Remarkably big news week last week in U.S. law and security matters – alas one that happened to coincide with the final week of our law school semester. So with apologies for belatedness, I wanted to catch up on a few things I missed, starting with the military commission trial of some of the accused conspirators in the attacks of September 11. I have yet to read an account of the opening day that thought it went at all well. Andrew Cohen’s description at The Atlantic I thought was well done.

So a friend poses the question – given the defendants’ intransigence, their determination to be disruptive, defense counsel’s many objections, the extraordinary public attention, the widely known fact that defendant Khalid Sheik Mohammed was tortured, and so forth – would things really have gone any differently had this trial been in a regular criminal court in, say, New York City. It’s a good and fair question. And I think the answer is – yes, things likely would have gone differently. And it has nothing to do with the differences in commission vs. criminal court rules.

Criminal defendants act out and/or refuse to participate in their defense with some regularity. In Article III courts, as in the Southern District of New York, where the Administration once planned to pursue the prosecution, judges have, and regularly use, a range of lawful tools to keep order in the courtroom. Federal judges are able to do this because they are aware such tools are available; their experience tells them they can work; their sense of the judicial role includes an understanding that their job is in part to help ensure the smooth administration of the process; and their confidence in the judicial system – and their knowledge of the public’s at least general confidence in the system – makes it possible for the judges themselves to feel confident in their own power to exercise a reasonable, constrained degree of professional discretion. I cannot picture a 13-hour arraignment in SDNY.

The presiding judge in the military commission trial, Col. James Pohl, has, according to press accounts, presided over previous military trials. I can completely believe in Judge Pohl’s good faith, and even assume every decision he makes is within the letter of the law. And I still come away thinking this trial is a bad idea. The policy argument against military commissions – that they’d never be perceived as just/legitimate given their deeply troubled past – is not just an argument about what the rest of the world thinks. It’s an argument about how the knowledge/fear of that perception is likely to skew everything that happens inside the courtroom. Col. Pohl is as conscious of this as the rest of the courtroom players. They all share an inescapable handicap. They all have something to prove.

My earlier post on executive power generated some good, thoughtful comments. I wanted to highlight Charlie Savage’s in particular (he’s the author of the New York Times article I’d mentioned, please see his comment in the section below), and take a moment to offer a few thoughts in response.

Charlie’s concerns are basically twofold. The first is that I’m unfairly characterizing his article by suggesting that it seems to analogize Obama’s assertions of executive power to the claims of executive power made by the Bush Administration in the context of national security. He of course is right that his article at one point does note the important distinction between Bush’s claims and Obama’s. Despite this, Marty Lederman and the Times’ own Andrew Rosenthal and I all independently seemed to read the piece in much the same way – i.e. as suggesting that there was something comparable in Bush’s embrace of executive power and Obama’s, and that this might have something to do with national security. Why did I read it that way? I think it had to do with context and emphasis.

Here’s what I mean. Having read The Times (and other publications) on the topic of executive power in recent years, it seems to me difficult to compare the administrations’ respective approaches to executive power writ large while ignoring the context in which the comparison exists – i.e. a mammoth decade-long debate about executive power in national security. Neither the article’s headline nor the opening 8-9 paragraphs of the article do anything to suggest that by “executive power” the article intends to exclude or somehow except questions of national security from the general thesis that Obama had changed his views on executive power. On the contrary, the passage from the article that I quoted in my original post seemed to me to reinforce the idea. “As a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress…. But increasingly in recent months, the administration has been seeking ways to act without Congress.” My recollection of the campaign – admittedly far from perfect so I’ll welcome corrections on this account – is that Obama’s central criticism of Bush’s use of executive power was to do with Bush’s use of executive power in matters of national security. In particular, on the torture and surveillance issues Charlie’s article mentions. If I’m right about this (the nature of Obama’s campaign criticisms of Bush), and Charlie’s right that he didn’t mean to touch on executive power in matters of national security, then I’m not sure what relevance there is to mentioning Obama’s campaign criticisms of Bush in the article.

