Author Archive for
Deborah Pearlstein

The Yemen War

by Deborah Pearlstein

It’s not news that the United States has been actively using armed force in Yemen for some time. The Bush Administration reportedly launched a first drone strike against alleged Al Qaeda targets in the country (with the Yemeni government’s cooperation) back in 2002, and of course multiple reports have described the Obama Administration’s use of drones in the country as well (this one among the more recent). But at some level, these strikes have been pitched – and are still usually reported – as one-offs. Yemen is named as among the handful of countries, along with Somalia, that has seen the occasional use of targeted strikes against individuals engaged in active plots against America and its interests. Nothing like the Iraq War. Nothing like the Afghanistan War.

As a few others have started to point out, that characterization is getting harder to see. Today brings news that Congress is considering a $75 million package of aid to Yemen’s counterterrorism forces, including $4.7 million so Yemen can have its own set of aerial surveillance drones, $8.6 million worth of up-armored Humvees, $15 million worth of weapons, and $1.5 million for the construction of two new Yemeni “expeditionary bases” in Aden and al-Anad. While standing alone, military aid to an ally (to the extent there’s a functioning government to support) hardly a war makes, the latest aid package doesn’t stand alone. Not long after the U.S. Defense Secretary and Chairman of the Joint Chiefs stated publicly that there “is no consideration of” sending American troops to the country, the Pentagon clarified (unsurprisingly) that there were indeed some Special Forces troops on the ground in country to help support Yemeni and U.S. targeting operations. In the past few months, the United States returned additional military advisers to Yemen to support the new government, and the President issued an unusual executive order that the White House described as “authorizing sanctions to be imposed on individuals and entities who threaten the peace, security, and stability of Yemen by disrupting the political transition” now underway. As the White House press release put it: “This Executive Order will allow the United States to take action against those who seek to undermine Yemen’s transition and the Yemeni peoples’ clear desire for change.” Meantime, the pace of U.S. bombing strikes in country (reportedly coordinated with the Yemeni government) appears to be accelerating amidst an increasingly bloody, multi-faction civil war, parties to which include, among others, the new Yemeni government and one faction supported by some version of a group lately associated with (what remains of) Al Qaeda.

In May, the New York Times quoted President Obama as having insisted to internal advisors: “We are not going to war with Yemen.” It may be the case that we are not at war “with Yemen.” But it’s getting tough to argue we’re not at war in Yemen. We are in what sounds an awful lot like a traditional, territory-specific, non-international armed conflict in which the United States has intervened on one side. The characterization of a conflict as an NIAC of course has legal consequences. (Among other things, at a minimum, the applicability of Common Article 3 to U.S. and Yemeni activities there.) Maybe more important in the near term, the characterization has political consequences that democracy is probably best served by acknowledging. By articulating the strategic costs and benefits, and making the case that the one outweighs the other. By explaining how such engagement is consistent with DOD budget cuts. By at least contemplating an end game.

Put it this way. It’s one thing politically to justify the targeting of a handful of Al Qaeda members before they can blow up a U.S.-bound plane. It’s another thing to say we’re embarking upon the third post-9/11 war of the millennium. I’d like to hear the argument on the Hill this week that the latter pitch is wrong.

The Must-Read I Should’ve, But Didn’t, See Coming

by Deborah Pearlstein

The cover story in this month’s Atlantic magazine is an article by former U.S. State Department head of policy planning, former dean of Princeton’s Woodrow Wilson School for Public & International Affairs, former Harvard Law professor Anne-Marie Slaughter. Anne-Marie’s writings on international institutions and international networks are, I’m sure, known to many OJ readers. For this reason alone, I count the piece as fair fodder for our international law and policy blog.

The article, however, is not about international law or policy. Not per se. It is, I suppose, about some of the key jobs in the U.S. international security and foreign policy establishment. It is about her experience, to some extent, of her State Department job. But mostly, it’s about women in these, and other substantive, high-level, professional positions. And whether, and to what extent, it’s possible for women in such positions to “have it all” – that is, a fulfilling career and rich, involved family life. Her conclusion: Outside of academia, not so much.

The significance of the piece is not especially its insights about the difficulty of having both professional career and family life. There are other pieces about the dearth of women in leadership roles in the national security establishment (and at the most senior levels in a host of other professions). There are other pieces about the absurd way in which public school schedules still function as if it hadn’t been more than a decade since our society became one in which the majority of married couples with children have both parents working outside the home. There are other pieces recommending more flexible work places. There are many other pieces about the costs vs. benefits of motherhood earlier vs. later in life. One could go on.

