Last week saw a set of posts, across the law-and-security blogs, about whether an armed conflict existed at the time current commission defendant Abd Al Rahim Hussayn Muhammad Al Nashiri was allegedly involved in planning the October 2000 bombing of the U.S.S. Cole. See, e.g., Frakt, Vladeck, Heller, and Margulies. While I’ve written about this at length elsewhere, after reading the posts, I find myself disagreeing (at least in part) with pretty much all of my friends on the question of who can/must decide the answer to the existence-of-armed-conflict question. Here’s my thinking. (more…)
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Thanks to Steve Vladeck for his thoughtful response to my critique of his paper posted earlier this week. In great sum, Steve has a paper out proposing that the United States hold the remaining Gitmo detainees in the United States under a domestic immigration detention statute to ease the way for Congress to repeal the AUMF statute (under which authority the Gitmo detainees are currently held). I advanced several legal and policy arguments against the proposal. Steve’s post yesterday is a response to my concerns. While I think my original post still speaks for itself, I did want to clarify a few points I think Steve’s characterization of my argument obscures.
First, Steve suggests that my argument assumes “that countries will be lining up to receive” the Gitmo detainees this administration has identified as unprosecutable but “too dangerous to release.” My claim was actually quite a bit different – namely, that it was likely that “at least a fraction” of the 4 dozen “too dangerous to release” detainees might be repatriated by their home countries if the United States sought to return them. It’s important to caution here that of course both Steve and I are laboring in the dark; the administration has not made public information about which 4 dozen detainees it thinks falls into this category or why. But let’s imagine for the sake of argument the number is only 1 of the 4 dozen who could be repatriated. Why does it matter to my concern about Steve’s proposal? To see that, let’s play the proposal out.
Here’s the scenario: Congress has lifted the statutory prohibition against the transfer of Gitmo detainees to the United States. (This move is a necessary precondition for Section 412 to apply at all – it kicks in only once aliens are in the United States.) The AUMF is repealed. In order for Section 412 to apply at all, the administration will have to institute removal proceedings for all the detainees to have any lawful basis for continued detention of any of them. Under current policy as I understand it, all detained immigration removal proceedings (i.e. removal proceedings carried out while the potential deportee is in custody) are to be expedited, meaning an initial appearance 2-3 weeks after the beginning of immigration detention. Now imagine Detainee X (of the 48) concedes his removability, for example, by admitting yes indeed I endorsed/espoused whatever Al Qaeda said. Let’s further imagine his home country says (for a variety of reasons), “Sure, we’ll take him back, here are diplomatic assurances he won’t be tortured.” Section 412 proceedings are now over; they’ve taken about a month. The U.S. government now has no further legal basis for continuing to hold Detainee X. He is able to be deported, and Section 412 detention authority lasts only until this deportability condition has been met. This is the case even if Detainee X’s home country is politically unstable, and has made no promises about continuing to detain him there or about taking any other security measures. It is conceivable Congress could amend Section 412 further to authorize preventive detention under more conditions than just deportation; but this is a broader preventive detention statute than Congress has been willing to authorize in the 13 years post-2001, and it would pose novel and serious constitutional questions about an expansion of immigration detention authority outside of armed conflict that the Supreme Court has never upheld. As it stands then – and given the administration has said Detainee X is too dangerous to release anywhere – my point was that it is hard to imagine that the rapid release of Detainee X – even a release overseas – is an outcome this administration (or any administration) in good faith wants to seek.
Second, Steve accuses me of having offered no better alternative than the status quo. To that I plead more or less guilty. My original post actually offered no alternative proposal at all, it merely suggested we evaluate Steve’s proposal by considering whether his option is “better than, for example, letting the detainees litigate claims that existing AUMF detention authority runs out at the end of relevant hostilities.” For reasons I stated before, I continue to think Steve’s option isn’t clearly better than the currently existing alternative. But I also think it fares worse when compared to other alternatives (not just the status quo) one can imagine.
