An hour long as delivered, and full of substantive content. Transcript is here.
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As members of Congress begin calling more insistently for some unspecified form of U.S. military intervention against the regime of Syrian president Bashar al-Assad, I admit to suffering the same doubt as Julian. What exactly is the legal theory here – under domestic and international law – that would authorize the United States to use force in Syria?
There was, once upon a time, this idea in the Constitution that only Congress had the authority to declare war. While declarations of war per se have long since fallen out of legislative favor, Congress has still from time to time stirred itself to authorize the President to use military force abroad – giving the whole going-to-war business some meaningful democratic imprimatur. But Congress hasn’t authorized the use of force in Syria.
The go-to use-of-force authority for the post-9/11 wars – the 2001 Authorization for Use of Military Force – doesn’t plausibly extend to the use of force against Assad’s government. The 2001 AUMF authorized the President to use force against the Taliban, Al Qaeda and “associated forces.” Assad is none of the above. There have been reports that some of the rebel groups competing to overthrow the Assad regime are sympathetic (at the least) with the radical Islamist aims of Al Qaeda. Even if (a big if) those groups could be counted as associates of the Al Qaeda that attacked this country on 9/11, those groups in this conflict are also fighting against Assad. In other words, if we intervened in Syria against Assad, we would all in some sense be on the same side. That can’t be what the Congress that passed the AUMF had in mind.
Maybe, then, Congress is imagining the President could take action under his own power under Article II of the Constitution. After all, this President intervened in Libya without prior congressional authorization. That, too, of course had its problems. It was also thought, once upon a time, the President’s power to use force without getting Congress’ sign off first was quite limited. The Constitution’s framers believed, and the Supreme Court agreed, that the President must have at least some inherent constitutional power to, as they put it, “repel sudden attacks.” There has been no such attack by Syria against the United States here. True enough, the White House was legally untroubled by the absence of any attack against the United States by Libya. Embracing the far more problematic contemporary reading of inherent presidential power, the Obama Justice Department said then that the President could use military force on his own so long as it was in the national interest, and so long as the contemplated force didn’t actually amount to “war.” At least for 60 days. After that, under the statutory War Powers Resolution, the President has to get congressional approval for engaging U.S. forces in any kind of “hostilities” – a level of force even the Administration recognized could fall short of all-out war. In Libya, the Administration was able to argue its continued military engagement beyond the 60-day clock didn’t rise to the level of “hostilities” requiring authorization in part because our international allies did much of the actual fighting themselves. Is that in the cards here?
This brings us to the other small set of problems around Syrian intervention: international law. The UN Charter says that one state can use force against another in two circumstances: (1) if the UN Security Council authorizes it, or (2) in national or collective self-defense if an armed attack occurs, until the Security Council has time to act. In Libya, we had a UN Security Council Resolution authorizing military intervention. There is no such resolution here, and at the moment, slim prospect of obtaining one given Russia’s opposition to intervention. Is this plausibly self-defense, for example, collective self-defense on behalf of our NATO ally Turkey? Perhaps. Recent months have seen scattered reports of shelling across the Syria-Turkey border. But there is no public indication thus far that Syria has used chemical weapons against Turkey, or evidence that it has plans to do so, or even that it is threatening conventional attacks. In any case, without support from NATO itself, it is difficult to see the United States prevailing in any claim that it is acting with such justification. Is NATO actually on board?
Finally, and even setting aside the still contested international legality of humanitarian intervention in the absence of a Security Council resolution, it’s not at all yet clear that the limited use of chemical weapons seemingly at issue thus far materially changes the already horrifying humanitarian disaster that has been Syria for the past nearly two years. It is here the term “weapons of mass destruction” can hide all kinds of important detail. Of course the use of chemical weapons is horrible, of course it’s illegal. But not every use of a chemical agent, or even a biological one, harbors the potential to cause actual mass destruction. Both in assessing the case for humanitarian intervention, and the case that might justify an anticipatory use of force in self defense, it matters a lot what’s actually going on. The Obama Administration wants to wait and find out the details? For the sake of the law along with very much else, sounds like a good idea to me.
Would’ve been helpful if he’d said a wee bit more. For now, we’ll have to comb through the majority opinion in search of the questions he has in mind. In the meantime, worth noting the Court was 9-0 in affirming the Second Circuit’s decision to dismiss the ATS complaint in this case.
JUSTICE KENNEDY, concurring.
The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U. S. C. §1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.
