Author Archive for
Kevin Jon Heller

Mark Kersten on the Terror Attacks in Canada

by Kevin Jon Heller

These days, I usually use Twitter to point readers to blog posts that deserve their attention. But Mark Kersten’s new post at Justice in Conflict is so good — and so important — that I want to highlight it here. The post achieves the near-impossible, passionately indicting Canada’s right-wing government for creating a political environment ripe for terrorism without in any way suggesting that Wednesday’s terror attacks were justified. It’s a truly brilliant post, from top to bottom. Here is a snippet, concerning the Harper government’s foreign-policy disasters:

The Canadian government has actively pursued a political philosophy of retribution and control that tarnishes the country’s image as an ‘honest international broker’. Harper’s record attests to an unyielding mission to reshape Canada’s international identity as a tough and hard-power state. The Harper government plays the part of destructive belligerent in climate change negotiations and tar-sands cheerleader. It is first in line to threaten Palestine with “consequences” if Ramallah pursues accountability for alleged crimes committed by Israeli forces in Gaza. While it isn’t usually described as such (many prefer terms like “militarily engaged”), the reality is that Canada has been at war, primarily in Afghanistan, for most of the last decade. And while we should judge each decision to engage in wars on their own terms, the government has positioned itself as a military – rather than diplomatic or humanitarian – middle power. The role of Canadian citizens in the Afghan detainee scandal has been swept under the rug. The government willfully left a child soldier, Omar Khadr, to rot in Guantanamo and were the only Western government not to request the repatriation of their citizens from that nefarious island prison. It left Abousfian Abdelrazik, a Canadian citizen wrongly accused of terrorism, stranded in Khartoum for years and threatened anyone who tried to help him return to Canada with aiding and abetting terrorism. In a country that takes pride in seeing Lester B. Pearson as the father of peacekeeping, the government prefers to count the number of fighter jets it will buy than the number of peacekeepers it deploys. And, making matters worse, those who disagree with the Harper government’s approach to being “hard on crime”, “tough on justice”, and “a military power” are too often portrayed as naive or betraying Canadian values.

Sadly, it’s not just Canada that has pursued the kind of right-wing policies that make horrific acts of terrorism more likely. Very similar posts could — and should — be written about the Key government in New Zealand, the Abbott government in Australia, and (yes) the Obama government in the US. These misguided policies have done next to nothing to prevent terrorism; they create the illusion of security, not its actuality. Indeed, insofar as they do little more than further radicalize the populations they affect, the policies have made us all that much less safe.

Read Kersten. And if you are on an academic committee that is looking to appoint a brilliant young lecturer, hire him.

Dapo Akande Promoted to Professor of Public International Law at Oxford

by Kevin Jon Heller

I want to congratulate my friend — and friend of Opinio Juris — Dapo Akande on his promotion to Professor of Public International Law at Oxford University. It’s a massive accomplishment, and one richly deserved. Here is a snippet of Dapo’s impressive bio:

Dapo Akande is also Yamani Fellow at St. Peter’s College and Co-Director of the Oxford Institute for Ethics, Law and Armed Conflict (ELAC) & the Oxford Martin Programme on Human Rights for Future Generations. He has held visiting professorships at Yale Law School (where he was also Robinna Foundation International Fellow), the University of Miami School of Law and the Catolica Global Law School, Lisbon. Before taking up his position in Oxford in 2004, he was Lecturer in Law at the University of Nottingham School of Law (1998-2000) and at the University of Durham (2000-2004). From 1994 to 1998, he taught international law (part-time) at the London School of Economics and at Christ’s College and Wolfson College, University of Cambridge.

He has varied research interests within the field of general international law and has published articles on aspects of the law of international organizations, international dispute settlement, international criminal law and the law of armed conflict. His articles have been published in leading international law journals such as the American Journal of International Law, the British Yearbook of International Law and the European Journal of International Law . His article in the Journal of International Criminal Justice on the “Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits” was awarded the 2003 Giorgio La Pira Prize.

