Author Archive for
Deborah Pearlstein

Still More End Game

by Deborah Pearlstein

Look much beyond the blogosphere and you’ll be hard pressed to find many headlines about Jeh Johnson’s important speech at Oxford last week.

But important it was. Here are three more of the reasons why I think so.

1. It is difficult to overstate the depth of the scholarly consensus that existed (before last week) around the view that when Congress authorized the use of armed force against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided” the attacks of September 11, the “war” thus undertaken was one without identifiable end. That is, the view has been that not only would it be impossible in advance to identify when the use of armed force would cease – it has of course never been possible at war’s beginning to identify on which definite date war will end – but there would be no set of events, circumstances, or conditions that could be imagined, the occurrence of which might bring about a recognition of the political, or in any objective way factual, end of the war. (I’ll spare blog readers the lengthy set of string cites in support of this proposition I had occasion to assemble for a research paper over the summer, but the list easily included sources from the political left, right and center.) That consensus no longer exists. Both on panels at the ABA’s review of the field of national security law conference over the weekend and in reading some of the other blog entries since, it now seems clear that some combination of Jeh Johnson’s speech and an accumulating set of facts on the ground has made it possible to talk about an end of the war – and the consequences for detention, targeting, and much else, that flow from that eventuality.

2. As I’ve mentioned elsewhere, e.g. here, and beyond the critical policy implications attendant the end of war (like how to reintegrate the 2.5 million-some returning veterans who deployed in one operation or another in the past decade), the authorization for use of military force is far from the only statute that ceases to have effect (or the same kind of effect) when “hostilities” are over. Take private security contractors. Under the Federal Tort Claims Act, private security contractors implicated in misconduct in combatant activities are immune from tort suits for a wide swath of activities, only if those activities are performed “during time of war.” What fraction of the $100 billion security contractor industry is potentially touched by this? Could be worth a little of someone’s time to find out. Either way, there’s an important broader point here as well. How one determines when a conflict (hostilities, war – the words, and often the applicable legal standards, vary) is over depends enormously on in what legal context the question is asked.

3. Speaking of how one determines when conflict is at an end, there is also the question of who makes that determination. Over the past 200+ years, the Supreme Court has had to determine when hostilities were over for purposes of determining the applicability of federal statutes of limitations, criminal jurisdiction and sentencing, tort and fraud liability, authorizations for various government activities, and yes, even the applicability of what we now call the international law of armed conflict. Sometimes the Court has looked to particular statements or actions of the President or Congress. Sometimes it has made the determination essentially on its own (using, for example, standard tools of statutory interpretation). Never has it declined to interpret a statute with an end-of-war condition on the grounds that it presented a nonjusticiable political question.

More on the End Game

by Deborah Pearlstein

Thanks to Ken for posting the link to Jeh Johnson’s important speech below, and bravo to Jeh Johnson for saying it aloud. In addition to the central passage Ken highlights, I might add this from Johnson’s speech (to reiterate, Johnson is General Counsel to the U.S. Department of Defense).

“War” must be regarded as a finite, extraordinary and unnatural state of affairs. War permits one man – if he is a “privileged belligerent,” consistent with the laws of war — to kill another. War violates the natural order of things, in which children bury their parents; in war parents bury their children. In its 12th year, we must not accept the current conflict, and all that it entails, as the “new normal.” Peace must be regarded as the norm toward which the human race continually strives.

The habit of characterizing the United States’ conflict with Al Qaeda as a war without end – of detention within that war as indefinite, of the current pace of targeting operations as something the United States will, now having embarked upon it, never abandon – is something all sides of the legal debates have done, in and out of government. Johnson’s speech should, I think, lead us all to question the habit of accepting that assumption.

Searching for an End Game

by Deborah Pearlstein

If you haven’t already seen it, it’s worth taking a look at this morning’s editorial in the New York Times about the Administration’s targeted killing program. The editorial follows on a series of articles in recent weeks, including the Times’ own report that the Administration was in a scramble pre-election to codify (in some form) internal processes for deciding when to pursue a targeting operation. Sounds to me like they’ve been flies on the wall at the terrific ongoing annual review of the field conference organized by the ABA’s Standing Committee for National Security Law. (Kind of old home week for U.S. national security law practitioners and scholars.) I can’t count the number of hallway chats I’ve encountered on the topic.

