Author Archive for
Jens David Ohlin

More thoughts on al-Bashir, Sudan, and South Africa

by Jens David Ohlin

I wanted to follow up on my previous post about the inter-branch dispute in the South African government over executing an international arrest warrant against President al-Bashir of Sudan. A South African court issued an order preventing al-Bashir from leaving South Africa, but notwithstanding this decision, the South Africa government appears to have let him escape anyway. It appears to be a case of executive branch defiance of a binding judicial order.

Several readers have suggested that South Africa is not under a legal obligation to arrest al-Bashir because doing so would violate their obligations to Sudan to respect either head of state or diplomatic immunity under either customary international law or the Vienna Convention. Furthermore, article 98 of the Rome Statute specifically says that a party to the Statute need not arrest someone if doing so would conflict with its other international obligations. Some have suggested that either South Africa or the ICC can request a waiver from Sudan, but if no waiver is forthcoming, then South Africa need not execute the arrest warrant pursuant to article 98, which reads:

Article 98: Cooperation with respect to waiver of immunity and consent to surrender
1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

This is an old debate, with important and excellent contributions from scholars such as Paola Gaeta and Dapo Akande. I want to make a quick point here and just broadly sketch out my view on this matter.

Regardless of the correct view on this matter in general, there are specific aspects to this particular dispute with Sudan that are relevant to the legal analysis. It is not just a question of analyzing the Rome Statute, customary international law, and the Vienna Convention. There are other sources of law to consider.

The charges against al-Bashir include genocide. Although the legal obligations regarding the prevention and punishment of genocide originally emerged from the Genocide Convention, they have now risen to customary international law and represent erga omnes obligations. Furthermore, one of those obligations is the duty to prosecute or extradite any individual accused of genocide. This is a jus cogens obligation that prevails over any supposed legal obligation under the law of diplomatic relations. In this case, then, Sudan is under a legal obligation to either prosecute al-Bashir or turn him over to a competent court for trial. Because of this obligation, South Africa would not be violating any duty to Sudan by arresting al-Bashir and sending him to The Hague.

Even if one does not accept this argument, there is a second reason why Sudan is under a legal obligation to turn over al-Bashir, and by extension why South Africa owes no legal obligation to Sudan in this regard. The UN Security Council, in referring the case to the ICC, invoked its Chapter VII powers and directed Sudan to cooperate with the court. As such, Sudan is under an international legal obligation to cooperate with the court. Since this legal obligation is binding and stems from the Security Council’s Chapter VII authority, it prevails over any conflicting legal obligation. This principle is embodied in Article 103 of the Charter but is also customary law and part of the necessary architecture of our modern Charter-based collective security regime.

(Just to be clear, the details of this analysis need to be flushed out; for purposes of blogging brevity, this was the outline of the argument.)

Bashir Leaves South Africa

by Jens David Ohlin

I’m not one to get hysterical over ICC news, but this recent development today strikes me as deeply problematic, and perhaps a tipping point. But perhaps not the tipping point that the ICC detractors have in mind.

Sudanese President al-Bashir was attending a conference in South Africa this weekend with other heads of state and officials from several African nations. The government of South Africa took the position that Bashir was entitled to immunity and could not be arrested; apparently, this was Bashir’s assumption as well, otherwise I doubt he would have traveled to South Africa in the first place.

However, a South African court ruled that Bashir should be arrested, since South Africa voluntarily signed the Rome Statute and has a legal obligation as a member of the court to execute its arrest warrants. You will recall that the Sudan case began as a Chapter VII referral from the UN Security Council.

In response, the South African government whisked Bashir out of the country, apparently in open defiance of a judicial order preventing them from letting him leave, and just hours before the Supreme Court of South Africa ruled that the government was under a legal obligation to arrest him and explicitly finding that the government’s failure to arrest him would be contrary to the South African Constitution.

From the outside looking in, this looks awfully close to being on the precipice of a constitutional crisis in South Africa. Although one would expect inter-branch disputes in any divided government, such open defiance of a binding judicial order strikes me as deeply harmful to the rule of law. From news reports, I see no evidence that the original judicial order was suspended or otherwise not operative in the hours preceding the Supreme Court’s decision. (But if a reader from South Africa knows the specifics on this question, and the news reports are wrong, please educate us in the comments section.)

What will the ICC do? It strikes me that this level of open defiance — not just of the ICC but also of one’s own judiciary — takes the failure to arrest Bashir to a whole new level. Some will no doubt suggest that this entails that the ICC is a sham with no real power or authority. I take the opposite conclusion. I wonder if this brazenness will now force either the ICC Assembly of State Parties or the Security Council to finally engage in some enforcement actions against states who are not cooperating with the ICC on this matter. Indeed, I would think that the Assembly of State Parties is the appropriate body to take decisive action on this matter. Not only has the ICC concluded that Bashir must be arrested, head of state immunity notwithstanding, but apparently the South African Supreme Court agreed as well. So what excuse can the South African government muster? It would seem that neither international nor even domestic law supports their position, thus weakening the rhetorical power of their arguments. They cannot even suggest that they were caught between their international and domestic obligations.

Of course, I am not an expert on South African law. In the US it is very difficult to get a court to issue an order demanding that the executive arrest someone. (A writ of mandamus in that context would be highly unusual.) Usually the judiciary does the opposite: tells the executive to release someone they have arrested. But South African law might be different in that respect, as indeed are civil law jurisdictions that allow for the triggering of the criminal process in ways other than the discretionary arrest of the suspect by the police. Again, I’d appreciate any information on South African procedure that readers might have.

UPDATE: The name of the court that issued the ruling was the North Gauteng High Court in Pretoria.

Will Al-Bahlul’s Appeal of his Conspiracy Conviction go to the Supreme Court?

by Jens David Ohlin

On Friday, the DC Circuit vacated al-Bahlul’s military commission conviction for conspiracy. There has been, and will be, much coverage of this decision, especially since the decision is a great candidate for a successful Supreme Court cert petition. Assuming that the federal government wants to appeal, which I can’t imagine it would not, the case would allow the Supreme Court to return to an issue — conspiracy as a substantive offense — that it has not addressed since Hamdan (which left many crucial questions unanswered due to the fractured nature of the majority opinion and Justice Kennedy’s unwillingness to take a position on the conspiracy issue). So Bahlul is ripe for SCOTUS consideration.