Dapo has advised States, international organizations and non-governmental organizations on matters of international law. He has worked with the United Nations on issues relating to international humanitarian law and human rights law; acted as consultant for the African Union on the international criminal court and on the law relating to terrorism; and also as a consultant for the Commonwealth Secretariat on the law of armed conflict and international criminal law. He has also provided training on international law to diplomats, military officers and other government officials. He has advised and assisted counsel, or provided expert opinions, in cases before the International Court of Justice, the International Tribunal for the Law of the Sea, international arbitral tribunals, WTO and NAFTA Dispute Settlement Panels as well as cases in England and the United States of America.

There are four scholars who write in my areas that I am afraid to disagree with — because when we do disagree, odds are that they are right and I am wrong. The first three are Marko Milanovic, Steve Vladeck, and my co-blogger Jens Ohlin. The fourth is Dapo. He is, quite simply, one of the finest scholars writing today.

Congratulations, Dapo!

ICC and Palestine Event at George Mason

by Kevin Jon Heller

The event at George Mason University on the ICC and Palestine is today. Here, again, is the flyer:

FINALFLYEROCTOBERPANELJpeg

If you cannot attend, the live-stream link is here.

Panel at George Mason on the ICC and Palestine

by Kevin Jon Heller

I will be participating next week in what should be an excellent event at George Mason University on the ICC and Palestine. The other participants are all excellent — David Luban, Meg DeGuzman, George Bisharat, and the organizer, Noura Erakat. Here is the flyer:

FINALFLYEROCTOBERPANELJpeg

I hope at least some Opinio Juris readers will be able to attend and hear my dire prognostications in person. (If you do, make sure to come say hello.) The event will be live-streamed for those that do not live nearby.

A Quick Bleg on the US and Self-Defence

by Kevin Jon Heller

A few years ago, John Brennan articulated the US position concerning self-defence against non-state actors:

Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.

As the quote makes clear, the US believes that its position is consistent with international law. Yoram Dinstein takes a similar position in his seminal War, Aggression and Self-Defence, at least in the context of international armed conflict. So here are my questions:

[1] Does anyone know where the US might have defended/explained its position at more length, whether in a legal brief or elsewhere?

[2] Does anyone know of scholars other than Dinstein who take the position that once a state acts in self-defence, none of its (extraterritorial) acts in the resulting armed conflict are subject to the jus ad bellum?

Any suggestions or citations from readers would be most appreciated.

The Invention of the Khorasan Group and Non-Imminent Imminence

by Kevin Jon Heller

I will be back blogging regularly soon, but I want to call readers’ attention to a phenomenal new article at the Intercept by Glenn Greenwald and Murtaza Hussain about how the US government has cynically manipulated public fears of terrorism in order to justify its bombing campaign in Syria. Recall that Samantha Power — the UN Ambassador formerly known as a progressive — invoked the scary spectre of the Khorasan Group in her letter to the Security Council concerning the US’s supposed right to bomb terrorists in Syria in “self-defence.” As it turns out, not only is there literally no evidence that the Khorasan Group intends to launch an imminent attack on US interests — unless “imminent” is defined as “sometime before the Rapture” — there is also very little evidence that the Khorasan Group actually exists in a form that could threaten the US. Here is a snippet from the article on the latter point:

Even more remarkable, it turns out the very existence of an actual “Khorasan Group” was to some degree an invention of the American government. NBC’s Engel, the day after he reported on the U.S. Government’s claims about the group for Nightly News, seemed to have serious second thoughts about the group’s existence, tweeting “Syrian activists telling us they’ve never heard of Khorosan or its leader.”

Indeed, a NEXIS search for the group found almost no mentions of its name prior to the September 13 AP article based on anonymous officials. There was one oblique reference to it in a July 31 CNN op-ed by Peter Bergen. The other mention was an article in the LA Times from two weeks earlier about Pakistan which mentioned the group’s name as something quite different than how it’s being used now: as “the intelligence wing of the powerful Pakistani Taliban faction led by Hafiz Gul Bahadur.” Tim Shorrock noted that the name appears in a 2011 hacked Stratfor email published by WikiLeaks, referencing a Dawn article that depicts them as a Pakistan-based group which was fighting against and “expelled by” (not “led by”) Bahadur.