UPDATE: In the annals of amusing moments in OJ history, looks like Julian and I had much the same thought at the same moment.
Internal debate inside the Administration must be heating up, because someone in D.C. is in a leaky mood. McClatchy yesterday released a story on U.S. targeting operations billed as the “first independent evaluation of internal U.S. intelligence accounting” of such operations. The report is based substantially on classified reports covering most (not all) of the drone strikes carried out by the intelligence community (as opposed to the Defense Department) in 2006-2008 and 2010-2011. Among the findings:
At least 265 of up to 482 people who the U.S. intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaida leaders but instead were ‘assessed’ as Afghan, Pakistani and unknown extremists. Drones killed only six top al Qaida leaders in those months, according to news media accounts. Forty-three of 95 drone strikes reviewed for that period hit groups other than al Qaida, including the Haqqani Network, several Pakistani Taliban factions and the unidentified individuals described only as ‘foreign fighters’ or ‘other militants.’
The McClatchy piece contends that such statistics are necessarily at odds with Administration statements that its targeting operations were limited to senior leaders of Al Qaeda and allied groups. This seems wrong; I haven’t understood the Administration’s position to be that it would only target senior leadership. Indeed, that was part of the problem with the White Paper. It argued that targeting senior leaders was within the President’s authority, but it didn’t foreclose the possibility that others could also be targeted. The Paper spent a great deal of time gesturing at, if not quite committing to, legal theories that would support much broader targeting authority. In this respect, the leaked news, if accurate, confirms what should by now be the unsurprising conclusion that the White Paper did not describe the full scope of asserted U.S. targeting authority.
That said, the official details here are new and therefore important to untangle. We might fairly assume some of these strikes are the deeply problematic signature strikes we’ve known about – against ‘militants’ who may or may not pose a threat to the United States. But what about the named groups? Does the United States have the authority to target the groups it targeted in the Pakistan/Afghan border region – including the Haqqanis, the Pakistani Taliban, and Lashkar i Jhangvi? Start with domestic law. The Authorization for Use of Military Force (AUMF), giving the President the power to use force against those groups responsible for the attacks of 9/11, is an authorization for the use of military force. It’s not clear the AUMF empowers the CIA to do anything. In any case, as the article points out, there’s no suggestion that the groups named above were in fact responsible for the attacks of 9/11. So odds are slim that the AUMF is the relevant source of domestic authority. That leaves CIA’s authority under Title 50 of the U.S. Code to conduct covert operations, operations for which a presidential finding is required and which the U.S. wishes to be able publicly to deny. So perhaps there is a presidential finding (of course classified) that authorizes the use of force against a far broader range of groups than is covered by the AUMF. That would be news. One may well not think this a good idea (itself worth several separate posts), but provided the Administration is complying with the modest requirements of covert action (the finding, congressional notification, etc.), it would address the problem of domestic law.
That still leaves international law. Set aside for the moment my ongoing concerns (see, e.g., here, here) that CIA doesn’t especially think itself legally bound by these obligations. What is the international law justification for the U.S. to use force against these groups? At least as to Haqqani and Lashkar i Jhangvi, McClatchy’s report suggests those groups are responsible for attacks against U.S. forces in Afghanistan. If that’s true, the United States might well be justified in using force against those groups in self-defense, and compliant with domestic law as well, provided these groups were covered under the scope of whatever classified presidential finding exists. Put differently, and to be clear, at least some of these strikes against these groups might be legal.
That still leaves several puzzles. For one, how broad is the President’s covert action finding? Hard to imagine it’s one that gives the CIA has some general power to use force in self-defense on behalf of the United States. That would seem quite a bit beyond the scope of ordinary Title 50 authority, which forecloses the intelligence community from using covert action authority to conduct traditional military activities (as, one might imagine, would include the military’s power to defend itself against foreign attack). So more likely the finding named groups. Were the groups targeted actually on it? Then there’s the U.S. targeting of Pakistani Taliban, which McClatchy doesn’t indicate is behind attacks on U.S. forces. That may just be oversight, or lack of information on McClatchy’s part. Maybe the same self-defense rationale exists there, too. But the Pakistani Taliban wasn’t a publicly designated (at least) terrorist group until 2010, and as I understand it is mostly focused on overthrowing the Pakistani government itself. So if it’s not self-defense, what is the international law justification for targeting them?
