Author Archive for
Deborah Pearlstein

Another Set of Syria Views on Huff Post

by Deborah Pearlstein

For those still following along, an interesting array of views on the Syria situation in a conversation this afternoon on HuffPost Live, including Michael Scharf, Jules Lobel, Eric Posner, and yours truly. Would that the link went back a bit farther, you could listen in on a lively Miley Cyrus debate as well.

Syria Insta-Symposium: The President’s Wise Decision

by Deborah Pearlstein

As an adherent of the view that the Constitution requires congressional approval before the President can use military force (other than in certain circumstances of national self defense), I think the President’s decision to seek authorization from Congress was legally required. While Marty is right that presidential practice has at times been otherwise, I don’t think that practice should be understood to alter the otherwise clear import of the Constitution in generally requiring the engagement of more than one branch of government before the United States uses force. Presidential practice past, however, has been relied on by many presidents to justify their circumvention of the requirement to go to Congress. And Congress has, often to its shame, shirked its responsibility to engage more. That President Obama did not follow this well trodden path is thus to his great credit. In this respect, I agree with the basic premise of Peter’s post: the decision was remarkable.

I don’t think I agree, however, with Peter’s expressed concern, which seems to be that because the requirement of getting congressional authorization makes it less likely the U.S. will use force “in these kinds of situations,” this is a bad development for “the global system generally.” Of course, making it hard for the U.S. government to go to war was precisely why the Constitution’s framers thought it wise to bifurcate the war-making power between the branches (as John Hart Ely, among others, eloquently demonstrated). The instinct wasn’t complicated: war is brutal and costly and should be presumed to be rarely in the national interest. But let’s set aside that history for the time being as, one might reasonably argue, the conclusion that emerged from a time in which the United States was young and weak, and in which the world was a categorically different place from the world we live in today. What are “kinds of situations” like these that Peter thinks it should be less difficult than that for the U.S. to use force? Some of the examples he cites – Reagan in Lebanon, Clinton in Somalia – don’t seem to me like great illustrations of good things coming to the global system from unilateral presidential intervention. Other examples one might recall – Reagan in Libya, Clinton in Sudan and Afghanistan – fall I think more evidently into the category of national self defense – a category of justification for unilateral presidential action I do not see as touched at all by President Obama’s decision to go to Congress here.

A better, and much more challenging, example is something like NATO intervention in Kosovo – where the humanitarian situation was horrifying, rapidly worsening, and the UN Security Council unwilling to act. There, the Clinton Administration acted without either advance congressional approval or Security Council authority – an agonizing and self-conscious decision to violate the prevailing law for the purpose of accomplishing what it concluded was a more important end: preventing an ongoing massacre. I found it a very difficult question but ultimately agreed with intervention then. Not unlike Robert Cover’s judges of the slavery era south – torn between a clear legal and professional duty to enforce a law they believed led to a morally abhorrent result – anyone who has ever contemplated civil disobedience recognizes that circumstances may arise in which the profound value of protecting and observing the rule of law comes into conflict with another value, also profound, the protection of which one might reasonably expect to be served by the law’s violation.

But for reasons I alluded to in an earlier post, it’s not at all clear to me that the proposed U.S. use of force in Syria is particularly aimed at the alleviation of human suffering. The President’s stated purposes here – focused largely on accountability for Assad’s past action and deterrence of any future use – coupled with his stated commitment to keep the use of force short and minimal, make it hard to credit the idea that such a U.S. use of force would have the effect (or has the purpose) of ending the humanitarian disaster there (now underway for 2+ years). On the contrary, a limited use of force may provoke retaliation against Syrians or other countries in the region; Assad seemingly has no compunction about using any means at his disposal to preserve power. At the other end of the spectrum – if U.S. intervention causes the regime to collapse, it’s hard to see how we don’t face a greater danger of the dispersal of chemical weapons in the regime’s control, as warring factions fight for power in post-Assad Syria. If we could just destroy the weapons themselves, that might be one thing. But blowing up chemical weapons of course risks a far greater disaster than the one already apparent on the ground. One could go on.

For now, the point is twofold: (1) There’ve been plenty of past U.S. interventions on unilateral presidential authority that have not gone well, for the United States or the global system. (2) There are plenty of reasons to fear this is one of those instances that also will not go well – such that it makes it at a minimum worth debating in a full and democratic way (i.e. with Congress), whether or not force in Syria is the right next step to take.

Not Even the Brits Can Make the Case Bombing Syria Is Lawful

by Deborah Pearlstein

Good thing nothing much happened while I was away on summer vacation… So as I wrote here last spring, there’s no clear basis under international law for a U.S. use of force in Syria – no UN Security Council resolution, and no apparent claim at this stage that the United States is acting in self-defense. The only theory of legality in play seems to be the one put forward by the British government, right before Parliament voted to reject the use of force in Syria. Namely, that force may be justified as part of an emergent customary norm permitting humanitarian intervention (see, e.g., NATO intervention in Kosovo).

The statement from the UK Prime Minister’s Office says a state may take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided” a set of conditions hold. Those conditions: (1) “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;” (2) it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved;” (3) the force used is “necessary and proportionate to the aim of relief of humanitarian need…”

But it just can’t support U.S. action here. Here’s why.

150 Years of War Regulation

by Deborah Pearlstein

ICRC and ASIL’s Lieber Society on the Law of Armed Conflict are hosting what looks to be a great event celebrating the 150th anniversary of the ICRC and the Lieber Code, Tuesday, July 23, 2013, 3:00 p.m. at the American Red Cross historical building, 430 17th Street NW, Washington DC. The event features John Fabian Witt, author of the terrific IHL history Lincoln’s Code, and Brigadier General Tom Ayers, Assistant Judge Advocate General, U.S. Army, talking about the progression of the law of war over the past 150 years. Jennifer Daskal will moderate the panel discussion of the progression of the law of war over the past 150 years of the ICRC’s existence. RSVP: icrcevents [at] gmail [dot] com.