There are many aspects of the lengthy DC circuit opinion, and others have discussed the Article III issues in greater depth and detail, including Steve Vladeck, Peter Margulies, Steve Vladeck again, and others.  Some are more interested in the constitutional question about what constraints exist on military commission jurisdiction as an exception to the usual constitutional requirements of an Article III court (a judge with life tenure, etc.).

But what interests me more is the government’s argument that although conspiracy is not a violation of the international law of war, there is still sufficient evidence that conspiracy is triable before military commissions as a matter of domestic “common law of war,” something akin to the precedent of military commissions.  In the past I have wondered aloud about the details of this bizarre argument. So what I found most interesting in the DC Circuit’s opinion is that they do not push back as strongly as I would have liked on the government’s methodological framing of this argument, and instead push back on the paucity of evidence for its conclusion. Here is the specific paragraph that interests me:

The history of inchoate conspiracy being tried by law of war military tribunals is thin by comparison and equivocal at best. The government has identified only a handful of ambiguous examples, and none in which an inchoate conspiracy conviction was affirmed by the Judicial Branch. The examples are unpersuasive in themselves and insufficient to establish a longstanding historical practice (page 18).

The opinion then goes on to note the problematic precedent of the Lincoln assassination case, which was prosecuted before a military commission. Although conspiracy was one of the charges, the decision notes that the relationship between conspiracy and the completed offense was totally unclear in the case. (Whatever one thinks of the Lincoln assassination case as a precedent, it was clearly not a case of pure inchoate conspiracy, since the conspiracy was not frustrated and it succeeded in killing Lincoln).) Furthermore, while the Quirin conspirators during World War II were charged with conspiracy, the Supreme Court made no mention of the conspiracy charges when it upheld their convictions from the military commission, preferring instead to rest its analysis on the sabotage charge.

Finally, the majority notes that although Thomas’ dissent in Hamdan clearly relied on inchoate conspiracy as a part of the domestic common law of war, the majority contends that at most there were only three votes for this position at the time of Hamdan. To the extent that other justices referred to the common law of war in Hamdan (the Stevens opinion), it was used as a source of constraint, rather than expansion, for the jurisdiction of the military commissions.

(One problem I noted in reading the opinion is that on page 37 of the opinion the majority refers to JCE and aiding and abetting as “offenses against the law of war,” instead of referring to them as modes of liability or legal doctrines. Not sure why they would say that.)

Of course, I’ve left out  a host of other constitutional issues that are important in this case, in part because what concerns me is the fate of conspiracy under the law of war, and how courts should understand the “law of war” as a body of law. Part of what makes this case so fascinating is that the government and the defense have radically different ideas of what the law of war is. Although the majority opinion in Bahlul does not explicitly resolve this question, it does say on multiple occasions that both the Quirin and Hamdan holdings were based on the international law of war.

Will the Supreme Court grant cert in this case? I am inclined to say yes, simply because hearing this case will help clarify the jurisdiction of military commissions in both a general and specific sense. The general element is that the Supreme Court will have the opportunity to clarify how and why military commissions operate as exceptions to the Article III requirement. The specific element is that the Supreme Court can clarify its position on the crime of conspiracy, which continues to be at issue in terrorism prosecutions.

The Nature and Scope of the War in Afghanistan

by Jens David Ohlin

Two recent court filings bring to light important questions about the scope and nature of the armed conflict in Afghanistan. Who would have thought that so many years after 9/11 we would still be asking important questions about the nature of the hostilities there.

First, on May 20, 1995, counsel for detainee Al Warafi filed a reply brief in his habeas litigation in the D.C. district court. Warafi argues that his law of war detention is illegal under international law because the war in Afghanistan is over. Under applicable international law, detainees held pursuant to the law of armed conflict should be repatriated upon the conclusion of the armed conflict that served as the factual and legal predicate for their detention. As evidence that the war in Afghanistan is over, Warafi points — as he has in previous filings — to declarations made by President Obama that the war in Afghanistan is over. This is a clever argument because it appeals to a pre-existing tenet of the separation-of-powers jurisprudence that federal courts, and especially the D.C. Circuit, have respected before: that the judiciary should defer to executive branch judgments about matters pertaining to national security and armed conflict. If the President believes that the war in Afghanistan is over, why should a federal judge decide differently? See Ludecke v. Watkins (1948).

In the government’s opposition brief filed in April, the Justice Department makes a distinction between the existence of an armed conflict and the existence of ongoing hostilities. If I understand the government’s position correctly, the Justice Department is arguing that irrespective of what President Obama has said publicly about the end of the “war” in Afghanistan, executive branch officials have consistently noted that there are ongoing hostilities in Afghanistan and that U.S. DoD personnel continue to be engaged in military operations there. (Indeed, the Defense Department General Counsel gave a major policy address at the American Society of International Law Annual Meeting in April 2015, which many OJ readers attended, where he specifically noted that the U.S. military continues to operate in Afghanistan in offensive military operations).

This argument can be interpreted in multiple ways. First, it could mean that the foundation for law-of-war detention is not the existence of a state of armed conflict between the parties but rather the existence of ongoing hostilities; these two factors usually coincide but at their margins they might diverge, especially before and after an armed conflict. Second, it could mean that the President was talking about war in a political or even constitutional sense, but was not making a statement regarding the formal existence of an armed conflict in the sense that it is meaningful for IHL lawyers.

In his reply brief, Al Warafi argues that “war”, “combat mission”, and “hostilities” are co-extensive terms, so that the President’s announcement of the end of the combat mission is logically the same as announcing the end of the armed conflict in Afghanistan. Also, Al Warafi argues that the ASIL policy address by DoD is irrelevant to the analysis because it came after Al Warafi filed his petition. Indeed, the reply brief refers to the ASIL speech as “self-serving” — implying that the DoD was motivated to make those statements by a legal need to justify Al Warafi’s continued detention (and any others who are similarly situated).

Now for the second litigation. Hamidullin was a Taliban commander in Afghanistan who engaged in military action against US forces. He was captured, brought to the US, and then indicted in federal court in Virginia for providing material support to terrorism and other charges. On May 4, 2015, he filed a motion to have the indictment dismissed, arguing among other things that he was protected by combatant immunity while engaged in hostilities in Afghanistan. His motion will require the court to pass judgment on the nature of the armed conflict in Afghanistan at the time he engaged in his acts of belligerency (2009).