Which brings me to Charlie’s second concern – that I might have inadvertently linked to the wrong Lawfare post in referencing Jack Goldsmith’s take on the article. Actually, I linked to the Goldsmith post I intended – namely, Jack’s first post about the Savage article, which read in its entirety:

Charlie Savage has a story today about how the Obama administration, stymied in Congress and seeking ways to accomplish policy goals, has “increasingly in recent months . . . been seeking ways to act without Congress.” This was a predictable turn of events and one that, as Savage’s story notes, follows a standard historical pattern.

Jack writes of course for the Lawfare blog – a blog entirely devoted to questions of law and national security. Suggesting he seemed to think the article had some bearing on executive power in that realm as well. Indeed, he saw the article as supporting one of the central theses of his recent book (and regular public talks) – namely, that it is a standard historical pattern for presidents to seek to expand their power in matters of national security. It was this claim I was responding to – arguing that it was descriptively problematic – in the latter paragraphs of my earlier post.

So what would I have done differently? (I hesitate here, this is after all why I’m a law professor and not a journalist.) But I might have led the article with a sentence that made clear the very limited category of “executive power” the article actually engages. And as a reader, I might have been interested in a better historical understanding (by which I mean a quote from a campaign speech or platform or the like) of how Obama’s use of, say, executive actions involving administrative agencies, actually reflects a change in his views of power, rather than just a difference in tactical approaches pretty much every president has embraced once they’ve lost a majority of the Congress. I’m not sure the piece would have been quite as newsworthy so framed. But I guess I think it would have been clearer.

Charlie Savage’s odd article in yesterday’s New York Times prompted another exchange in the ongoing conversation about whether the Obama Administration’s assertions of executive power can be meaningfully distinguished from those of George W. Bush. Savage’s article is headlined in such a way, and otherwise seems to suggest that Obama’s recent reliance on executive orders to accomplish various policy changes (in, for example environmental regulation) is analogous to the Bush Administration’s claims that it could exercise executive power to change various policies and laws in the counterterrorism realm. (Savage writes, for example: “As a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress…. But increasingly in recent months, the administration has been seeking ways to act without Congress.”)

Marty Lederman does his usual lovely job at Balkinization of explaining why the equation of these practices as similar in their views of executive power is wrong. Critically, for example, the most troubling assertions of executive power in the Bush Administration – for example, the power to torture despite federal laws prohibiting it – were truly claims of unilateral authority. That is, the claim that the President could order torture even when Congress has said it’s illegal. The Savage article, in contrast, is almost entirely focused on Obama’s use of executive orders to carry into effect powers that Congress has delegated to the President to use. That is, essentially the opposite behavior.

Jack Goldsmith nonetheless views the Savage piece as fodder for his book’s claim that executive power invariably expands over time, and that while Obama maybe held back in his first few years in office, even Obama is now seeing the light, as it were. As I’ve written in some detail elsewhere, there are a set of ways in which the Obama Administration has recognized constraints on its power that the previous administration did not. Some examples. The Obama Administration’s early executive order on interrogation, still in effect, recognizes the binding applicability of Common Article 3; the Administration has argued that international law should inform the interpretation of its detention power (a view to which the D.C. Circuit has, remarkably, not deferred); the Administration won an amendment to the Military Commissions Act (MCA of 2009) entitling detainee-defendants to raise Geneva Convention-related defenses in the course of their trials (a set of claims the MCA of 2006 had barred); the State Department has announced an intent to seek to ratify Geneva Additional Protocol I. Perhaps most significant, though, the Congress has sought to impose remarkable constraints on the President – I’m not aware of any historical precedent – including the prohibition on transferring Gitmo detainees to the United States for prosecution. And the President has, in fact, complied with them.

None of this is to suggest I’m a fan of everything the administration has done in this realm, or even that it’s clear exactly what the President thinks is the scope of his power under Article II. (Here, for example, I raised questions about the scope of Article II power the Obama Administration is asserting in its targeted killing programs.) Rather, it’s to suggest that Jack’s descriptive claim that executive power simply and inevitably expands over time I think ignores the various ways in which that has not been true. If I were trying to describe what’s happened in the past four years, I’d say, more modestly, that sometimes, some executive powers expand, and sometimes, some others do not. Where does this get us? Well, at least to the point of asking a better question. Like why does power sometimes expand, and why, more interestingly, does it sometimes not?