One of the Things We Learned About Targeting

by Deborah Pearlstein

There is now a set of important new documents regarding its targeted killing operations: (1) a letter from U.S. Attorney General Eric Holder to members of Congress describing the decision to target U.S. citizen Anwar al-Aulaqi; (2) a “fact sheet” on procedures for the use of force outside areas of “active hostilities”; and (3) the transcript from the President’s speech to the National Defense University. What can we glean from them about the legality of U.S. drone operations, as opposed to what we learned from the leaked DOJ White Paper some months back? I’m still sorting it out, but for now, here’s one: Whether or not you believe the United States is in a legally recognizable transnational non-international armed conflict with Al Qaeda – a view the United States embraces but the ICRC and most U.S. allies reject – the standards announced in these documents appear intended to keep U.S. targeting operations in line with the international law of self defense.

Starting at the End

by Deborah Pearlstein

Far too much to say for one blog post, so I’ll start with two things I liked about the speech. First, bravo on the President for giving it. Would that he had done it years ago. Indeed, having heard it, it is even more of a puzzle why it took as long as it did. Still, he undoubtedly helped himself with Congress and the public in defending his use-of-force policies, and the debate moving forward will be, at the least, somewhat better informed. Second, big picture strategy. Obama urged the need for a comprehensive counter-terrorism strategy going forward, returning repeatedly to the idea that the U.S. war with “Al Qaeda, the Taliban, and associated forces” must end. Some examples from the speech strung together:

“From the Civil War, to our struggle against fascism, and through the long, twilight struggle of the Cold War, battlefields have changed, and technology has evolved. But our commitment to Constitutional principles has weathered every war, and every war has come to an end…. We must define the nature and scope of this struggle, or else it will define us, mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.” …. [T]he use of force must be seen as part of a larger discussion about a comprehensive counter-terrorism strategy. Because for all the focus on the use of force, force alone cannot make us safe. We cannot use force everywhere that a radical ideology takes root; and in the absence of a strategy that reduces the well-spring of extremism, a perpetual war – through drones or Special Forces or troop deployments – will prove self-defeating, and alter our country in troubling ways…. All these issues remind us that the choices we make about war can impact – in sometimes unintended ways – the openness and freedom on which our way of life depends. And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing….”

This view is important, strategically sound (the world can make terrorists faster than America can kill them), and consistent with U.S. and international law understandings that there is and should be a legal dividing line between law at war, and law at peace. It signals the recognition of an end game, of the need to address terrorism not as a war-emergency but as a chronic disease, potentially fatal if not managed appropriately. Especially critical among the statements of strategy in light of the series of recent hearings in Congress on the need for a revised AUMF was the President’s announced refusal to expand it:

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.

The speech leaves unclear who, other than AQAP, the Administration thinks counts as an “associated force” of Al Qaeda, so it is likewise unclear how much it matters the President’s commitment not to expand the authority further. By including AQAP under the AUMF blanket, the administration already reads its AUMF use of force authority to extend to a group that did not exist in 2001 and that itself played no role in the attacks of 9/11. Nonetheless, it was somewhat reassuring to hear the President reject an interpretation of the law that would have it extend automatically to any group calling itself Al Qaeda. And his commitment not to sign an expanded AUMF suggests he will not be proceeding simply by adding the names of new terrorist groups to the list the AUMF already covers (namely Al Qaeda, the Taliban and “associated forces”), or by removing the statutory link to the attacks of 9/11 the AUMF currently requires, or by delinking AUMF authority from the requirement (recognized by the Supreme Court) that the statute be informed by the international law of armed conflict. And in principle at least, as the President implicitly recognized, the end of the AUMF war brings legal consequences. As he put it, “we bring law of war detention to an end.”

In the meantime, even in the President’s terms, there is at the very least more than a year between now and anything like the beginning of an end (when combat troops leave Afghanistan). Look forward to a summer of ongoing conversations with Congress and the public about who we can target under the AUMF, and what process they’re due.

Link to White House Fact Sheet on Use of Force Procedures

by Deborah Pearlstein

Another must-read today from the White House, a one-pager titled “Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities.” Here’s the link.

From the introduction:

[T]he President has approved, and senior members of the Executive Branch have briefed to the Congress, written policy standards and procedures that formalize and strengthen the Administration’s rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities. Additionally, the President has decided to share, in this document, certain key elements of these standards and procedures with the American people so that they can make informed judgments and hold the Executive Branch accountable. This document provides information regarding counterterrorism policy standards and procedures that are either already in place or will be transitioned into place over time. As Administration officials have stated publicly on numerous occasions, we are continually working to refine, clarify, and strengthen our standards and processes for using force to keep the nation safe from the terrorist threat.

On very quick read, here’s the part I think matters most:

[L]ethal force will be used outside areas of active hostilities only when the following preconditions are met: First, there must be a legal basis for using lethal force… Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force. Third, the following criteria must be met before lethal action may be taken:
1. Near certainty that the terrorist target is present;
2. Near certainty that non-combatants[1] will not be injured or killed;
3. An assessment that capture is not feasible at the time of the operation;
4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
5. An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

Link to President Obama’s Speech

by Deborah Pearlstein

An hour long as delivered, and full of substantive content. Transcript is here.

So Was Congress Thinking of Authorizing Force in Syria?

by Deborah Pearlstein

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.

Justice Kennedy’s One-Paragraph Concurrence

by Deborah Pearlstein

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.

Keeping up with the Drones’

by Deborah Pearlstein

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.

ASIL on Targeting

by Deborah Pearlstein

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).