Suppose, for example, the AUMF stays on the books for now, and the administration finally succeeds in persuading the Congress to do the one thing it has tried to do from the beginning: allow the Gitmo detainees to be transferred to a detention facility here in the United States. As heavy political lift as that is (impossible so far, and especially hard to imagine now in the 6 months before midterm elections), it is still presumably easier to accomplish than moving them here and also repealing the AUMF. On the upside of this scenario, Gitmo is closed – no small matter itself. From that, we may hope to glean some modest diplomatic benefit from taking a key step forward, some modest strategic benefit from the removal of a uniquely destructive symbol, and some increase in domestic political urgency to return those many dozens of detainees who have long since been cleared for release.
Downsides of course, (1) there are still dozens of men in long-term detention and (2) the AUMF is still (for now) on the books. Take each in turn. For the detainees, conventional wisdom holds (with good reason) that their conditions of confinement would be quite a bit worse in standard domestic federal Supermax prisons than they are at Gitmo currently. But with the AUMF still on the books, there would be Geneva-based arguments about what conditions their continued detention (by the Defense Department) must satisfy. We’d still have a president motivated– and working – to get the majority sent home, with processes extant (an administrative review system, along with repeated habeas petitions) to check that progress (at least marginally). We’d also I think have growing pressure from the courts (no matter who’s president); the more time passes, the stronger the argument becomes (depending arguably some on the detainee) that hostilities are over and the AUMF no longer authorizes their detention. (And Section 412 remains as the kind of limited backstop it was intended to be if the courts do conclude the AUMF no longer applies in a particular case.) In short, for the detainees themselves, we’d be essentially where we are now – and arguably better than where we would be under the Section 412 theory in which they are held in federal civilian custody – with some of them in long-term detention subject to best efforts and increasing pressure to send them home.
That leaves the continued existence of the AUMF. As much as I embrace the President’s call to move to a post-war counterterrorism framework, I am not at all sure the significant legal and policy costs associated with Steve’s proposal (some I’ve identified, some Steve himself has) will change enough about U.S. policy in the coming two years to be worth it. Under the current administration, the use of the AUMF as a source of detention authority has diminished dramatically. It has been used for detention outside of Afghanistan on a tiny handful of occasions and for limited time periods before criminal prosecution. (The success of the criminal system in handling these cases, coupled with the absence of an off-shore facility in which to house detainees, will make future use of the statute for detention purposes trickier for any future administration as well.) The greater issue with the AUMF’s continued existence is I think targeting; it remains as a literal loaded gun for use against “associated forces” of our enemies (whomever and wherever they may be). Here, too, we have seen a significant drop in the frequency of U.S. drone attacks over the past year or so, as the security community itself has started to recognize the tremendous political, diplomatic, and strategic counterterrorism costs associated with the heavy use of lethal targeting outside Afghanistan. More important, the key concerns about the AUMF center not on the existence of targeting authority per se (no one denies it is sometimes permissible for states to use force in other states), but on how and against whom it is used. Amending the AUMF to impose or clarify limits on the scope of the targeting authority permitted under that statute going forward could in principle address these significant concerns – while avoiding creating new statutory and constitutional dilemmas to resolve. Such amendments, too, would involve a very tough legislative lift – but still I imagine an easier one than would be required to secure not only the necessary amendments to Section 412 noted above, but also flat-out repeal of the AUMF.
Nothing like spring break (yes, we break right before semester’s end) to do a little catch-up reading – starting this week with Steve Vladeck’s new essay grappling with one of the nation’s most intractable problems: closing Guantanamo. Among the many challenges associated with the prison’s continued existence, Steve highlights its role in preventing serious consideration of repealing the AUMF (the federal statute authorizing the use of military force against Al Qaeda and associated groups). The Gitmo detainees are held under the domestic authority of the AUMF; as long as the government wishes to continue to hold at least some of the Gitmo prisoners (as it does), Congress can’t repeal the law without risking their potential release. Despite the winding down of U.S. operations in Afghanistan, the serious weakening of core Al Qaeda, and the President’s announced desire to move the nation away from a permanent wartime footing – AUMF repeal is essentially impossible as long as we are concerned with maintaining the legality of the Gitmo prisoners’ detention under domestic law.