Clearly, the armed conflict between the US and Afghanistan began as an international armed conflict (IAC). Everyone agrees on that. However, I think the US government position is that once the Taliban were defeated and removed from power, the conflict transformed into a non-international armed conflict (NIAC) between the new government of Afghanistan and the Taliban acting as a non-state actor. The U.S. is a party to this conflict as a co-belligerent fighting alongside the “new” government of Afghanistan, helping them to fight their NIAC against the Taliban.

However, Hamidullin has an innovative argument. He contends that the Geneva Conventions extend combatant immunity to deposed government forces who were protected by the privilege before they were removed from power. Here is the bulk of the argument:

Given the ongoing protracted conflict in Afghanistan, the displacement of the Taliban government in December 2001 did not fundamentally alter the fact that the conflict began as an international armed conflict between two contracting parties to the Geneva Conventions. Indeed, article 4(A)(3) of the GPW was designed to encompass the armed forces of a government that was deposed by an invading state. Specifically, the language defines prisoners of war to include
“members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” GPW, art. 4(A)(3), 6 U.S.T. at 3320, 75 U.N.T.S. at 138. This provision was an innovation over previous international treaties, and was specifically drafted to cover “members of regular armed forces, like the Free French in the Second World War.” George Aldrich, Symposium: the Hague Peace Conferences: the Laws of War on Land, 94 Am. J. Int’l L. 42, 43 (Jan. 2000). In other words, the GPW was intentionally crafted to
include the armed forces of a deposed government as prisoners of war, even when a successor government (i.e., the Vichy regime or the government of Hamid Karzai) is recognized by the detaining power (i.e., Germany or the United States) as the legitimate government of the territory.

The Commentary to the GPW likewise explains that this provision “covers armed forces which continue to fight in a ‘national redoubt’, under the orders of an authority or Government which has its headquarters in that part of the country while the occupying authorities may have recognized a Government, which may or may not support them, in that part of the country occupied by their troops.” Commentary on III Geneva Convention at 63-64 (Jean Pictet ed. 1960). Article 4(A)(3) thus applies in the context of a “partial or total occupation of the territory of a High Contracting Party,” GPW art. 2, 6 U.S.T. at 3318, 75 U.N.T.S. at 136, a condition under which the provisions of the Third Geneva Convention “shall apply.” Id

Does this argument work? As readers now, I am very interested in arguments regarding the extension of the combatant’s privilege to non-state actors in some very limited circumstances. (In general, I believe that the current literature over-simplifies the dichotomy between IAC and NIAC and falsely assumes that the privilege is never available outside full-blown IACs). It seems intuitively correct to me that it would be absurd for IHL to withdraw the privilege of combatancy the minute the government forces are forced from power and are rebranded–by their opponents–as rebels and non-state actors. On the other hand, does this grace period last forever? Say what you will about this argument, but the Taliban were forced from power a long time ago in Afghanistan.

I would note that the Pictet Commentary also includes the following passages, not quoted in the brief above:

It is not expressly stated that this Government or authority must, as a minimum requirement, be recognized by third States, but this condition is consistent with the spirit of the provision, which was founded on the specific case of the forces of General de Gaulle. It is also necessary that this authority, which is not recognized by the adversary, should either consider itself as representing one of the High Contracting Parties, or declare that it accepts the obligations stipulated in the Convention and wishes to apply them.

This latter paragraph raises two important questions that I direct to OJ readers. First, has the Taliban formally declared that it accepts the obligations of the Geneva Convention and wishes to apply them? Second, and more importantly, is the Taliban recognized as the legitimate authority of Afghanistan by third parties? I honestly do not know the answer to that question and would like to hear from readers on this point. I think the Pictet Commentary is suggesting here that this Geneva provision should not apply in the case of non-recognized forces whose lack of recognition flows not just from their adversary in the armed conflict but is, rather, universal non-recognition from everyone. This would seem to be an important qualification to prevent the provision from being manipulated.

Will the CIA abandon the analyst/operative divide?

by Jens David Ohlin

Mark Mazzetti of the New York Times says that John Brennan has proposed a major reorganization of the CIA that will, to a large extent, break down the deep bureaucratic divide between agency analysts and clandestine operatives.

Historically, analysts engage in research and, as their name suggests, intelligence analysis. Some of that was obscure and abstract–for example writing reports on the political situation in a country and the likelihood that a particular head of state might be deposed. But other aspects of that research might be of more immediate relevancy for agency clandestine operations–for example analysis of intercepted communications between known terrorists oversees that might yield actionable intelligence for a particular operation. However, despite the obvious relevance of the work performed by analysts, they were traditionally organized into separate divisions and reported to separate department heads from their operative counterparts who plan and execute clandestine operations oversees.

Now, John Brennan wants to collapse that distinction. As Mazzetti notes, there is already a template for collapsing the rigid boundaries between the roles. The CIA Counterterrorism Center combines analysts and operatives into a single division devoted to stopping terrorist attacks–a project that involves close cooperation between analysts and operatives. Brennan would take that successful model and apply it to the entire agency. According to Mazzetti, Brennan wants to divide the agency into geographical divisions responsible for both analysis and operations in each area of the world, just as the U.S. military is controlled by regional commanders.

Will Brennan get his way? Mazzetti quotes one former agency employee who is skeptical:

“Mark M. Lowenthal, a former senior C.I.A. analyst, said that the reorganization ‘is not going to go down smoothly’ at the agency, especially among clandestine spies who have long been able to withhold information from analysts, such as the identity of their foreign agents. ‘The clandestine service is very, very guarded about giving too much information about sources to the analysts,’ he said.”

“But Mr. Lowenthal, who said he had not been briefed about the reorganization and was basing his understanding of Mr. Brennan’s plan on news accounts, said that the new mission centers could help avoid a debacle like the intelligence assessments before the Iraq war, when analysts trusted information from sources they knew little about, and who were later discredited.”

The full implications of the bureaucratic reshuffling aren’t clear based on the skeletal news accounts so far. However, the plan does not appear to entail the dismantling of the CIA Directorate of Operations (aka National Clandestine Service). Rather, if I understand it correctly, operatives working for the directorate will report to a regional commander responsible for overseeing both analysts and operatives working in that geographical area. Where the overall head of the directorate of operations fits into this organizational chart, I have no idea.