There are serious questions about whether the Khorasan Group even exists in any meaningful or identifiable manner. Aki Peritz, a CIA counterterrorism official until 2009, told Time: “I’d certainly never heard of this group while working at the agency,” while Obama’s former U.S. ambassador to Syria Robert Ford said: ”We used the term [Khorasan] inside the government, we don’t know where it came from…. All I know is that they don’t call themselves that.”

I don’t know for a fact that the Khorasan Group doesn’t exist. But it is profoundly troubling that the Obama administration has provided no evidence that it does — especially given that its case for the international legality of bombing Syria is based so heavily on the supposed threat the Khorasan Group poses to the “homeland.”

And let’s not forget that the Obama administration is doing everything it can to denude the concept of “self-defence” of all meaning. Here is the Intercept article on the “imminent” threat posed to the US by the maybe-existing Khorasan Group:

One senior American official on Wednesday described the Khorasan plotting as “aspirational” and said that there did not yet seem to be a concrete plan in the works.

Literally within a matter of days, we went from “perhaps in its final stages of planning its attack” (CNN) to “plotting as ‘aspirational’” and “there did not yet seem to be a concrete plan in the works” (NYT).

Late last week, Associated Press’ Ken Dilanian – the first to unveil the new Khorasan Product in mid-September – published a new story explaining that just days after bombing “Khorasan” targets in Syria, high-ranking U.S. officials seemingly backed off all their previous claims of an “imminent” threat from the group. Headlined “U.S. Officials Offer More Nuanced Take on Khorasan Threat,” it noted that “several U.S. officials told reporters this week that the group was in the final stages of planning an attack on the West, leaving the impression that such an attack was about to happen.” But now:

Senior U.S. officials offered a more nuanced picture Thursday of the threat they believe is posed by an al-Qaida cell in Syria targeted in military strikes this week, even as they defended the decision to attack the militants.

James Comey, the FBI director, and Rear Adm. John Kirby, the Pentagon spokesman, each acknowledged that the U.S. did not have precise intelligence about where or when the cell, known as the Khorasan Group, would attempt to strike a Western target. . . .

Kirby, briefing reporters at the Pentagon, said, “I don’t know that we can pin that down to a day or month or week or six months….We can have this debate about whether it was valid to hit them or not, or whether it was too soon or too late… We hit them. And I don’t think we need to throw up a dossier here to prove that these are bad dudes.”

Regarding claims that an attack was “imminent,” Comey said: “I don’t know exactly what that word means… ‘imminent’” — a rather consequential admission given that said imminence was used as the justification for launching military action in the first place.

According to the Obama administration, in short, the US is entitled to act in self-defence against “bad dudes” no matter when — or even if — those “bad dudes” might launch an armed attack against the US. This isn’t even the Bush administration’s “anticipatory self-defence.” This is, for lack of a better expression, “hypothetical self-defence.” Apparently, the US government believes it is entitled to use force against a non-state actor anywhere in the world as long as it can imagine a future state of affairs in which that actor would attack it.

The mind — and international law — reels.

So Much for Academic Freedom at the University of Sydney

by Kevin Jon Heller

There’s been much discussion in the blogosphere about the University of Illinois’ decision to “un-hire” (read: fire) a Palestinian-American scholar who resigned a tenured position at Virginia Tech to join its faculty, a decision motivated by a series of anti-Zionist (but not anti-Semitic) tweets that made the University’s wealthy donors uncomfortable. But the rightful revulsion at Illinois’ decision (more than 5,000 academics, including me, have agreed to boycott the University until Steven Salaita’s offer of a tenured position is honoured) shouldn’t obscure the fact that Illinois is far from the only university that does not take academic freedom seriously.

Case in point:  the University of Sydney’s distressing decision — abetted by one of its faculty members — to “un-invite” Sri Lankan NGOs from an international conference on the enforcement of human rights in the Asia-Pacific because of pressure from the Sri Lankan military. Here’s a snippet of the Guardian‘s story, which deserves to be read in full:

The University of Sydney has withdrawn invitations for two Sri Lankan human rights organisations to an international conference at the request of the Sri Lankan military, angering campaigners.