So how to keep Gitmo from becoming the detention tail that wags the wartime dog? Steve proposes that even without an AUMF, we could continue to hold the approximately 45 Gitmo detainees the executive sees as the intractable core (those the administration has designated unprosecutable but too dangerous to release) under the authority of another federal law: Section 412 of the USA PATRIOT Act of 2001. Section 412 – which Steve notes has not been used once since its enactment in 2001 – requires the Attorney General to take into custody any alien he has reasonable grounds to believe is (for example) a member of a terrorist organization, or endorses or espouses terrorist activity, or “is engaged in any other activity that endangers the national security of the United States.” The alien may be detained for up to a week until the commencement of immigration removal proceedings or criminal prosecution, or for “additional periods of up to six months” if his “removal is unlikely in the reasonably foreseeable future,” and if release “will threaten the national security of the United States or the safety of the community or any person.”
Steve’s diagnosis of the relationship between Guantanamo Bay and the AUMF is spot on in some critical respects. The uniquely problematic nature of the Guantanamo detention program skews the current debate about the need for continuing use-of-force authority, just as surely as it has skewed broader debates about U.S. counterterrorism detention, trial, and interrogation policies for the past dozen years. For a host of reasons, the Gitmo population is singularly unrepresentative of the challenges that would be posed by counterterrorism detention or trial following the arrest of any terrorism suspect today: Gitmo detainees were denied basic Geneva protections (including any initial hearing about who these men actually were); some detainees were transferred there following periods of unlawful (even torturous) detention elsewhere; criminal counterterrorism laws that are today used for prosecution were much narrower extrajudicial scope in 2001; Congress maintains unprecedented restrictions on the transfer of detainees to the United States for any purpose; and so on. Indeed, as Steve recognizes, given all that has gone before, closing Gitmo now involves only bad options; the policy task is to choose which among these bad options is least worst under the circumstances.
Despite the low bar, I have to admit I’m still unconvinced that Section 412 is the least worst way to go. (more…)
For those who try to keep up with the shifting nature of radical Islamist groups – groups too many in the media sometimes wrongly link to Al Qaeda –the stories earlier this week on the group formerly known as Al Qaeda in Iraq, now calling itself ISIS, are significant:
Early Monday morning the leadership of al-Qaeda disowned Islamic State of Iraq and Greater Syria (ISIS), the most effective of its two franchises fighting in Syria, in a maneuver that could alter the trajectory of the fight against President Bashar Assad. In a message posted on jihadi websites, the al-Qaeda general command stated that its former affiliate “is not a branch of the al-Qaeda group [and al-Qaeda] does not have an organizational relationship with it and is not the group responsible for their actions.”
Evidently not among those trying to keep up with the latest – the U.S. House Foreign Affairs Committee, which today held a hearing entitled: “Al-Qaeda’s Resurgence in Iraq: A Threat to U.S. Interests.”
Excited to see news of a new blog by former National Institute of Military Justice head Gene Fidell on military justice systems worldwide. Here’s a description:
Developments in the field of military justice have been coming at an extraordinary pace for the last several years, both in the United States and around the world. Some of these developments have been wise, some have not. In some respects, there has been remarkable resistance to change. The purpose of this blog will be to identify and comment on developments in the reform of military justice from a national and global perspective.
Welcome to the blogosphere GMJR!
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.
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.
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.
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:
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.
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
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
Partner, Arnold & Porter LLP and Former State Department Legal Adviser
Distinguished Visitor from Practice, Georgetown Law Center and Former Legal Adviser to the National Security Council under President Obama
CEO, The Soufan Group and
Former FBI Supervisory Special Agent
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.