The Times’ bottom line:

Mr. Obama has acknowledged the need for a “legal architecture” to be put in place “to make sure that not only am I reined in but any president’s reined in.” Yet his administration has resisted legal efforts by The Times and the American Civil Liberties Union to make public its secret legal opinions on these killings. Once the rules are completed, they should be shown to a world skeptical of countries that use deadly force without explanation.

I’d certainly agree about the importance of disclosure here, starting first and foremost with disclosure of the legal theory supporting the Administration’s use of armed force in this context. The necessity of this seems past question to me; it seems impossible to reconcile the idea of democracy with the idea of secret law. The administration’s speeches on the topic have been illuminating and commendable. But as I’ve noted before (e.g. here) some of them raise more concerns about the application of the law than they resolve.

What’s troubled me more about the recent reports – beyond the already troubling notion that it was not the program itself but the possibility that someone else might be (and someday certainly will) be pulling the trigger that drove recent formalization efforts – is the absence of any apparent strategic calculus underlying the tactical decisions about targets. What exactly is the end game here? Or even the goal? It seems evident already that the current targeting program aims not only at Al Qaeda, by which I mean the organization actually responsible for the attacks of September 11, but also at some much deeper set of loosely (how?) associated radicals drawn from the truly bottomless pool of men who wish to do the United States or our broadly defined interests harm. Is the plan simply to define what we think counts as the kind of threat of force requiring the exercise of self-defense (in the form, sometimes, of targeting)? Or is the plan to which future presidents are meant to feel bound one that includes among targets members of all of the militant groups who congeal in weak states – Yemen, Mali, Somalia, etc. etc. etc. – and adopt the franchise name “Al Qaeda”?

One can find any number of security scholars around the halls these days who insist “we can’t kill our way out of this.” With “Al Qaeda 1.0” seemingly down to its last members, it sure would be useful to know what we now think “this” is.

Journalists’ Guide to National Security Law

by Deborah Pearlstein

Just in time for the holidays, the American Bar Association and Northwestern’s Medill School of Journalism are releasing a volume of essays geared toward folks who work on or write about or teach national security and foreign policy, but need a primer on the relevant law. National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers aims for a just-the-facts account of where the law sits, and covers everything from the basics of U.S. separation of powers and international law in the courts to special issues in targeting, military commissions, cyber law, classification, piracy, etc. The table of contents, bipartisan list of authors, and ordering info are available here. I’ve got a chapter on international law in the U.S. courts, but OJ readers I suspect will recognize many of the authors from recent articles and past guest posts here.

“A Decade of War Is Ending”

by Deborah Pearlstein

Cross-posted at Balkinization

Of the many memorable lines in President Obama’s eloquent victory speech on Tuesday, the Chicago crowd reserved some of its greatest applause not for the line trumpeting the economy’s ongoing recovery, but for the news that “a decade of war” was coming to an end.

Tuesday’s speech was not the first time the President has made such a statement. But he has taken care to avoid saying which war, exactly, he meant was at an end. Certainly he includes the war in Iraq as among the endings. Likewise nearing an end from the President’s perspective is the war in Afghanistan, with U.S. troops set to leave by 2014. What about the worldwide “war” against Al Qaeda and associated forces? The war two Presidents, Congress and the courts have all now found in some sense to exist? While U.S. operations in, for example, Yemen, continue apace, and the brand name “Al Qaeda” remains in active use, public reporting suggests there is less and less left of a command structure behind the Al Qaeda organization actually responsible for attacking the United States in 2001. Whether that war counts among the endings the President had in mind is less clear.

