffPost Live, including Michael Scharf, Jules Lobel, Eric Posner, and yours truly. Would that the link went back a bit farther, you could listen in on a lively Miley Cyrus debate as well.

Syria Insta-Symposium: The President’s Wise Decision

by Deborah Pearlstein

As an adherent of the view that the Constitution requires congressional approval before the President can use military force (other than in certain circumstances of national self defense), I think the President’s decision to seek authorization from Congress was legally required. While Marty is right that presidential practice has at times been otherwise, I don’t think that practice should be understood to alter the otherwise clear import of the Constitution in generally requiring the engagement of more than one branch of government before the United States uses force. Presidential practice past, however, has been relied on by many presidents to justify their circumvention of the requirement to go to Congress. And Congress has, often to its shame, shirked its responsibility to engage more. That President Obama did not follow this well trodden path is thus to his great credit. In this respect, I agree with the basic premise of Peter’s post: the decision was remarkable.

I don’t think I agree, however, with Peter’s expressed concern, which seems to be that because the requirement of getting congressional authorization makes it less likely the U.S. will use force “in these kinds of situations,” this is a bad development for “the global system generally.” Of course, making it hard for the U.S. government to go to war was precisely why the Constitution’s framers thought it wise to bifurcate the war-making power between the branches (as John Hart Ely, among others, eloquently demonstrated). The instinct wasn’t complicated: war is brutal and costly and should be presumed to be rarely in the national interest. But let’s set aside that history for the time being as, one might reasonably argue, the conclusion that emerged from a time in which the United States was young and weak, and in which the world was a categorically different place from the world we live in today. What are “kinds of situations” like these that Peter thinks it should be less difficult than that for the U.S. to use force? Some of the examples he cites – Reagan in Lebanon, Clinton in Somalia – don’t seem to me like great illustrations of good things coming to the global system from unilateral presidential intervention. Other examples one might recall – Reagan in Libya, Clinton in Sudan and Afghanistan – fall I think more evidently into the category of national self defense – a category of justification for unilateral presidential action I do not see as touched at all by President Obama’s decision to go to Congress here.

A better, and much more challenging, example is something like NATO intervention in Kosovo – where the humanitarian situation was horrifying, rapidly worsening, and the UN Security Council unwilling to act. There, the Clinton Administration acted without either advance congressional approval or Security Council authority – an agonizing and self-conscious decision to violate the prevailing law for the purpose of accomplishing what it concluded was a more important end: preventing an ongoing massacre. I found it a very difficult question but ultimately agreed with intervention then. Not unlike Robert Cover’s judges of the slavery era south – torn between a clear legal and professional duty to enforce a law they believed led to a morally abhorrent result – anyone who has ever contemplated civil disobedience recognizes that circumstances may arise in which the profound value of protecting and observing the rule of law comes into conflict with another value, also profound, the protection of which one might reasonably expect to be served by the law’s violation.

But for reasons I alluded to in an earlier post, it’s not at all clear to me that the proposed U.S. use of force in Syria is particularly aimed at the alleviation of human suffering. The President’s stated purposes here – focused largely on accountability for Assad’s past action and deterrence of any future use – coupled with his stated commitment to keep the use of force short and minimal, make it hard to credit the idea that such a U.S. use of force would have the effect (or has the purpose) of ending the humanitarian disaster there (now underway for 2+ years). On the contrary, a limited use of force may provoke retaliation against Syrians or other countries in the region; Assad seemingly has no compunction about using any means at his disposal to preserve power. At the other end of the spectrum – if U.S. intervention causes the regime to collapse, it’s hard to see how we don’t face a greater danger of the dispersal of chemical weapons in the regime’s control, as warring factions fight for power in post-Assad Syria. If we could just destroy the weapons themselves, that might be one thing. But blowing up chemical weapons of course risks a far greater disaster than the one already apparent on the ground. One could go on.

For now, the point is twofold: (1) There’ve been plenty of past U.S. interventions on unilateral presidential authority that have not gone well, for the United States or the global system. (2) There are plenty of reasons to fear this is one of those instances that also will not go well – such that it makes it at a minimum worth debating in a full and democratic way (i.e. with Congress), whether or not force in Syria is the right next step to take.