One War Begins, Another Ends?

by Jens David Ohlin

Yesterday, as members of Congress continued to debate the need for a new AUMF against ISIS, lawyers for Guantanamo detainee Al Warafi have filed a new habeas petition to the D.C. District Court, arguing that the basis for detaining Warafi evaporated when the war in the Afghanistan ended. Specifically, the petition argues that the administration has conceded in prior litigation that the basis for Warafi’s detention was his membership in the Taliban. In the past, Warafi had argued in that he was a medic for the Taliban and his continued detention violated IHL’s rules on the treatment of medics. That argument was ultimately rejected by a district court which concluded that Warafi’s status was not analogous to that of a medic in a traditional army.

Warafi’s new argument takes as its starting point that last legal conclusion. Since Warafi was deemed detainable as a regular member of the Taliban, the authority for his continued detention evaporated with the conclusion of the war in the Afghanistan.

How do we know that the war in Afghanistan is over? On this point, Warafi’s petiton relies exclusively on Obama’s own statements that the conduct of hostilities in Afghanistan is over:

On December 15, 2014, President Obama stated that “[t]his month, after more than 13 years, our combat mission in Afghanistan will be over,” and “[t]his month, America’s war in Afghanistan will come to a responsible end.” Exhibit A, p. 2. Then, in the State of the Union Address on January 20, 2015, the President stated, without any qualifications or conditions, that “our combat mission in Afghanistan is over.” Exhibit B, p. 1.

These pronouncements had been foreshadowed during the preceding two years by repeated presidential statements that the United States’ war in Afghanistan would be ended, and its combat mission would be terminated, by the end of 2014. On February 12, 2013, President Obama declared in the State of the Union Address that “[b]y the end of [2014], our war in Afghanistan will be over.” Exhibit C, p. 5. On May 23, 2013, he stated that “[t]he Afghan war is coming to an end.” Exhibit D, p. 7. On November 25, 2013, he stated that ‘[t]he war in Afghanistan will end next year.” Exhibit E, p. 1. On December 20, 2013, he stated that, “[b]y the end of next year, the war in Afghanistan will be over.” Exhibit F, p. 2. In the State of the Union Address on January 28, 2014, he repeated that “we will complete our mission there [Afghanistan] by the end of this year, and America’s longest war will finally be over.” Exhibit G, p. 6. The President followed up with a prepared statement on May 27, 2014, that “this year, we will bring America’s longest war to a responsible end,” that “this is the year we will conclude our combat mission in Afghanistan,” and that “America’s combat mission [in Afghanistan] will be over by the end of this year.” Exhibit H, p. 1. On December 28, 2014, the United States Case 1:09-cv-02368-RCL Document 80 Filed 02/26/15 Page 3 of 7- 4 – marked the end of the war in Afghanistan with a ceremony in Kabul.1 Exhibit I. On that date, President Obama released a statement that “the ceremony in Kabul marks a milestone for our country” because “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.” Id.

The argument relies exclusively on the President’s own statements regarding the conduct of hostilities, rather than engage in an underlying assessment of the actual situation on the ground. This strategy seems designed to appeal to the D.C. Circuit, which might be more inclined (than another court) to view the President’s assessment as dispositive of the issue:

The D.C. Circuit has also stated that the “determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war.” Al-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010). “Whether an armed conflict has ended is a question left exclusively to the political branches.” Al Maqaleh v. Hagel, 738 F.3d 312, 330 (D.C. Cir. 2013), cert. dismissed sub nom. Al-Maqaleh v. Hagel, 135 S. Ct. 782 (2014). Under these precedents, a conflict is over when the President says it is over.

The argument also suggests an estoppel point which goes unexpressed in the petition: since the administration has conceded that the war is over in public statements, it is estopped from arguing before the judiciary that the war continues (for the purposes of justifying Wafari’s continued detention).

One issue is whether Obama’s multiple statements regarding the conclusion of “our combat mission in Afghanistan” is the same thing as saying that hostilities there are over. Does the former imply the latter? It seems like a viable and legitimate inference to draw, although none of the Obama quotes in the petition include the actual words: “the hostilities are over.” Is that distinction important? Or would it be overly legalistic to insist that the political branch use the phrase “hostilities” in its public pronouncements?

The petition also tees up another important legal issue. Is there a “wind up” period after the conclusion of hostilities when continued status-based detention is still justified, or must law-of-war detainees be released immediately upon the conclusion of hostilities? As this ICRC analysis notes, the Hague Regulations once required that POWs be released as soon as possible after the conclusion of peace, but the Third Geneva Convention requires that “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities” (article 118). Most legal experts assume that it was significant that the codified law moved from a “conclusion of peace” standard to a “conclusion of hostilities” standard, because the latter requires repatriation of soldiers after fighting ends, even if there is a delay in negotiating a formal state of peace. Also, article 118 of the Third Geneva Convention requires release “without delay” as opposed to the older and looser requirement of “as soon as possible,” which is vague and somewhat indeterminate. So the law has moved over time to require quicker repatriation of captured soldiers. Of course, this assumes that IAC principles of detention are the relevant principles governing Gitmo detention, which is itself a contested and controversial question.

Overall, the Warafi petition highlights that extinguishing or ending an armed conflict is often just as legally complex as declaring or authorizing an armed conflict. Both involve questions of inter-branch allocations of constitutional authority (Article I versus Article II of the US Constitution), as well as the relative value of public statements versus actual events on the ground.

How to Authorize War

by Jens David Ohlin

The White House has proposed a draft resolution authorizing the President to use military force against ISIL (also know as “ISIS” or simply the “Islamic State”). While it is laudable that the president is asking for specific congressional authorization for military strikes against ISIL, I remain troubled by several aspects of the proposal.

First, the passage of the proposed resolution would replace the existing patchwork of justifications for the current military operations, including the Constitution’s Article II commander-in-chief power, the 2001 AUMF (the so-called “9/11 AUMF”), and the 2002 Iraq AUMF. Regardless of the current administration’s position regarding the lawfulness of military force in Iraq and Syria in the absence of a new AUMF, all three of the prior foundations remain available–at least in theory–as justifications for military action against ISIL. The only way around this is to repeal the 2001 and 2002 AUMFs or to explicitly state in the new AUMF that it, in some way, supersedes them. This is crucially important.