I had the pleasure of attending a terrific conference at Duke this past weekend, hosted by the Center on Law, Ethics and National Security. My panel addressed perennial questions about whether the courts should defer to the executive on questions of national security (on which more than you want here), but there were terrific sessions on, among other things, lessons learned from joint international military operations, with officers from US, Canadian, UK, and Australian armed forces; about IHL/human rights law issues in targeting, detention, and cyber (the last with Dick Jackson, Laurie Blank, and TJAG of the Navy Adm. Houck); and about the many ways in which corporations are confronting national security issues. I’m told video of the panels will be available soon.

Perhaps the most remarkable session, though, was the dinner talk given by General Michael Hayden, who held, among other positions, the job of CIA director during the George W. Bush administration. The talk was delivered to a dinner hall of at least 100 people (I suspect more), including a range of academics, many serving and retired members of the U.S. military (and some of our allies), members of the Durham community, etc.

Hayden was deeply skeptical of Obama (for some combination of what Hayden saw as hypocrisy and naiveté), aggressive in his defense of Bush-era detention and interrogation programs, and strikingly candid in describing his role and the depth of his support for the CIA’s involvement in these endeavors. It seems worthwhile briefly summarizing his remarks in sense and sensibility here.

To some extent, the speech’s greatest rhetorical flourishes were phrases we’ve heard before. As Hayden described, he set his course according to the CIA’s “vision statement” that “ye’ shall know the truth, and the truth shall set you free.” Our counterterrorism efforts require the engagement of “rough men,” the ones who make it possible for us (as Orwell, and then Churchill, and later, Jack Nicholson, put it) to “sleep safely at night because [they] stand ready to visit violence on those who would harm us,” and who (this is Hayden now) “go where others cannot go, and do what others cannot accomplish.” This conflict is especially novel in its needs for such “rough men” because our enemy this time doesn’t follow the Geneva Conventions, and because we can’t, as Hayden put it, “define who the enemy is.” Thus, what we need are men willing to get “chalk on their cleats” in walking at the edge of the boundaries set by the law on detention, interrogation, etc.

It was difficult to take notes without editorializing. I had thought, for example, that many of our past enemies had also failed to abide by the Geneva Conventions. (The Vietcong comes to mind.) I’m likewise not sure how it is one wages a war without knowing, with at least some specificity, who the enemy is. The football metaphor was at least familiar from Hayden’s previous public statements. But I hadn’t fully understood that in Hayden’s version of the game, the object seems to be all unrelated to, say, scoring a touchdown, but is rather more about getting chalk on one’s cleats as a matter of first principles.

Confronted as CIA Director with the courts’ increasingly vigorous engagement on these questions, Hayden was scathing in his criticism of Justice Stevens and his opinion for the Court in Hamdan. That case of course held, among other things, that Common Article 3 applied in the armed conflict with Al Qaeda, at least as it played out (as CA3 puts it) “in the territory of” Afghanistan. In response to this and other judicial decisions, Hayden recounted encouraging his subordinates to buck up: “We’ve been kicking their asses in FATA [describing the volatile tribal region in the northwest of Pakistan], we’re going to kick their asses here too” in the habeas cases the courts allowed to proceed.

As for the use of interrogation techniques the U.S. authorized (techniques CA3 would seem to prohibit), from slapping prisoners to waterboarding, Hayden expressed the view that he believes those actions lawful, and indeed that it would have been “selfish” for him not to support such measures being taken. For then he would have been putting his own personal concerns (namely, it seemed, a fear that one might later be held legally liable for such actions) above those of the nation. “Democracies cannot wage war over the long term on the basis of strict legalisms,” he said.

Finally, as part of his recurring criticisms of Obama and his staff, Hayden strikingly chose to describe some of the exchanges he had with then President-elect Obama when Hayden went to Chicago to brief Obama on various matters in December 2008. He even recounted some of the questions the President-elect put to Hayden in these briefings.

I would’ve thought the content of such meetings confidential. Or perhaps not.