The significance of this piece is its author. There’s a personal cost to writing from one’s personal experience. There’s a risk in engaging the personal as political. Anne-Marie Slaughter didn’t need to write a piece like this. But I’m grateful that she did.

Targeting Again

by Deborah Pearlstein

The temptation is strong to write about the Supreme Court’s decisions this morning to deny review to the latest set of Guantanamo detainee cases to come before it. The denials of certiorari effectively let stand the decisions of the D.C. Circuit Court of Appeals, which has yet to find a detainee entitled to relief. But I’ll save the role of the courts discussion for a later post.

For now, I didn’t want to let go without comment the interesting set of commentaries that followed recent reports of President Obama’s intimate involvement in decisions about whom to target in U.S. global counterterrorism operations. David Luban’s thoughtful essay on the morality of targeted killing in the Boston Review last week is among the more balanced pieces I’ve come across on the topic, and unquestionably worth reading. Drawing on recent articles describing President Obama’s direct involvement in targeting decisions as informed in part by just war theory, Luban puts his finger on a truth about targeting that has largely been lost in the public debate: that targeted killing (by drones or otherwise) is sometimes moral (and legal) and sometimes not.

My one disappointment with David’s piece – and this is less a criticism of the piece than of his otherwise legitimate choice to focus on the moral substance of the law of war, rather than the applicability of that law per se – is that it felt like it was talking past one of the central sources of debate about contemporary targeting policy. Namely, that the legality (or not) of these operations turns in many (perhaps most) cases on one’s answer to the question whether an armed conflict exists within the meaning of international law. The Obama Administration, supported by authorizations by the U.S. Congress and interpretations by (at least) the federal courts of appeals, thinks there is a non-international armed conflict between the United States and Al Qaeda and “associated forces.” The rest of the world isn’t quite so sure, particularly when it comes to the still somewhat obscure definition of who counts as “associated forces.”…

Americans and Our Military

by Deborah Pearlstein

Of all the items to capture blogospheric attention this Memorial Day weekend – one of the few times a year in the States when more than a handful of popular news outlets focus on what it means for our military and our country that we have been at war for more than a decade – MSNBC pundit Chris Hayes’ remarks on the nature of heroism seem to have risen to the top. Here’s Politico’s summary of the remarks, the backlash, and the subsequent apology; the actual 12-minute video clip of the conversation is here.

In essence, the controversy surrounds Hayes’ questioning of whether it was appropriate to use the word “heroes” to describe every member of the military who died in combat. The idea was inartfully expressed (and laden with caveats and hesitations), but it amounted to the notion that calling all members of the military heroes was a form of rhetoric that tended to obscure more complicated questions of the justness/unjustness of the particular war. Hayes’ idea was then embraced and expanded upon by the other pundits at his roundtable. Not so by the blogs.

Several things. First, Hayes deserves enormous credit for devoting his program to the wars and in particular their effects on veterans and their families. Immediately before the panel discussion, he interviewed US Marine Lt. Col. Steve Beck, one of the soldiers responsible for telling family members that their loved one had been killed. Immediately after the panel, he interviewed Mary Kirkland, whose son Army Specialist Derrick Kirkland was diagnosed with PTSD and committed suicide at age 23. Their stories are, of course, excruciating to hear – which may well be part of the reason why we don’t hear them often enough. Hayes was, it seems clear, trying to remedy the more typical lack of focus on these issues – made possible in part by what a tiny fraction of Americans it is who actually serve, and by the many ways (some of which I noted last week) in which the American public has become less able and less inclined to check the conduct of war.

Second, Hayes is hardly alone in wondering about whether the term “hero” is always the right one to use. Here, for example, is Iraq vet Phil Carter writing in the L.A. Times in 2006:

America’s deepening civil-military divide crystallized for me two weeks after I had returned from Iraq, while sitting at a Starbucks in the San Fernando Valley. I looked around the cafe and saw a dozen people ordering coffee, talking, reading and studying, while the baristas were busily serving drinks. All of a sudden, it hit me. Even though we are a nation at war, the war does not really seem to exist here in America. Frequently over the last two months, my friends have referred to me and other veterans of Iraq and Afghanistan as “heroes.” This has disturbed me a great deal, forming another sort of alienation that is likely to become particularly acute this Veterans Day. American society venerates all soldiers as heroes, yet we in the military reserve that label for those who truly go above and beyond the call of duty. To us, the ordinary soldiers who merely served in harm’s way, the label feels like a garish shirt — it neither describes us well nor fits us comfortably…. I judge myself by the code of a warrior. That ethos demands selfless service, not aggrandizement. It praises the team, not the individual. And it saves its highest accolades for those who distinguish themselves through extraordinary acts of valor. As veterans, we know the real heroes among us; many of them did not come home. Awarding this distinction to everyone cheapens the accomplishments of those who earned it — and makes the rest of us feel guilty that we have somehow stolen recognition from the worthy.