If the prior AUMFs remain on the books and the administration continues to maintain that they are sufficient to justify the current level of military force against ISIL, then it is not clear what the new AUMF is actually accomplished. In particular, as many others have noted, the constraints and limitations in the new AUMF become effectively meaningless because the administration could always rely on the unrestricted and unconstrained authorizations already on the book and still valid. This problem is created by the absurdity of having overlapping statutory authorizations for a military campaign, creating a pick-and-choose menu for this (or future) administration to use when justifying its military deployments. This isn’t a restaurant; this is war. There are too many menu options.

I wonder if there is a middle ground to solve this problem without explicitly repealing prior AUMFs. For example, could the new AUMF simply be amended to state that the president cannot rely on prior AUMFs as authorizations against ISIL? This would allow the prior AUMFs to stay on the books (which plenty of congressional leaders will be unwilling to repeal anyway) while still limiting their applicability with regard to ISIL. It would make the new AUMF the one and only AUMF applicable to ISIL targets. One could describe this as a “partial repeal” or “partial de facto repeal” of the prior AUMF, or you could describe it simply as making the new AUMF a superseding AUMF with regard to ISIL. This would clarify that the constraints in the new AUMF are meant to apply and that the older unconstrained AUMFs cannot be used as an authorization against ISIL.

The next issue is the use of the phrase “associated forces” in the draft AUMF. The phrase “associated forces” has been used before, most notably in the Detainee Treatment Acts as well as in the federal government’s briefs in Guantanamo Bay habeas litigation before the D.C. Circuit. That being said, the phrase never appeared in the 2001 AUMF and Congress never before authorized the use of force against associated forces of al-Qaeda. What’s different now is that the proposed new AUMF includes a very broad definition of associated forces that is arguably much wider than the concept of co-belligerency from which the term “associated forces” gains whatever legitimacy and reflective glory it has. The new definition of associated forces also includes successor entities that are sufficiently related to the original group. Here is the language:

SEC. 5. ASSOCIATED PERSONS OR FORCES DEFINED.
In this joint resolution, the term ‘‘associated persons or forces’’ means individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.

Apparently the Administration is concerned that ISIL will collapse and might be replaced by an equally dangerous jihadist entity, with new leadership, but exhibiting the same level of dangerous. The administration wants the AUMF to apply to those groups as well, even if they are not, properly speaking, a part of ISIL. (Incidentally, the notion of “closely related successor entity” reminds one of Robert Nozick’s closest continuer theory of personal identity.)

But there are deeper problems to the use of “associated forces” concept beyond the broad definition offered in the draft AUMF. The whole idea of using “associated forces” in an AUMF is problematic. In order to understand why, it is important to remember the role that military authorizations play within our modern constitutional order. Congress no longer declares war, although it retains the constitutional authority to do so. Pursuant to its constitutionally mandated role in war making (and as articulated in the War Powers Resolution), Congress has the power to authorize the president to deploy military force—a necessary step whenever the President’s Article II authority runs out. There are many disputes about the nature and scope of the Article II power, but unless you believe in an unlimited Article II power, you must recognize that Article II has an outer limit, at which point Congressional authorization is required. That process is essential for multiple reasons.

First, the involvement of Congress provides for an open, transparent, and deliberative assessment of the wisdom of deploying force. “Wisdom” here includes questions of law, morality, and the burden that will be placed on the nation’s shoulders to execute the action. Although the executive branch engages in deliberation, it is neither open nor transparent; it is secretive and insular. Only in the legislative branch do these issues get aired with the appropriate amount of light. At the end of the conclusion of this process, the public knows who we are fighting, and why.

Second, the AUMF announces to the world community the nature of our armed conflict. It sends a signal to the world community regarding the nature of the conflict and the underlying legal and moral rationale for its commencement. All of this is essential for the world community’s assessment of jus ad bellum and its proportionality constraints. Only if they know who and why we are fighting will they be able to decide whether our actions comply with basic principles of international law. The use of the “associated forces” concept in the new AUMF frustrates both of these goals. In order to fulfill its communicative obligation, both to the American people and to the world community, Congress needs to identify—by name—the organizations that we are fighting. Is it too much to ask that we identify, with specificity, the other party to our armed conflict? This is war; the identity of the belligerents isn’t peripheral to the event, its absolutely central and arguably a sine qua non. No belligerents, no armed conflict.

Why would I suggest that Congress owes a communicative obligation to the world community? Usually we don’t talk of Congress owing supra-national obligations to foreign people. But this note of skepticism misconstrues the nature of the communicative obligation. Congress owes the American people an obligation that it communicate to the world community the nature of our armed conflict. Why? Because the military force is being deployed on behalf of the American people, and its lethality, justified or not, will ultimately be attributed to the American nation. In that context, the announcement of military force, in a public and open fashion to the world community, is essential so that the world community knows why the “American people” is engaged in lethal force.

The default presumption in international law is that lethal force is unlawful unless justified by self-defense or Security Council authorization. While in this case I believe that force against ISIL is justified under international law, this is only the first step. The second step is that this justification must be communicated to the world, and Congress owes it to the American people that this communication be clear and successful. Failure to identify the enemy belligerent by name frustrates this communicative obligation.

The Administration might argue that ISIL could collapse in the future and be replaced by a successor organization with a different identity, new leadership, and a different name. What then? The answer is simple: pass a new AUMF.

ICTY upholds Genocide Convictions in Srebrenica Case

by Jens David Ohlin

Today, the ICTY Appeals Chamber affirmed genocide convictions in the Srebrenica case, Prosecutor v. Popović et al. The full Appeals Chamber judgment is here.  The PDF document is 792 pages (including a few short dissents), which is long-ish but certainly not extraordinary by ICTY judgment standards.

In my opinion, the most critical part of the judgment relates to the connection between the defendants, their Joint Criminal Enterprise (JCE), and the perpetrators who actually performed the killings. As you will recall, back in the old days when the JCE doctrine was first brought to fruition in the Tadic case, the assumption was that the court would convict defendants who were part of the same JCE as the perpetrators who performed the actual killings. Later ICTY judgments “de-linked” leadership-level defendants from the relevant physical perpetrators and held that a conviction for JCE did not require that the defendants and the perpetrators were part of the same JCE. This opened up a big question: what link between the defendants and the perpetrators was required in order to convict under the JCE doctrine? Furthermore, what doctrine would justify imposing liability on the defendants when the JCE doctrine was insufficient by itself to establish the link between the defendants and the physical perpetrators. What standard would be used to evaluate the required link?  I was hoping that the Popović judgment would resolve these questions definitively, but it does not appear to have done so.