Michigan Law Review is out with its Annual Survey of Books in the law, and while the self-promotion is awkward at the least, it feels a bit more in the interest of full disclosure (given what I’ve blogged about here in the past) to note that the issue includes my review of Ben Wittes’ latest book, Detention and Denial. A version of the review is accessible without subscription here. As I note in the review, a lot has happened on the detention front since Ben’s book was published – centrally including the whole debate over the passage of the NDAA, new federal legislation that had aimed (and ultimately failed) to do what Ben advocates in his book: detail the scope and nature of U.S. detention authority in war and counterterrorism operations. At the same time, there is little sign that Congress (or any of the other branches) will be out of the detention business entirely anytime soon. So for those who follow these debates, and those thinking through what detention policy should be after the United States hands its Afghanistan detention operations over to the Afghans in September of this year (the MOU is here), I summarize and critique the policy arguments Ben makes in favor of broad forward-going detention authority, and in favor of even more vigorous involvement by the legislative branch.

The speech delivered by CIA General Counsel Stephen Preston at Harvard yesterday is important and illuminating, and I agree with Ken the administration should be commended for it. But wow does it raise some troubling questions about how the CIA understands the legal authority for and constraints on its drone operations. There’s too much to unpack in it for one blog post, and I’d urge those who follow these interests to read it for themselves. Meantime, I’ll start with two issues: (1) the CIA’s understanding of its domestic authority to use force; (2) the CIA’s understanding of whether/how international law constrains its actions.

Domestic authority. Preston correctly explains that the CIA must have some source of authority under domestic U.S. law to carry out “hypothetical” activities involving the use of force abroad. In this inquiry, of course, international law is irrelevant. And I don’t read Preston to suggest that international law can give the U.S. government powers it does not otherwise possess under our own Constitution and laws. So what gives the CIA its authority to carry out drone strikes? Here’s Preston:

“First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.”

Several points. Preston leads with – giving the impression that it does not only some but significant lifting in authorizing CIA actions – the President’s power under Article II of the Constitution. The non-reliance on Article II as an independent font of authority in U.S. counterterrorism operations – as opposed to statutory authorizations with specific limits – has been one of the central ways in which the Obama Administration has distinguished itself from the Bush Administration, which claimed sweeping authorities under Article II. So seeing it feature prominently here is striking. There are, important to emphasize, important differences between this invocation of Art. II power and Bush’s. Preston cites the President’s Art. II power to, as the framers put it, “repel sudden attacks.” There are few who would doubt the existence of such a power, and the Supreme Court has recognized it in various ways back to the Civil War era Prize Cases. This is in principle a narrower claim of authority under Article II than the (Bush) claim that Article II generally gives the President the power to detain people, interrogate them, and tap their phones as long as we’re in a state of armed conflict. How much narrower? Narrower at all? It depends a heck of a lot on what counts as “an imminent threat of violent attack.” How imminent does it have to be? Something more clear and specific than the general state of threat we face from, e.g., Al Qaeda? If a generalized threat from a group that’s attacked us at some point in the past is enough, then I confess I’m not sure how to distinguish this from the Bush-era understanding of Art. II.

Presumably Preston fronts the Art. II authority in part because CIA thinks that the statutory powers on the books don’t suffice to authorize all of the uses of force the CIA has carried out under its drone program. Indeed, the list of powers, Constitutional and statutory, is framed strangely. Preston says CIA first would make sure the action is authorized by the Constitution. And then notes, in quite different terms, “also” or “in addition” that statutory authority might exist. As if CIA doesn’t actually see the statutes as independent sources of authority. Do we take from this that CIA sees all of its use of force authority as coming from Article II, and the statutes on the books are just regulations, not themselves relevant sources of authority?

In particular, Preston doesn’t mention the 2001 AUMF expressly (which all 3 branches of government have interpreted as authorizing a global war against Al Qaeda). I can imagine 2 reasons why he might not want to get into the AUMF. One, the force authorized by that statute is limited to the groups who attacked us on 9/11, and some of the CIA’s targeting operations (it appears from press reports) have been aimed at individuals or groups who are only very arguably connected to those attacks. Is Al Shabab, for example, born as a domestic Somali insurgent group, really one of the organizations Congress meant to reach in its 2001 AUMF? Dicey to claim so. But we seem to be targeting some of their members anyway. Two, the administration has taken the position in court and elsewhere that international law, including the law of armed conflict, should inform the interpretation of (and, it would seem, constrain the use of) what force is authorized under the AUMF. But the CIA seems to have a different view of the applicability of LOAC, on which more below. So I can see why they wouldn’t want to rely on AUMF if they can help it. Which brings us to…