Which brings me to a final point for now. The Hayes discussion seemed ill-handled in a variety of ways. Among them, Lt. Col. Beck participated in the show (not the group discussion) by satellite. The only folks at the actual table talking about heroism were a group of journalists, none of whom were introduced as having any record of military service (or, oddly, much visible knowledge of military affairs). Is it possible to have a real conversation about civil-military affairs without a member of the military participating? Of course it’s possible. But I think such discussions are inevitably poorer – and predictably more alienating – for their exclusions. Still, however I might’ve designed the discussion differently, the worst outcome of all here would be not having such discussions at all. As Hayes and others have noted, the country has been living in remarkable silence about the wars this past decade. But inattention and best wishes have done us no favors. What they have done is left us with a nation in which 80% of us “support the troops.” And 90% of us are unable to locate Afghanistan on a map.

NYT Must-Read on Obama, Counterterrorism and Targeting

by Deborah Pearlstein

I’ll look forward to digesting today’s lengthy, front-page article along with my colleagues. In the meantime, one snippet:

It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.

This secret “nominations” process is an invention of the Obama administration, a grim debating society that vets the PowerPoint slides bearing the names, aliases and life stories of suspected members of Al Qaeda’s branch in Yemen or its allies in Somalia’s Shabab militia.

The video conferences are run by the Pentagon, which oversees strikes in those countries, and participants do not hesitate to call out a challenge, pressing for the evidence behind accusations of ties to Al Qaeda.

“What’s a Qaeda facilitator?” asked one participant, illustrating the spirit of the exchanges. “If I open a gate and you drive through it, am I a facilitator?” Given the contentious discussions, it can take five or six sessions for a name to be approved, and names go off the list if a suspect no longer appears to pose an imminent threat, the official said. A parallel, more cloistered selection process at the C.I.A. focuses largely on Pakistan, where that agency conducts strikes.

The nominations go to the White House, where by his own insistence and guided by Mr. Brennan, Mr. Obama must approve any name. He signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan — about a third of the total.

Book Discussion “Outsourcing War and Peace”: Private Security Contractors and Public Accountability

by Deborah Pearlstein

This is the second day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

One of the many things I like about Professor Dickinson’s book is the broad approach it takes to thinking about accountability. When I ask my law students to engage in problem-solving hypotheticals – i.e. Here’s a problem in the world, you are X individual/organization/state worried about the problem, what should we do about it? – their initial instincts are to look to the courts. Who can we sue? For U.S. trained law students, whose first year of schooling is traditionally devoted entirely to learning the judicial processes of the common law, this is hardly surprising. But Professor Dickinson’s book helps us think more creatively, and demonstrates that accountability, in the sense of deterring undesirable conduct and demonstrating consequences for it when it happens, can be achieved through many tools. Indeed, for a setting as complex as the conduct of private security contractors – who straddle civil and military affairs, public and private interests, foreign and domestic settings – it would be surprising if any one accountability tool was sufficient.

Still, part of the challenge to finding solutions to the accountability gap she identifies in this special setting is, it seems to me, that contractor accountability is part of a larger problem of waning public accountability for national security and military affairs more generally. The problem is not unique to contractors. Take the possibility Professor Dickinson raises (and I suspect will address further) of subjecting civilian contractors to the Uniform Code of Military Justice. The UCMJ is the set of federal statutes establishing penal and disciplinary rules for dealing with misconduct by members of the U.S. military. As Professor Dickinson understands, the application of the military justice system to civilians raises a host of constitutional concerns, in particular the framers’ strong concern that military rule not be permitted to bleed over into civilian life. Beyond that, though, the UCMJ system through which soldiers might be held accountable for exactly the same kinds of conduct that most concern us about contractors is also fraught with problems. As Human Rights First reported back in 2006, efforts to prosecute soldiers responsible for the worst kind of detainee treatment, resulting in the death of detainees in custody, often foundered on just the kind of investigative and evidentiary issues that appear in the contractor setting as well.
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The Trial

by Deborah Pearlstein

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.

More on Executive Power

by Deborah Pearlstein

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.

Executive Power Debate, Redux

by Deborah Pearlstein

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?

Former CIA Director Hayden on Interrogation, Common Article 3

by Deborah Pearlstein

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.

Detention Debates

by Deborah Pearlstein

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.

CIA General Counsel Speech on Hypothetical Uses of Force

by Deborah Pearlstein

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.