Here is the relevant paragraphs in the judgment regarding one set of killings:

1065. The Appeals Chamber observes that the Trial Chamber considered that the fact that killings occurred in July 1995, after the fall of Srebrenica, and that the victims were Bosnian Muslim men from Srebrenica, were sufficient to link the Trnovo killings to the common purpose of the JCE to Murder. The Prosecution correctly points out that the principal perpetrator of a given crime need not be a member of the JCE and that it must be determined whether the crime in question forms part of the common purpose. The Appeals Chamber reiterates that: to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The Appeals Chamber does not consider the Trial Chamber’s finding to satisfy this requirement. The Appeals Chamber, Judge Niang dissenting, therefore finds that the Trial Chamber’s failure to further elaborate on this link amounts to a failure to provide a reasoned opinion. In view of the Trial Chamber’s error of law, the Appeals Chamber will consider whether the factual findings in the Trial Judgement as a whole would allow a reasonable trier of fact to establish a link between the members of the Scorpions Unit and a member of the JCE to Murder.

1066. Although insufficient on their own to establish a link, the Appeals Chamber notes that the Trnovo killings share certain features with other crimes committed in furtherance of the common plan, namely that the victims were Bosnian Muslim men from Srebrenica, the killings occurred “in July 1995, after the fall of Srebrenica”, and the victims were lined up and shot with automatic rifles.

1067. As previously discussed, one way to establish the required link would be to demonstrate that in the lead up to the Trnovo killings, the Scorpions Unit co-operated with the VRS, either directly or through the MUP forces, with respect to the custody or control of the prisoners killed in Trnovo. In this regard, the Prosecution asserts it is reasonable to infer that the Bosnian Muslim men killed in Trnovo were captured by or surrendered to the BSF who then handed them over to the Scorpions Unit. The Appeals Chamber observes, however, that the Trial Chamber, having considered and rejected similar arguments, concluded that “₣ağny inference that there was coordination with the VRS Main Staff is speculation”. In reaching this conclusion, the Trial Chamber rejected the Prosecution’s arguments that: (1) the Bosnian Muslim men were arrested in the Drina Corps’ zone of responsibility; (2) the logistics of their transport would have required VRS Main Staff involvement; and (3) the Scorpions Unit would have been unable to take any actions without orders from the BSF and the MUP in Trnovo. The Trial Chamber also took into consideration that it was not presented with evidence: (1) indicating that the six men were detained in the Drina Corps’ zone of responsibility; (2) shedding light on the men’s journey from Srebrenica to the Trnovo area; or (3) indicating that there was any VRS Main Staff involvement in the six men coming into the custody of the Scorpions Unit. The Appeals Chamber is not persuaded that the Trial Chamber’s conclusion – that to infer co-ordination between the Scorpions Unit and the VRS Main Staff would be speculative – is undermined by either the evidence that the six Trnovo victims were last seen along the route of the column between Bratunac and Nova Kasaba, or that other Bosnian Muslim men from the column were captured by or surrendered to the BSF stationed along the Bratunac-Konjevi} Polje Road.

1068. In submitting that the Scorpions Unit and MUP forces were closely co-ordinated during the relevant time period, the Prosecution relies on evidence that demonstrates that: (1) the Scorpions Unit was deployed in Trnovo from late June through at least the end of July 1995; (2) on 1 July 1995, Borovcanin reported on activities on the Trnovo battlefield, including on an attack involving the Scorpions Unit; (3) Borovcanin was in Trnovo on the Sarajevo front until he was resubordinated on 10 July 1995; (4) a mixed company of joint Republic of Serbian Krajina (“RSK”), Serbian and RS MUP forces was among the units under Borovcanin’s command when he was resubordinated and that during the night of 10 July 1995 this mixed company was to withdraw from the Trnovo battlefield and assemble in front of the Public Security Station (“SJB”) in Bratunac by noon the following day; and (5) upon arrival in Bratunac, Borovcanin was to report to Krstic.3113 This circumstantial evidence suggests that Borovcanin worked with the Scorpions Unit and the VRS Sarajevo-Romanija Corps while he was in Trnovo. However, when considered alongside the Trial Chamber’s finding that the only evidence about the whereabouts of the mixed company of joint RSK, Serbian, and RS MUP forces after re-subordination was that they did not arrive in Bratunac,the Appeals Chamber is not persuaded that the only reasonable inference available was that Borovcanin continued to co-ordinate with the Scorpions Unit after he was re-subordinated on 10 July 1995. The Appeals Chamber further emphasises that the killings were committed in Trnovo, which although only 150 kilometres from Zvornik, falls within the area of responsibility of the Sarajevo-Romanija Corps, rather than the area of responsibility of the Drina Corps like the other crimes. Finally, with respect to the Prosecution’s argument that the BSF continued to search for ABiH soldiers and to capture and kill smaller groups of Bosnian Muslim men fleeing from Srebrenica even after the mass killings were complete, the Appeals Chamber considers that although it demonstrates the continued implementation of the murder operation, it is of limited relevance in showing a link between the Scorpions Unit and a JCE member. The Appeals Chamber, Judge Niang dissenting, therefore considers that a reasonable trier of fact could not have established a link between the members of the Scorpions Unit and a member of the JCE to Murder.

1069. In light of these considerations, the Appeals Chamber, Judge Niang dissenting, considers that a reasonable trier of fact could not have concluded that the members of the JCE were responsible for the Trnovo killings. The Appeals Chamber, Judge Niang dissenting, therefore grants in part Beara’s ground of appeal 17 and Popovic’s appeal in this regard, and reverses their convictions under the following counts to the extent they concern the Trnovo killings: Count 1 (genocide); Count 3 (extermination as a crime against humanity); Count 5 (murder as a violation of the laws or customs of war); and Count 6 (persecution as a crime against humanity).

I do not have an opinion regarding the sufficiency of the evidence and whether the Appeals Chamber should have imputed the killings to the defendants in this case. Rather, I am concerned that the Appeals Chamber did not do enough to establish a particular standard or doctrine to “re-link” perpetrators with killings performed by individuals outside of the JCE. There is nothing close to a standard announced here, but rather the Chamber simply reasserts that there must be some connection in order to justify the imputation. Well yes, but what criminal law doctrine structures that imputation? To me it’s a bit like saying that a defendant in a criminal trial can be punished for someone else’s killing as long as there was some coordination between them, but without specifying whether the defendant is an accomplice, conspirator, instigator, or whatever.