We may all hope to learn more about what the President meant by war’s end in the coming weeks. But he was certainly right to raise the question of how the country moves “beyond this time of war.” As Administration officials have suggested in recent years, in, for example, contemplating Al Qaeda’s “strategic defeat,” it is possible to envision an ending of one kind or another to all of these conflicts. Now is the time to think carefully about the vast law and policy implications of what it will mean when the United States is no longer at war.

Take one small sliver of the subject: the myriad federal statutes authorizing the government to exercise certain powers only for so long as hostilities continue. The existence of war, variously defined, is the sine qua non condition for the lawful exercise of a wide range of statutory authorities that have supported the past decade of U.S. counterterrorism operations. Military commissions, for example, may substitute for civilian trials to prosecute only those acts “incident to the conduct of war,” for events occurring “within the period of the war.” Under another law, civilians may be subject to the U.S. military justice system if they are “serving with or accompanying an armed force in the field… [i]n time of declared war or a contingency operation.” Likewise, private security contractors implicated in misconduct are immune from tort suits for a wide swath of activities, only if performed “during time of war.”

Perhaps most famous among such authorities, the 2001 Authorization for Use of Military Force empowers the President to detain individuals “engaged in an armed conflict against the United States,” only, as the Supreme Court held, “for the duration of these hostilities.” The existence of this “armed conflict” is likewise one of the central legal justifications for ongoing targeted killing operations by the United States abroad.

Whatever the answers to the longstanding questions about the scope of these and other war-triggered authorities, about whether and for how long they should continue to exist, it should be possible to agree on at least one thing as the conversation at war’s end begins: it would be better to make decisions about which of these laws are needed after we have a developed a game plan for U.S. counterterrorism strategy for the long-term. A strategy not driven by the demands of crisis-driven fear, as it was in the months after September 11, or by ex-post mistake mitigation, the task that confronted the President in his first term, and in important ways burdens him still.

What we need to help guide these decisions is a strategy that sees the challenge of terrorism in all its enduring complexity. A strategy that flows from the vision we glimpsed in passing on Tuesday, that of “a country that moves with confidence beyond this time of war, to shape a peace that is built on the promise of freedom and dignity for every human being.” A strategy that begins with the understanding that the task is to develop rules that will be a part of our national life and character not for a limited or exceptional period of “war” time, but indefinitely. And that therefore recognizes that the questions before us are not about what we are willing and able to do right now as a nation, but about what kind of country and what kind of world we want ours to be.

The President is right. These particular wars will come to an end. The problem of terrorism never will.

What Congress Should Take From Hamdan

by Deborah Pearlstein

The D.C. Circuit’s decision overturning Salim Hamdan’s military commission conviction on the grounds that “material support for terrorism” is not a war crime under international law is significant in a host of ways. Steve Vladeck lists a few over at Lawfare. Beyond that, it strikes me that the decision offers a handful of indicators Congress might especially note. As it stands, Congress has prohibited bringing any of the Guantanamo detainees to the United States to face criminal trial before a regular Article III court. If I were joining Congress post-Hamdan, I might want to reconsider that restriction. The D.C. Circuit’s opinion – from a manifestly conservative panel of judges – is a shot across the bow of the military commissions in more ways than just the material support holding.

Here’s one example. In order to reach the question whether material support was a war crime at the time Salim Hamdan worked for Osama bin Laden pre-2001, the court first had to interpret the Military Commissions Act of 2006. This was the law Congress passed to authorize military commissions after the Supreme Court held them lacking such authorization in Hamdan’s first set of appeals. The MCA 2006 listed material support as one of the offenses triable by military commissions. So the D.C. Circuit had to ask: did Congress intend that law to apply retroactively to conduct that, like Hamdan’s, was undertaken before the MCA’s enactment? The court held that the MCA could not be read that way – because interpreting the statute that way would raise a serious constitutional question. It is (or should be) an uncontroversial application of the Ex Post Facto Clause of the U.S. Constitution that it prohibits prosecutions for actions that were not criminal at the time they were taken. The application of the Ex Post Facto Clause is especially noteworthy here because it had been something of a question whether the U.S. Constitution (other than the Suspension Clause the Supreme Court recognized guaranteed the Guantanamo Bay detainees a constitutional right to seek a writ of habeas corpus) applied to non-citizens held at Guantanamo Bay. While stopping short of answering the question of extraterritorial application directly, the D.C. Circuit’s opinion made clear that there are several ways the Constitution can constrain the operation of military commissions there. Even without recognizing that the detainees have any additional rights under the Constitution, courts can and likely will favor interpretations of the current MCA that comply with constitutional protections. Just as they would were the trials being held here in the United States.