The university is due to host a two-day event in Bangkok from Monday along with the University of Colombo, which will see delegates from around the world discuss the enhancement of human rights in the Asia Pacific region.

Delegations from the Sri Lankan military and the Sri Lankan police are expected to attend the conference. Leaked correspondence, seen by Guardian Australia, shows that these delegations had originally requested that all non-government organisations (NGOs) from Sri Lanka be uninvited, and organisers subsequently rescinded two invitations.

The civil war in Sri Lanka, in which up to 100,000 people were killed, ended in 2009. The Rajapaksa regime stands accused of war crimes for its brutal suppression of civilians in the north of the country, with both sides subject to a UN human rights council inquiry into alleged war crimes.

Australia was one of 12 countries to abstain in a UN vote for the investigation.

Guardian Australia has also seen a letter discussing the reasons for rescinding the invitations to the two NGOs sent by the conference’s director, University of Sydney associate professor Danielle Celermajer.

“With about 130 people from across the region confirmed from the conference, it would be a disaster for all members of the Sri Lankan forces, who have been at the heart of the project, to withdraw,” it states.

As the article’s reference to the UN vote indicates, Tony “Difficult Things Happen” Abbott’s administration has proven to be one of the murderous Sri Lankan government’s staunchest allies. But that’s a right-wing government for you; no surprise there. It’s absolutely appalling, though, that a major Australian university cares so little about academic freedom that it would allow the Sri Lankan military to dictate who can attend a conference it sponsors — a conference about the enforcement of human rights in the region.

Dr. Celermajer says it would be a “disaster” for the academic conference if the Sri Lankan military didn’t attend. You know what an actual disaster is? The Sri Lankan military’s systematic violation of the human rights of hundreds of thousands of Sri Lankans — the very acts that make the conference in question so necessary.

I guess it’s more important to discuss human-rights violations among the perpetrators than among those who work to end the violations. Shameful.

NOTE: You can find the powerful open letter the Sri Lanka Campaign for Peace and Justice sent to participants in the conference — ironically entitled “Enhancing Human Rights and Security in the Asia Pacific” — here. Key line: “By allowing the Sri Lankan Army to dictate who can or cannot attend, the organisers of this conference are, in effect… potentially making themselves complicit in the Sri Lankan government’s systematic attempts to suppress dissent and intimidate critical voices within civil society, and to legitimize that policy internationally. “

Mike Lewis Is Wrong About the Nature of Self-Defence

by Kevin Jon Heller

Mike Lewis has a guest post at Just Security today responding to Ryan Goodman’s recent post exploring what the US’s claimed “unwilling or unable” test for self-defence against non-state actors means in the context of Syria and ISIS. Ryan, careful scholar as always, rightly points out that the test “remains controversial under international law.” Mike doesn’t seem to have any such qualms, but that’s not what I want to respond to here. Instead, it’s important to note that Mike makes a basic error concerning how the “unwilling or unable” test functions — assuming for sake of argument it is a valid approach to self-defence under Art. 51 of the UN Charter (emphasis mine):

It is important to note that this interpretation does not give the US unlimited license to act in violation of the sovereignty of other states as some opponents of the standard claim. There are limits and dangers associated with taking such a course of action. First of all, an intervening state can only take such actions after giving the host/target state a meaningful opportunity to prevent its territory from being used by the non-state actor to launch attacks. In the case of Syria, there is no question that it is unable to control the territory under ISIS control so further delays are unnecessary. Secondly, the intervening state does so at its own peril. Syria can rightfully interpret any strikes as aggression by the US and it is justified in taking steps to prevent such attacks and to destroy the drones/aircraft conducting such attacks.

Um, no. The entire point of arguing self-defence — in any form, including pursuant to the controversial “unwilling or unable” test — is that it cures any violation of state sovereignty under Art. 2(4) of the UN Charter. So if the US attacked ISIS in Syria because Syria was unwilling or unable to prevent ISIS from using its territory as a base for attacks, the US would not violate Art. 2(4) and Syria would have no right whatsoever to act in self-defence against that armed attack. Indeed, any attempt to “prevent such attacks and to destroy the drones/aircraft conducting such attacks” would represent an act of aggression by Syria against the US, thereby opening the door to legitimate acts of self-defence against Syria itself.