International law. Is there anything in international law – law of war or customary international law – that the CIA thinks it is bound to comply with as a matter of law (as opposed to, say, sensible policy or practice)? My read of this speech is that the answer is no. I would be very happy to be contradicted. The key sentences are described as a question of “compliance in execution with reference to international law principles.” And I’m not sure what the word “principles” is doing in there except to soften the notion that many of the relevant rules that might apply are simply law – indeed, when it comes to treaties the United States has signed and ratified, “supreme law of the land” under the Constitution. Here’s the relevant paragraph in its entirety:

“Here, the Agency would implement its authorities in a manner consistent with the four basic principles in the law of armed conflict governing the use of force: Necessity, Distinction, Proportionality, and Humanity. Great care would be taken in the planning and execution of actions to satisfy these four principles and, in the process, to minimize civilian casualties.”

If the past decade has taught us anything, I’d kinda think it’s this: Pursuing a policy “in a manner consistent with” the law is not the same as pursuing a policy that is bound by the law. So what’s going on? And now we enter the realm of pure speculation, but I guess that’s what blogs are for. So here’s what I imagine. I imagine that the CIA is targeting two kinds of people: (1) those it believes are participating in the armed conflict the United States has defined (i.e. a war against Al Qaeda and associated forces), and (2) those who are not plausibly understood as part of that armed conflict.

If the United States is targeting people in category (1), we are bound, as a matter of law, to comply with the law of armed conflict, which of course include, as a matter of law, the Geneva Conventions containing the rules Preston lists. We may well be complying with those rules – both the military and the CIA – that is, for example, not violating rules of proportionality in targeting. But even if we are complying with those rules – and boy do I wonder if and to what extent the CIA agents are trained in them – if agents of the CIA are pulling the trigger, I would think they may then be subject to criminal prosecution by domestic or foreign (or, if a tribunal with jurisdiction came to exist, international) courts for unlawful acts of violence they commit as unprivileged belligerents. CIA civilians are not members of our armed forces, and do not otherwise (as far as I know) meet the criteria under GCIII, Article 4 to lawfully participate in hostilities. So I can see why the CIA might be loath to acknowledge the applicability of these rules as law. But apply as law they do.

As a matter of international law – specifically, the UN Charter, to which we are a party, and which Preston cites – the United States may not lawfully target people in category (2) (i.e. those not part of our already quite broad armed conflict) unless it is exercising the “inherent right of individual or collective self-defence if an armed attack occurs …, until the Security Council has taken measures necessary to maintain international peace and security.” In the clearest summation of what the United States thinks that means that I’ve seen of late, Preston says that right includes, “for example, [where] the United States has already been attacked, and its adversary has repeatedly sought to attack since then and is actively plotting to attack again, then the United States is entitled as a matter of national self-defense to use force to disrupt and prevent future attacks.” Now there’s a ton to say solely on the question of whether this is a fair interpretation of the right of self-defense. But let’s assume for the moment it is. The rules that govern the exercise of that use of force in self-defense – i.e. how much force can you use, against whom, under what circumstances, etc. – are not only “principles.” They are customary international law, even by, I’d long thought, the estimation of our own government. So why not just say, at the very least, the CIA is bound by the customary international law of “Necessity, Distinction, Proportionality, and Humanity” governing the use of force? On this point, I have reached the limit of my imagination.

The past few weeks have seen some resurrection of the old claim that targeted killing operations have increased under the Obama Administration because detention of participants in armed conflict (as the United States defines it) has become too fraught with legal difficulty. Jack Goldsmith has been making that causal claim on the speaking circuit for his new book, Power and Constraint: The Accountable Presidency After 9/11. And this week the Wall Street Journal joins the bandwagon, writing that the “Obama Administration kills every terrorist with missiles from the sky because it fears political embarrassment from holding them.”