The Chamber performs a fact-intensive inquiry into the matter without any particular doctrine or mode of liability to aid the analysis. It does say that cooperation or coordination would be “one way to establish the link,” and that there was insufficient evidence of such cooperation or coordination in this case. OK, but does that mean that a link could be established in some other way? And if so, what is the overall Dogmatik justification for imputing the criminal actions of non-members to members of the JCE?

Again, I’m not objecting to the result in this case, but rather questioning whether the Appeals Chamber has answered the necessary doctrinal questions and whether they have given sufficient guidance to further Trial Chambers. The results here seem decidedly fact-dependent and, shall we say, under-theorized. 

Hostages and Human Dignity

by Jens David Ohlin

News reports indicate that Jordan is engaged in frantic negotiations with the Islamic State (ISIS) over a proposed hostage swap. Jordan is apparently willing to turn over a prisoner, would-be suicide bomber Sajida al-Rishawi, in exchange for ISIS releasing both a Jordanian air force pilot and a Japanese captive. For reasons that aren’t entirely clear, the deal appears to have collapsed.

Earlier video appeared to show that another Japanese hostage was murdered by ISIS–a development that provoked shock and outrage in Japan. ISIS hostage-takers had earlier demanded $200 million from the Japanese government in exchange for releasing the two Japanese nationals. Although Japan is not militarily engaged in the armed conflict against ISIS, the terrorist organization said that its actions were motivated by the financial assistance that Japan had pledged to the regional effort, though Japan clarified that the financial assistance was for non-military efforts. Unfortunately, that clarification did not dissuade ISIS from continuing to threaten the life of the remaining hostage.

It is unclear what policy Japan is following regarding negotiating with ISIS generally and paying ransom demands specifically.

The United States and Britain have explicit policies against paying ransom to ISIS or other terrorist organizations. Consequently, while many captives from other European countries have been released after their governments paid ransoms to ISIS, several U.S. and British hostages have been brutally beheaded because their governments refused to negotiate or give money to ISIS to win their release. This has caused anguish for the families of the hostages.

In this post, I don’t want to address the normative question of whether it is best (morally or strategically) to pay a ransom. Of course, paying the ransom wins the release of the individual hostage. However, it also emboldens and encourages ISIS and other terrorists to perpetrate more kidnappings. It is precisely for this reason that the U.S. refuses to negotiate and pay money to ISIS.  The ransom payments are bankrolling the ISIS war in Iraq and Syria. So the European countries that are paying the ransoms are providing (indirectly and under duress) the resources for ISIS to fight the military coalition that is trying to stop them from carving its caliphate out of the territory of Iraq and Syria.

Rather, I want to ask the descriptive question of why most European governments are willing to pay the ransoms while the U.S. and Britain will not.  Both sides of this issue understand the pragmatic consequences. So why the different conclusions?

I have spent a long time thinking of the question and the only answer i can find is: human dignity. The U.S. and British position sacrifices the interests of the individual hostage in order to serve a larger social goal: denying ISIS the financial resources to continue its military campaign. This is a consequentialist calculation. The problem is that it is not so good for the individual hostage.

European governments care about the lives of the hostages and are willing to save them, even though they know that saving them will make the overall situation worse, both for the global community as well as their own citizens will inevitably be taken hostage again. But they are unwilling to balance away the interests of the hostage for some larger societal interest. This preservation of, and respect for, human dignity is deeply entrenched in some European legal cultures. For example, article 1 of the German Constitution says that human life is inviolable and cannot be balanced away. Utilitarian balancing is impermissible as a matter of constitutional law if it violates the human dignity of the individual, who is entitled to moral and legal respect. This means that the life of the hostage cannot be subordinated to the global interests that are advanced by the policy of non-negotiation.

Of course, one caveat here. The cause of the hostage’s peril stems from an outside agent (ISIS), not the government. So the government is not directly harming the hostage by not paying the ransom. This makes the situation much different from the German Airliner case, where the German courts concluded that authorizing the shooting down of a hijacked airliner would be unconstitutional because it would violate the human dignity of the innocent passengers. In that situation, the passengers would have been killed by the German government, while in the case of the hostages, their deaths would be caused by ISIS, not their own government. This is a relevant difference, both morally and legally.

That being said, I still think that, as a descriptive matter, the commitment to human dignity and moral individualism is at play in the background here. For some European governments, as well as their domestic populations exerting political pressure on them, the interests of individual citizens cannot be dismissed simply because a larger social policy requires doing something different. For some European governments, that social policy sounds particularly cold because it indirectly ends up condemning the individual hostages. The question is why these governments think this result would be cold. And I think the reason why is because the commitment to Kantian dignity is more deeply engrained in some legal cultures than others.

 

Law Blogging as Law Making

by Jens David Ohlin

For 10 years, Opinio Juris has served as a forum for short-form legal scholarship. Many posts were short and simple, quickly flagging a particular development or issue and bringing it to the attention of international lawyers across the globe. But other posts were far more in depth, analyzing a complex legal issue with great subtlety and persuasion. What strikes me about the longer posts is that they often read like mini-articles, enhancing and enriching legal scholarship with shorter articles that might not–or could not–be explored in regular law review articles. Producing legal scholarship on a daily blog allows for an immediate impact that would be impossible in a law review or law journal with a 6-month (or even 2-month) publication cycle.

Opinio Juris posts have been cited in many law review articles. A simple search for opniojuris.org in any law review database will pull up hundreds of examples of law review blog posts that are now cited as scholarship alongside treaties, cases, and more conventional articles. Opinio Juris postings also impact the daily practice of law in important and urgent cases. To name just one well-known and recent example, Kevin Heller wrote about the U.S. drone strike against Anwar al-Awlaki and queried whether it violated the federal murder statute. It was widely reported that Kevin’s post prompted the Office of the Legal Counsel in the Justice Department to substantially revise their draft memo regarding the lawfulness of targeting al-Awlaki. If that isn’t real-world impact, I don’t know what is.

I like to use blog posts, on Opinio Juris and elsewhere, to sound out ideas that eventually make it into law review articles. It’s often easy to sketch out the basic contours of an argument and see what kind of reaction it generates. Then, when it comes time to render the argument in article form for a law review, one already knows which aspects of the argument will generate the most push-back and will require a stronger defense. In many cases one can predict this in advance, but in other situations the audience reaction is genuinely surprising and counter-intuitive. In this way, law blogging improves legal scholarship.