The unattractive (and speculative) explanation is this. The President issued a broad finding authorizing the CIA to use lethal force against a set of terrorist groups larger than just those groups responsible for the attacks of 9/11 – including a bunch of Pakistan’s internal enemies. The CIA isn’t especially worried about whether its exercise of this authority globally complies with international law restrictions on the use of force. Or, more specifically, the CIA thinks as long as it has the foreign state’s consent, it can use force in that foreign state whether or not it has an independent basis – UN Security Council authorization or a self-defense justification notwithstanding. In other words, the CIA thinks as long it’s not violating Pakistani sovereignty (which consent addresses), there’s no other international legal bar preventing its actions.
Exactly because it would be far too easy for one state to have another state do its internal dirty work for it, that’s never been my understanding of the UN Charter Article 2/Article 51 universe in which we live. I suspect the CIA disagrees with me. As for international human rights law, like the International Covenant on Civil & Political Rights (the treaty the United States ratified that says, among other things, states can’t kill people arbitrarily), the U.S. has long taken the view that our treaty obligations under the ICCPR don’t restrict our actions outside the United States. And while the Obama Administration had made gestures in some settings that it was reconsidering that longstanding position, if this is really what we’re doing in Pakistan, I can see why it hasn’t actually taken the plunge. In the meantime, worst case from the above and all apart from the loopy signature strikes themselves, we’re killing people in Pakistan with whom we are not at war and who pose no threat (imminent or otherwise) to the United States.
As usual, the American Society of International Law conference in Washington, D.C. is filled with panels of interest and great off line conversations with friends and colleagues. Good to see many OJ’ers there. Among many other things, I wanted to highlight yesterday’s lively discussions on targeted killing, including a panel featuring Daniel Bethlehem, Marco Sassoli, Hina Shamsi and David Glazier – a wonderfully thoughtful group. I take it the panel was available via live stream so would expect it will be posted in recorded form at some point as well. For now, a few assorted notes (in no particular order).
Readers might be interested in this piece I’ve posted over at Foreign Policy with a co-author highlighting the virtues of the criminal courts as an essential tool in counterterrorism. Beyond the stats themselves – nearly 500 criminal cases related to international terrorism since 9/11, including 67 cases involving defendants captured overseas according to DOJ -I’d say the real significance of the piece is the co-author: Phil Carter, Obama’s first Deputy Assistant Secretary of Defense for Detainee Policy, who has faced the joys of trying to close Guantanamo firsthand. Here’s a snippet.
The debate about the role of military force in counterterrorism has crystallized recently with arguments for (and here in Foreign Policy, against) a revised, updated, and expanded Authorization for Use of Military Force, the law passed just days after 9/11 that provides the core legal basis for current U.S. counterterrorism operations. The case for a new AUMF builds from the premise that, while our foes may be changing, our need for military force to fight them is no different now than it was in the fall of 2001.
That is a flawed premise. As with the end of World War II or the end of the Cold War, we are at a historic inflection point. The war in Iraq is over, the war in Afghanistan is ending, and the United States and its allies have disrupted, dismantled, and degraded al Qaeda and many of its confederates. We now have a wealth of tools and capabilities to fight terrorism — tools that did not exist in 2001. The time has come for the United States to transition from its current war footing to a long-term, sustainable counterterrorism strategy. The Abu Ghaith, Harun, and Warsame cases, and the many like them, show we are ready.
From Dan Klaidman of the publication formerly known as Newsweek, here’s what I’d call good news: “Three senior U.S. officials tell The Daily Beast that the White House is poised to sign off on a plan to shift the CIA’s lethal targeting program to the Defense Department.”
There’ve been hints in the press before that new CIA Director John Brennan in particular favored this approach, but this makes it sound as though it may soon become a reality. Why do I think it’s good news, at least on the relative scale of U.S. targeting operations? A combination of reasons, both legal and organizational, which tend to persuade me that Defense Department (DOD) targeting authority is better constrained than CIA. (more…)
I hope soon to get more directly to the important news of the prosecution of former Al Qaeda spokesman Sulaiman Abu Ghaith in U.S. federal court in New York and much else of interest in our pages, but I didn’t want to let pass without comment the also important piece in the Washington Post this week that the Obama Administration is examining whether it should seek to extend the legal authorization for targeted killing operations beyond those groups currently identified by the 2001 Authorization for Use of Military Force (AUMF). Per The Post: “The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. As the article rightly explains, these are “militant groups with little or no connection to the organization responsible for the attacks on Sept. 11, 2001.”