Let’s ignore for a minute the chronic lack of public (or, as far as I can tell, non-public) empirical support for the claim that this accurately describes the motives or reasoning process of any relevant decision-maker inside the U.S. government. We could also ignore the public statement of White House counterterrorism adviser John Brennan, who called this notion “absurd” in his Harvard speech last September. As he put it then:

“Nevertheless, some have suggested that we do not have a detention policy; that we prefer to kill suspected terrorists, rather than capture them. This is absurd, and I want to take this opportunity to set the record straight. As a former career intelligence professional, I have a profound appreciation for the value of intelligence. Intelligence disrupts terrorist plots and thwarts attacks. Intelligence saves lives. And one of our greatest sources of intelligence about al-Qa’ida, its plans, and its intentions has been the members of its network who have been taken into custody by the United States and our partners overseas. So I want to be very clear—whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the Administration to take custody of that individual so we can obtain information that is vital to the safety and security of the American people. This is how our soldiers and counterterrorism professionals have been trained. It is reflected in our rules of engagement. And it is the clear and unambiguous policy of this Administration.”

What I’m most puzzled by is what exactly the WSJ et al. think is playing out in operational decision-making. So, is the suggestion that Brennan is lying about these rules? Or that, notwithstanding the military rules of engagement that Brennan describes, military drone operators are making decisions to kill people they could otherwise capture in violation of those rules (and presumably the international law on which they’re based)? That the CIA is conducting these operations unbound by any of those rules, so free to act on their own assessment of kill v. capture incentives in each case? Or is the notion that the President’s decision not to invade, say, Somalia, for the purpose of capturing suspected terrorists is a decision made principally not because, say, our military is already stretched a bit thin, but because he wouldn’t know what to do with the influx of Somali prisoners seized in such a conflict?

Strangely, the single example the Journal points to in an apparent effort to support its view is the Warsame case – the Somali national captured by the U.S. military somewhere in the Gulf and later transferred to New York for federal prosecution on terrorism-related charges. Warsame was held on a ship for two months before being sent to New York for prosecution, the Journal reasons, because Obama didn’t want to send him to Guantanamo. So Warsame’s capture is meant to prove, that, um, whomever we have operating in the Gulf had every incentive to kill and no incentive to capture him? Ok, maybe it was just meant to establish that Obama made the call to hold him on the ship instead of transfer him to Gitmo because Obama doesn’t like Gitmo? Well that is surely true; he’s said as much repeatedly. So have many of our most distinguished military strategists – Petraeus among others – who see Gitmo as a net strategic cost in global counterterrorism efforts. Besides, if Obama and those who captured Warsame thought Warsame had actually committed the crimes of which he is accused, why would they send him to Gitmo? Congress has forbidden any detainees transferred away from there for prosecution in criminal court. And the military commission process has proven an enormously expensive, and still legally fraught, way to pursue convictions (the handful that exist are mostly the result of plea bargains) that overall seem to produce far shorter sentencing periods than those regularly obtained through the federal criminal process. In the meantime, that criminal process is the one through which the Obama Administration has detained dozens since taking office, indicting terrorist suspects at about twice the rate the Bush Administration did. (For more on the prosecution stats, see this. )

To be clear, I don’t mean to be defending all the detention and targeting decisions made by the Obama Administration. As I’ve written before, a host of questions surround the legality of Warsame’s 2-month detention preceding his indictment; legal questions, and significant strategic concerns, continue to surround U.S. drone operations as well. But I’ve tended to think – and I don’t think Jack disagrees – that the Obama Administration has increased the use of drone strikes because it thinks the program has been effective in disrupting (perhaps destroying) Al Qaeda in Afghanistan and Pakistan. That is, even if the detainees had lost their cases in Rasul, Hamdan, and Boumediene, drones would be with us in force. That alone gives us plenty to discuss. And leaves me still thinking that the causal connection Jack et al. would like to see between detention and targeting these days is more theoretical than real.

Had the chance to catch at least one panel at yesterday’s jam-packed annual meeting of the American Society of International Law. Happy to say, it was a good one, and timely: “International Human Rights Law, International Humanitarian Law, and the Implications for Coalition Warfare.” Ashley Deeks moderated, giving a summary of the ECHR’s latest jurisprudence in the area (informative and succinct), followed by former UK legal adviser Daniel Bethlehem, who led off with a terrific précis of the many questions in the field. The panelists all seemed to have a clear, and I think accurate, sense of the cultural lay of the land here. Two points in particular I think now pretty clearly rise to the level of consensus. (To be clear, my metric for consensus is that I took all of the panelists at this particular session to agree, or at least not to disagree; that I myself agree; and that several other thoughtful scholars/practitioners in the field I’ve encountered at other meetings, civilian and military, would tend to agree as well. In short, totally anecdotal.)