For most of the last 10 years, I’ve been a reader of Opinio Juris, not a blogger. My migration from the former to the latter is relatively recent. Ten years from now, I hope we are looking back on another decade of compelling and intense discourse.

What We Fight About When We Fight About Torture

by Jens David Ohlin

Right now we are locked in a complex dispute over the claims in the SSCI Torture Report that the CIA’s torture program was ineffective (as well as illegal). Part of the dispute can be frustrating because I think we are conflating a number of more distinct questions when we ask whether the torture was effective or not. Consider the following article from John Yoo who says that the torture report should be confined to the “dustbin” of history because it is inaccurate. He claims that torturing the detainees helped the CIA find Osama Bin Laden plain and simple.

We need to be more precise in order to have this conversation. Effectiveness or ineffectiveness are actually cluster concepts composed of more specific elements. I will try to tease apart the components here (there are at least five).

First, there is the issue of whether the CIA received intelligence from torture. In evaluating the dueling claims from the SSCI report and the CIA, it seems clear to me that the CIA did receive some intelligence about Bin Laden’s courier from the detainees who were tortured. The real question is evaluating the significance of that intelligence as compared to the other data points in the overall intelligence assessment of the CIA. That’s a complicated question and simply asking whether or not the CIA received intelligence about the courier from the tortured detainees does not tell you anything about the significance of the information. For that you need to ask some different questions which I now elaborate.

Second, there is the question of whether that intelligence was also received from other sources. Even if the tortured detainees provided intelligence about the courier, the more relevant question is whether that information was also received from our sources. That makes a huge difference. The critics of the report (including the CIA) make it sound as if the information from the courier came exclusively from the tortured detainees, but in fact this might have been a situation of overdetermination. The CIA already knew about the courier. If they received the information again from a tortured detainee, it is literally true that they received intelligence from the tortured detainee but the significance of that information is substantially reduced (perhaps to zero).

Third, there is the question of whether the intelligence could have been received from a non-torture source, either by non-coercive interrogation or some non-interrogation method. This question is important because it is relevant to the issue of “unavoidability” that plats a part in the legal analysis of necessity. At least some of the information came from multiple sources including detainees who provided the information before they were tortured. This suggests that torturing the detainees was avoidable because there were other non-torture avenues available for the CIA to get the information. It is also important to ask — and not enough people are asking and discussing this — whether the CIA could have used methods other than interrogation to get information about the courier. Of course, this discussion is stymied by the fact that the public does not have access to CIA methods and practices, which are classified. But how can we determine that the torture was indeed “necessary” without making explicit reference to the lack of other avenues? Unfortunately the CIA does not discuss these other avenues, but they really need to if they want anyone to accept their conclusion that the torture was truly necessary.

Fourth, there is the question of whether the torture saved lives. This is a counterfactual question because it requires imagining a world without torture and asking which terrorist attacks would — and would not — have occurred. This is guess work. When the CIA and their surrogates argue that the torture saved lives, they are asking everyone to engage in a mighty big thought experiment and what the world would have looked liked if they had followed the legal prohibition against torture. This is closely connected to the issue of unavoidability but it really is a separate question. Did it save lives? I have no idea. But at the very least the SSCI report shows that the CIA has failed to make the case that it saved lives.

Fifth, there are the first-order normative questions that are allegedly separate from effectiveness entirely, i.e. regardless of the answers to (1)-(4), was tortured legally or morally appropriate? Obama says that torture is wrong but he refuses to say whether it was effective or not. But these questions are linked in an interesting way. If we are debating whether the necessity defense should apply to torture (which I’ve written about extensively), at least part of the analysis is whether the torture is unavoidable. If torture is ineffective and useless, then it is clearly avoidable and the necessity argument does not apply — regardless of the rest of the legal argument. Of course, there might be other moral and legal reasons to reject torture, but the application of the necessity argument seems central to me.

The present discussion in Washington, DC, is conflating all of these questions into one incoherent mess.

The Senate Torture Report

by Jens David Ohlin

At long last, the Senate Select Committee on Intelligence has released the executive “summary” of its report into torture conducted by the CIA. The report is available here.

Here are some first reactions.

The nature and conditions of the interrogations are indeed horrendous. The report specifically concludes that the CIA interrogations were harsher than previously recognized and the report’s allegations certainly back up this finding. Not only did CIA officers use waterboarding more often than was generally known, but other techniques were brutal. I found it shocking that one detainee was shackled to the floor of a cold facility for so long that he died of hypothermia. The report describes the COBALT black site as a “dungeon.”

Some detainees were subject to “rectal rehydration or rectal feeding without documented medical necessity.” The report is hedging a bit by including the phrase “documented.” If the procedures were medically necessary that’s one thing. But if they were not necessary and performed without the consent of the detainee, then they constituted an assault and arguably a sexual assault.

Parts of the report could be used as an apology for the Office of the Legal Counsel in the Justice Department, which authored the torture memos. The report focuses on the fact that the CIA misled the White House and other executive agencies over the nature of the interrogations and the usefulness of the intelligence gleaned from these sessions. The OLC argued that the necessity defense could exculpate CIA officers accused of unlawfully committing torture because the torture was “necessary to save lives.” According to the Senate report, the torture program saved no lives whatsoever, so the OLC argument on necessity was essentially based on a lie. But the report seems to fault the CIA for this, since the OLC opinion was based on the information it received from the CIA. Although clearly the CIA should be criticized if they provided inaccurate information, the report makes it sound as if the OLC was duped by the CIA — which I find highly unlikely. In any event, there are plenty of problems with the OLC’s legal work even if you assume (which I don’t) that torture can yield actionable and reliable intelligence.

Finally, the report documents the use of trained psychologists who were called in to design and oversee aspects of the interrogation program. There has been a lot of scrutiny in the psychology profession over whether this type of work was appropriate for psychologists. The report documents that the design was based on the concept of “learned helplessness” or the idea that detainees would eventually become so compliant out of a sense of helplessness that they would start assisting their interrogators. This is a fiction and a fanciful one at that. It strikes me as pseudo-science (as applied to interrogational torture). The psychologists formed a corporation to provide these services to the CIA on an outsourced basis and were paid $81 million.