Again, I don’t accept that the “unwilling or unable” test reflects current customary international law. But it’s important not to let that debate obscure how self-defence functions under Art. 51 of the UN Charter.

Matrix Chambers Application Deadline Extended

by Kevin Jon Heller

Matrix Chambers has extended the deadline for applying to September 26 — two weeks from today. I hope readers with the appropriate credential will consider applying.

You can find the original post, with details of the Matrix vacancy, here.

Is the AUMF Limited to the United States Armed Forces?

by Kevin Jon Heller

Bobby Chesney has responded at Lawfare to my most recent post on the CIA and the public-authority justification. It’s an excellent response from an exceedingly smart scholar. I still disagree, but Bobby’s post really hones in on the differences between us. I’ll leave it to readers to decide who has the better of the argument.

I do, however, want to discuss Bobby’s reading of the AUMF. In his view — echoing John Dehn’s comments — it is possible to read the AUMF to authorise the use of force by both the military and the CIA:

I’m not actually agreeing with [Kevin's] AUMF reading. Yes, Section 2′s title refers to the armed forces, but the actual text of section 2 is not so limited (in contrast to the similar section of the 2002 Iraq AUMF, for example, which did refer explicitly and only to armed forces). 

I confess that I find this argument baffling. It’s true that Section 2(a) of the AUMF does not mention the Armed Forces, providing only that “the President is authorized to use all necessary and appropriate force against those  nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,  2001.” Read in context, however, I don’t see how it is possible to plausibly maintain that the word “force” in Section 2(a) does not specifically refer to force by the United States Armed Forces.

First, the AUMF is a Joint Resolution whose purpose, according to its very first line, is “[t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.”

Second, Section 1 of the AUMF (“Short Title”) says the joint resolution “may be cited as the “Authorization for Use of  Military Force.” We do not traditionally associate with the CIA, even if the CIA occasionally engages in paramilitary activity. (And the “para” in paramilitary is important in this context.)

Third, Section 2 of the AUMF, which contains the “force” language upon which Bobby (and John) rely, is entitled “Authorization For Use of United States Armed Forces.” I know no theory of statutory interpretation nor any canon of statutory construction that would suggest “force” in the first paragraph of a section entitled “Authorization For Use of United States Armed Forces” should be read in context to refer to something other than the use of force by the Armed Forces.

Fourth, Section 2(b)(1) provides that “[c]onsistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” Section 8(a)(1) of the WPR provides as follows (emphasis mine)…

A Response to Bobby Chesney — Part II (Article II)

by Kevin Jon Heller

In the first part of my response to Bobby, I argued (after meandering around a bit) that Title 50’s “fifth function” provision cannot be used to authorise the CIA to kill Americans overseas — a necessary condition of any argument that the CIA is entitled to a public-authority justification with regard to 18 USC 1119, the foreign-murder statute. (Bobby kindly responds here.) I thus ended that post by asking where else that authority might be found.

Which brings me to the second argument Bobby makes: namely, that the President’s authority to permit the CIA to kill Americans overseas derives from Article II, Section 2 of the Constitution, which deems him the Commander-in-Chief of the armed forces. Here is what Bobby writes:

OK, fine, but aren’t covert action programs bound to comply with federal statutes, including 1119?

They sure are, and it is important to the continuing legitimacy of the covert-action instrument that it be subject to American law in this way. But the question remains: Does the covert drone strike program violate 1119 as applied to al-Aulaqi? Kevin argues that it does because the AUMF should be read to exclude CIA, and thus that section 1119 is violated, and thus that the requirement that covert action programs comply with statutes is violated too. I don’t agree, however, for I don’t think the AUMF is the only possible domestic law explanation for the CIA’s role; Article II likely applies here as well, and performs the same function as the AUMF in this respect.