First, there’s an enormous amount of scholarship, and a growing amount of case law, that purports to shed light on the relationship between IHRL and IHL, but in fact terribly little of it does the actual provision-by-provision work of analyzing how one might rationally interpret the ICCPR prohibition against “arbitrary” detention as informed by the law-of-war rules for what counts as arbitrary or not. Second, that there is an enormous amount of fear/loathing (my terms, not theirs…. ok, Hunter Thompson’s, not mine) informing the debate on both sides of the divide. Militaries are leery of acknowledging any role for IHRL for fear that admitting the nose will allow the entire IHRL camel under the tent. IHRL scholars/ advocates reject the characterization of much of, for example, U.S. counterterrorism activity as “armed conflict” in any sense, so reject the idea that IHL be understood in any way to compromise the full protection of IHRL.

That leaves us, I think by perhaps necessary implication, with the conclusion that if we had a bit more of the former – point by point analysis – we’d have a bit less of the latter – fear and loathing. Seems at the least to set out a pretty clear agenda for scholars in the field at the very least.

Much to say on Attorney General Eric Holder’s much anticipated speech yesterday on the U.S. Government’s approach to targeted killing. It should be said that it is good and right for the AG to make such a speech, and it should be welcomed for its effort. Combined with previous addresses in the past year+ by DOD General Counsel Jeh Johnson, Military Commissions Prosecutor Mark Martins, White House Counterterrorism Adviser John Brennan – it shows that the administration takes seriously the legal concerns about its counterterrorism programs and recognizes at least some imperative to talk about them publicly.

That said, Holder’s speech on first read seemed to me as rather a large anti-climax. It reads just like what I imagine it must have been – a vigorously fought, compromise text with 1000 authors and none in particular, a text that conflates various components of international (and possibly domestic) law, leaves all kinds of questions unanswered, and ultimately confuses more than it clarifies.

For now, maybe it’s just useful to start with what I’d put on my list of questions this speech leaves unanswered. Holder says (among other things):

“[A]n operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.”

So as a beginning, and in no particular order… Who in the U.S. government makes the determination? Does the group (I assume it’s a group) include Defense Department lawyers? CIA lawyers? Justice Department lawyers? State Department? Only some or some combination of these? In all instances or are there provisions for non-interagency team decision-making as well? Is the President invariably the final sign-off? Or do the DNI or Secretary of Defense or others have that authority as well? What kind of training do the relevant decision-makers have? Are they all or at least some expert in operational law? How many of the decision-makers are bound by professional ethical requirements as well (e.g. state bar codes of ethics)? Does the group of decision-makers depend on whether the use of force is being carried out pursuant to the AUMF (the 9/11-related authorization for the use of force) or under a self-defense or other statutory legal rationale (like the CIA’s general statutory authority)?

By what standard is the determination made – how much evidence is required and to what degree of certainty? How reliable need be the sources of information, is only one source or more required, or does it depend on the circumstances (as I imagine, and if so, what circumstances)? Are the “standards” by which the determination is made higher for Americans than for non-Americans? Does the “thorough and careful review” involve a set of quasi-independent assessments, or does each layer of review depend on/defer to the factual and/or legal findings of the initial decision-maker? What, other than the time-sensitivity of a threat, determines the “feasibility” of capture?

And then there are the questions about the law… Like how does the government interpret the principle of distinction (which Holder cites) as applying? The speech indicates (I take it) that non-citizen members of Al Qaeda and associated forces are targetable, as are (I imagine, the speech doesn’t use this language) those forces that directly participate in hostilities. How does it define direct participation? Which forces are included as associated with Al Qaeda and the Taliban under the 2001 authorization to use force against groups responsible for the 9/11 attacks? Al Qaeda in the Arabian Peninsula (which as I understand it was formed well after the attacks)? Al Shabab (which now seems to have formally affiliated itself with Al Qaeda)? Others? Is “imminence” in Holder’s view a legal requirement, or one the administration observes as a matter of prudence? Is it a requirement flowing from the U.S. Constitution (therefore applicable, as I take it in Holder’s view, only to Americans)? Or is it a requirement flowing from international law of self-defense (as the U.S. reads it), in which case it would apply in relevant circumstances to non-citizens as well?