The AUMF has been the cornerstone of U.S. domestic authority to detain and target members of the Taliban, Al Qaeda and “associated forces,” but it is limited by its terms, by Administration interpretation, and by the courts to uses of force against these groups. As the U.S. prepares to leave Afghanistan and as the Al Qaeda that attacked the United States on 9/11 collapses, the AUMF is of decreasing import. More, as Steve Coll recently wrote, distinguishing the AUMF’s target groups from various violent Jihadi successor groups in Yemen, Mali and elsewhere: “A franchise is a business that typically operates under strict rules laid down by a parent corporation; to apply that label to Al Qaeda’s derivative groups today is false.”
So if the AUMF doesn’t authorize the use of force against the next generation of terrorist organization, what should we do? (more…)
Read Ali Soufan’s op-ed about Zero Dark Thirty today in the New York Times. If you’ve read Ali’s gripping book, his take won’t surprise you. As he puts it: “I watched ‘Zero Dark Thirty’ not as a former F.B.I. special agent who spent a decade chasing, interrogating and prosecuting top members of Al Qaeda but as someone who enjoys Hollywood movies. As a movie, I enjoyed it. As history, it’s bunk.”
Ali goes on to talk about how what the film says is not an accurate account of what actually was. And I’ve written before about what I regret the film leaves out of the torture story it tells. But I was especially struck at Cardozo’s panel discussion of the film last week by what else has been missing from the public torture debate. Namely, the possibility that anyone involved in authorizing any aspect of the program might publicly express any kind of regret about the decision to pursue it. In that regard, I found the concluding remarks of former CIA General Counsel John Rizzo – CIA’s top lawyer from 2001-2009 – striking. I played the internal video from the event back and copied them down verbatim.
“You know, in many ways, I wish we’d never started down this road – the interrogation program. It is certainly of all the controversies I was involved in during the course of my CIA career this was by far the most portentous. And as time went on and the controversy grew, there were criminal investigations, careers were affected. It honestly didn’t do a lot for my career ultimately, and I became defined not for what I’d done for my previous 25 years but my actions in the post 9/11 era. So all of that. In many ways, I mean – the Agency would have been better off if we’d never gone down that road. But I would just repeat, in February, March 2002, the fear, the dread, especially in the city, about another attack, was all pervasive. There was a guy we had in custody. The experts, our experts, concluded he was holding back information about another attack. We could’ve, I could’ve, when those techniques were first proposed, basically say, ‘You guys are crazy, these are immoral, they’re going to get us into huge trouble, let’s just not do them.’ Now, had there been a second attack, and in that post mortem — I frankly — it would have been hard for me to countenance the possibility that Zubaydah knew about that second attack, we didn’t get the information out of him, and the reason we didn’t was because we decided we could not go forward with admittedly very aggressive, unprecedented procedures. And that’s what we did. That’s what I did.”
The event ended up drawing press coverage mostly for Rizzo’s separate remarks that he couldn’t recall CIA Director nominee John Brennan ever having expressed concerns to Rizzo about the morality of the Agency’s “enhanced interrogation” program, so that’s the only video clip posted so far. I’m told the rest of the video will be posted soon, and you can judge for yourself how you take these closing remarks in the context of the entire event. After the event, I heard varying reactions from the audience – a highly unscientific sampling of students, law professors, press, members of the general public described the totality of Rizzo’s remarks as everything from admirably candid and sympathetic to stunningly hypocritical.
There was, however, uniform agreement in one respect: he was riveting to hear speak. Perhaps it was the novelty of hearing anyone involved with the program at the time expressing, for whatever reason, some regret. Perhaps it was the novelty of hearing an official in or around the CIA speak with such seeming candor. Perhaps it was, still after all this time, the need to figure out what really happened – and why. The possibility seems well past that there will be criminal accountability in the United States for any of the actors involved in the program, not even for those who exceeded the scope of the staggeringly broad authority they had been given by the lawyers then in the Department of Justice (the agent Rizzo mentioned, for example, who exceeded the authority by threatening a detainee with a power drill to the head). But it is not too late to learn about, and learn from, the real story. That 6,000-page classified report the Senators who criticized the movie keep noting – it would be good for all of us to see. Not just to correct the record on what the film says. But to say all those things the film passes over in silence.
The N.Y. Times editorial page yesterday joined the growing chorus of folks in D.C. calling for Congress to create a new, executive branch court to review executive targeting decisions.