It is too much to suggest that prosecution for some of these defendants would be completely without difficulty even in an Article III court applying regular criminal law. Did the ordinary federal statute making a domestic crime out of material support for terrorism have extraterritorial reach in 2001? Uncertain. But it is now apparent that civilian judicial review of military commissions will be at least as searching – and as attentive to constitutional concerns – as judicial review of ordinary criminal courts. Yet another way in which military commissions are neither superior to nor much different from good old fashioned Article III courts.

Into the Deference Weeds in Kiobel

by Deborah Pearlstein

Rather than dwelling further on any prediction of what kind of opinion the Court is likely to produce following oral arguments in Kiobel (FWIW, I thought arguments went better for plaintiffs than I’d anticipated), I wanted to highlight what I thought was a particularly interesting exchange on whether the State Department’s views on the ATS were entitled to some deference by the Court.

Background first. I’d read the U.S. Government’s latest brief as arguing for something like a case-by-case approach on the question of which extraterritorial ATS cases might be appropriate for federal adjudication. In the U.S. view, Filartiga (involving Paraguayan parties disputing the legality of conduct in Paraguay) presents a paradigmatic example of the kind of ATS suit that would be permissible, while Kiobel (involving non-U.S. multinational parties disputing the legality of conduct in Nigeria) presents a contrary example. The distinction between the cases, on this view, seems to turn on a combination of factors, including, but not limited to, the defendant’s presence in the United States (favoring jurisdiction in Filartiga), and the nature of the claim of aiding and abetting a foreign sovereign (disfavoring jurisdiction in Kiobel). But central to the justification for all such distinctions, according to the argument, is the interest of the U.S. government in avoiding conflicts in foreign relations, and the superiority of the executive over the courts in any given case in identifying what those foreign relations conflicts might be. (Again FWIW, I didn’t have the impression from yesterday’s arguments that any justice much liked this position.)

So here’s the exchange that struck me (between the U.S. Solicitor General and Justice Scalia). (more…)

Kiobel Watching

by Deborah Pearlstein

For those watching for signs of how oral arguments went in the U.S. Supreme Court in Kiobel this morning, early consensus seems to be that while a majority of the justices were plainly concerned by a reading of the universal jurisdiction statute that would give the courts the power to hear cases with no substantial connection to the United States, “a majority [also] did not seem inclined to narrow the Alien Tort Statute nearly into non-existence.” So writes the venerable Lyle Denniston over at Scotusblog. There may be quite a line-drawing exercise to come. More on the arguments here in a bit…

Speaking of Drone Technology

by Deborah Pearlstein

While it’s difficult at best to evaluate the truth of Iran’s claims about its weapons development, this latest story struck me as both plausible and relevant to the ongoing debate about international law rules governing targeted drone strikes.

“Iranian military leaders gave details of a new long-range drone and test fired four anti-ship missiles Tuesday in a prelude to upcoming naval war games planned in an apparent response to U.S.-led warship drills in the Persian Gulf. The show of Iranian military readiness and its latest tool – a domestically made drone capable of reaching Israel and most of the Middle East…. On Tuesday, Hajizadeh described the new drone as a key strategic additional to Iran’s military capabilities with the ability to carry out reconnaissance missions or be armed with “bombs and missiles.” Hajizadeh, who heads the Guard’s aerospace division, said the Shahed-129, or Witness-129, has a range of 2,000 kilometers (1,250 miles). That covers much of the Middle East including Israel and nearly doubles the range of previous drones produced by Iranian technicians, who have often relied on reverse engineering military hardware with the country under Western embargoes.”

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.”…