There are of course more. But I sure would like to know what the best arguments are in favor of not just releasing the OLC memo that presumably answers a bit more than Holder was able to clarify.

For those interested in expanding their international law reading and/or writing horizons, the Virginia Journal of International Law is now welcoming submissions to its new online companion, the Virginia Journal of International Law Digest (VJIL Digest). The idea, which seems part of a useful trend among a number of the student edited law journals, is to publish short pieces focusing on emerging topics. Submissions should be roughly 3,500 words, lightly footnoted, and may be sent to vjilonline [at] vjil [dot] org.

In addition to Brennan’s fascinating remarks on targeting, etc. last night, which Marty reprints below, he took occasion to address the legislation now pending in Congress that aims to guide (to use a word) U.S. terrorism detention operations. For those who lost track over the summer, when last we left off, both houses of Congress were considering bills that would (variously described) authorize/reauthorize/clarify/expand U.S. authority under domestic law to engage in detention (and to some extent targeting) operations in its ongoing counterterrorism efforts. Among key questions, what the new law would do on the question of who may be detained militarily in these operations.

On this question, here’s the draft language from the Senate version, section 1031(b)(2): “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” I asked Brennan last night if he wished to address the administration’s view of this provision, as well as the provision in the draft bill that would mandate military custody for terrorist suspects. While I thought Brennan was very clear in his response as to the administration’s strong rejection of the mandatory military custody provision (which he called a “nonstarter”), his most substantive comment on the re/authorization language was to indicate that he had never felt in his position that the United States lacked the power to do things he felt the administration needed to be able to do in the interest of national security.

So what to make of the draft language? It seems critical to look at the language from both the 5-foot level and the 5,000-foot level. That is, what does this mean for future detainees exactly, and what does this mean for the United States’ counterterrorism efforts more broadly? First, from 5 feet. What if anything does this do to the standard now prevailing in the D.C. Circuit for the Guantanamo detainees? In my view, while it does nothing to clarify matters – leaving the definition again too vague to be helpful – and for that reason potentially much to confuse current litigation. The D.C. Circuit has been working with a definition, the product of Congress’ existing authorization, the executive’s suggestion and the court’s conclusion, to this effect: “[A]ny person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.” Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010).

Is the new, section 1031 definition broader or narrower than the current D.C. Circuit definition? It will be eventually, again, for the courts to decide, but I read it as, if anything, narrower. Among the failings of the Al Bihani definition, I’d thought, was the “purposefully and materially support” piece. It essentially made detainable under the laws of war (as incorporated by the domestic authorizing statute) anyone who was even marginally prosecutable under the criminal law. And I’d never been able to find any support in international law for the proposition that armed conflict detention and/or targeting authority extended broadly to “material supporters.” The new definition eschews the problematic material support language, instead exemplifying the kind of individuals detainable under the law as including those who have “committed a belligerent act or [have] directly supported such hostilities.” I know no one who disputes the detainability of those who actually commit a belligerent act in the context of armed conflict. I don’t know exactly what “directly support[] hostilities” means (and I dare anyone to argue that the definition of this phrase is made clear, or any in any way clarified, by the present bill), but at least it harkens to a recognizable (if admittedly also unsettled) standard in international law by invoking the idea that participation must be “direct” in some sense. How’s that for an endorsement?

Now back up to the 5,000-foot level…

A quick note to suggest that those interested in intelligence and surveillance topics check out the latest issue of the Journal of National Security Law & Policy, which features a host of interesting articles on U.S. and international law and intelligence collection by folks like Geoff Stone, Craig Forcese, and Steve Vladeck. I’d especially recommend the piece by David S. Kris, recently former Assistant Attorney General for National Security at the U.S. Department of Justice, who writes on “Law Enforcement as a Counterterrorism Tool.” As a response to chronic efforts in Congress to prohibit the President from ever using criminal prosecution as a way of handling terrorist suspects (and mandating military detention instead), Kris offers a powerful case on the other side.