“Having the executive being the prosecutor, the judge, the jury and the executioner, all in one, is very contrary to the traditions and the laws of this country,” Senator Angus King Jr. of Maine said at the Brennan hearing. “If you’re planning a strike over a matter of days, weeks or months, there is an opportunity to at least go to some outside-of-the-executive-branch body, like the FISA Court, in a confidential and top-secret way, make the case that this American citizen is an enemy combatant.”
Mr. Brennan said the idea was worthy of discussion, adding that the Obama administration had “wrestled with this.” Two other senators, Dianne Feinstein of California, the chairwoman of the Intelligence Committee, and Ron Wyden of Oregon, also expressed interest. Even Robert Gates, a former C.I.A. director who was defense secretary under President George W. Bush and President Obama, said on CNN that such a judicial panel “would give the American people confidence” that a proper case had been made against an American citizen.
The speed with which this idea has gained currency in Washington has, I fear, less to do with its merits and more to do with the intense attractiveness of the notion that there might be a neat procedural solution to a messy substantive problem. Alas, I don’t think it works that way. Here’s my thinking. (more…)
According to NPR:
President Obama directed the Justice Department late Wednesday to give Congress access to classified information that details the rationale for targeted strikes against U.S. citizens believed to have links to al-Qaida. NPR’s Carrie Johnson is reporting on the story for our Newscast Unit. She says the decision comes after Senators threatened to hold up nominees for the CIA and Pentagon. Here’s more from her report:
“An administration official says the president personally made the decision to give lawmakers on the house and Senate intelligence committees a chance to review the memo. The classified document provides a legal justification for killing U.S. citizens who have become senior operatives in al-Qaida. A U.S. drone killed radical cleric Anwar al-Awlaki, a U.S. citizen in Yemen in September 2011. Senators said they wanted to see the basis for that action before they would approve a new CIA director. The administration official says the release is extraordinary and does not set a precedent.”
The decision to grant access to lawmakers comes a day before John Brennan, Obama’s pick to head the CIA, faces the Senate Intelligence Committee for his confirmation hearing.
Note that if the full memo is still classified, and no redacted version is available, it may yet be some time before the memo sees the light of day. Nonetheless, this is surely a step in the right direction.
I set out to begin to untangle the strings of argument in the DOJ white paper, and find myself, after three pages of writing notes myself, having untangled only as far as the paper’s page 5 (of 16). There is something wrong with a memo like this. Let me see if I can explain why.
The white paper says that it intends to set forth “a legal framework for considering” when the U.S. government can “use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force if al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.” While the paper disclaims any intention of establishing the “minimum requirements necessary” to make such a killing lawful, I take it to be an explanation for how such an operation is both authorized by domestic law, and in compliance with the various provisions of domestic and international law that regulate the use of force. It is the closest thing we have seen – and perhaps the closest thing that exists – to a detailed argument for why such a practice is legal.
So let’s start where the paper starts, more or less, with the domestic source of authority on which the administration relies for the use of lethal force it describes. The paper points to two sources of domestic law and suggests the operation is authorized either by the Constitution itself or the statutory Authorization for Use of Military Force (AUMF). So which one is it in the highly specific context here – statute or Constitution? The paper never commits. But which one it is matters enormously. It is, in a sense, what matters most. Pull out the argument threads. What law does the paper mean to reference by invoking as a source of authority the “President’s constitutional responsibility to protect the nation” (pp. 1, 2)? I infer from this description the authors mean to reference the President’s power under Article II, though I could find no citation to that provision. In particular I imagine this is some reference to the President’s power to, as the framers put it, “repel sudden attacks.” In such limited form – i.e. as a defensive use of force – it is a principle that has been recognized in various ways back to the Civil War era Prize Cases (though I find no citation to those authorities either). Does the paper contemplate that this Article II power alone – without further congressional authorization – would be sufficient as a matter of domestic law to authorize the use of lethal force against any senior operational leader of al-Qa’ida or an associated force actively engaged in planning operations to kill Americans? If the Article II power so conceived includes lethal force in those circumstances, mustn’t it also include the authority to employ lesser forms of force, like detention, against those figures, without further congressional authorization? Given the Administration’s insistent reliance on statutory, and not purely constitutional, authority to support the legality of ongoing detention of folks like KSM, it is hard to imagine the paper here is really intended as a full throated embrace of that claim.
So maybe the paper means to limit the scope of the “President’s constitutional responsibility to protect the nation” in some other way…