There are two ways to read Bobby’s argument. The first is that the President’s Article II authority simply empowers him to ignore duly-enacted federal statutes like the foreign-murder statute. That is John Yoo’s position, encapsulated so memorably when he said, with regard to the federal torture statute, that the President could authorise an interrogator to crush the testicles of a detained terrorist’s child if he felt it was necessary to protect the United States. I doubt Bobby shares Yoo’s sentiments.

The second way to read Bobby’s argument is as follows: (1) the President cannot rely on Article II to violate duly-enacted federal statutes; but (2) he can rely on his Article II authority to authorise the CIA to kill Americans overseas, which means (3) the CIA has the same public authority to kill that the military has under the AUMF; therefore, (4) the CIA is no less entitled than the military to the public-authority justification with regard to the foreign-murder statute.

That is a much more sophisticated argument, and no doubt the one that Bobby endorses. Unfortunately, once we understand the nature of the public-authority justification, it’s simply a more sophisticated way of arguing that Article II permits the President to violate a duly-enacted statute…

A Response to Bobby Chesney — Part I

by Kevin Jon Heller

My friend Bobby Chesney has responded at Lawfare to my previous post arguing that Title 50 does not provide the CIA with a public-authority justification to kill Americans overseas. He disagrees with both of the limits on presidential authority to authorise covert action I discussed. I will address the Article II question in a separate post; in this post I want to discuss the “traditional military activity” (TMA) exception to Title 50’s definition of “covert action.” Here is what Bobby writes:

CIA Drone Strikes Don’t Qualify as TMA: As an initial matter, I think one part of his argument depends on a mistaken assumption regarding the meaning of TMA, and that drone strikes do indeed constitute covert action within the meaning of Title 50. The TMA exception to covert action has a complicated and often-misunderstood history, which I recount in detail in this paper (pp. 592-601 especially). The concept was the subject of extensive negotiations between the White House and Congress, ultimately resulting in the following agreement. An activity that otherwise would qualify as covert action would instead count as TMA, thus avoiding the requirement of a written presidential finding and reporting to SSCI and HPSCI, if the following conditions were met.

The operation:

1) was commanded and executed by military personnel, and

2) took place in a context in which overt hostilities either were

(a) ongoing, or

(b) “anticipated (meaning approval has been given by the National Command Authorities for [i] the activities and for [ii] operational planning for hostilities).”

The CIA drone strike program as a general matter almost certainly does not satisfy this test, especially the first prong. This is why it has been long considered by both the Bush and Obama administrations to be covert action, not TMA. If the covert-action statute is capable of conferring the benefits of the public-authority justification, then, it does so here.

I think this response elides the difference between two different situations: (1) where the military wants to use force covertly against al-Qaeda; and (2) where the CIA wants to use force covertly against al-Qaeda. As Bobby’s article brilliantly explains, the TMA language was included in Title 50 because neither President Bush nor the military wanted a presidential finding — with its attendant reporting requirements — to be required every time the military engaged in a covert action. They wanted, in other words, the military to have the right to covertly engage in its traditional warfighting activities without having to acknowledge it was doing so. After much negotiation, Congress ultimately agreed to carve out a category of military actions that would not qualify as “covert actions” for purposes of Title 50, even when not acknowledged: namely, actions that satisfied the two requirements Bobby quotes. The TMA exception thus permits the military to use force covertly against al-Qaeda without a presidential finding as long as the action in question is commanded and executed by the military (check) and takes place in the context of ongoing hostilities (check).

The TMA functions very differently in the context of covert action by the CIA. There is no question that the military is authorised to engage in the kind of activities against al-Qaeda that, when done covertly, may fall under 50 USC 3093.  The military is always authorised to use force against enemy combatants in an armed conflict. The AUMF is simply the latest example of such authorisation. The CIA, however, is in a completely different situation. For all the reasons I discussed in an earlier post, the AUMF does not authorise the CIA to use force against al-Qaeda at all. So the primary question is not whether the CIA can use force against al-Qaeda covertly, but where the CIA gets its authority to use force against al-Qaeda in the first place.

The most obvious answer is, of course, 50 USC 3093