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Michael Ramsey

Guest Post: Argentina and the Foreign Sovereign Immunities Act, Round 2

by Michael Ramsey

[Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego Law School. Professor Ramsey previously prepared an analysis of this case for the Judicial Education Project supporting the bondholders, for which he was compensated.]

In a new claim in the long-running battle between Argentina and holders of its defaulted bonds (see here), the question is whether a U.S. court can order Argentina not to pay some bondholders unless it also pays others.  Again, Argentina says the Foreign Sovereign Immunities Act (FSIA) protects it, and again it tries to make the Act’s text say something it does not.

To recap, a decade ago Argentina stopped making payments on some of its bonds, and the private bondholders (including NML Capital) sued Argentina in federal court in New York (as the FSIA and the contracts governing the bonds allowed them to do).  Argentina refused to pay the resulting judgments against it, so the bondholders are seeking enforcement.  One approach is to seek discovery of Argentina’s worldwide assets; whether a U.S. court can make such an order is the subject of the first Republic of Argentina v. NML Capital case, argued to the U.S. Supreme Court in April.

The bondholders’ second strategy involves a clause in the bond contracts known as the equal treatment or pari passu clause.  To oversimplify, after Argentina initially failed to make payments on the bonds, it persuaded many of the bondholders to accept new bonds, with substantially reduced payments (but some hope of salvaging part of their investment).  NML Capital (and a few others) refused to take the deal, and sued for full payment of the original bonds instead.  Argentina now wants to pay the new bondholders (that is, those who agreed to the refinancing) while refusing to pay the holders of the old bonds.

But that sort of discrimination among bondholders, the U.S. court held, violates the “equal treatment” clause in the original bond contracts: the clause says that the old bonds have to be treated equally to any new bonds, and clearly they aren’t.    Argentina had already said it wouldn’t obey a court order to pay on the old bonds.  So the holders of the old bonds asked the court for an injunction barring payment on the new bonds unless the old bonds receive equal treatment.  The district court granted the order and the Second Circuit affirmed.

Now Argentina is bringing this claim to the U.S. Supreme Court on petition for certiorari (scheduled to be considered at the June 12 conference).  As with the case involving the discovery order, its supposed shield is the FSIA.  But again, Argentina is trying to make the FSIA do something it does not.  Argentina concedes that the FSIA allows the bondholders’ suit: Argentina waived its sovereign immunity in the bond contracts, and the FSIA allows suit where immunity is waived (Section 1605(a)(1)).  The FSIA further says (Section 1606) that non-immune sovereigns are (subject to specific exceptions) liable to the same extent as private litigants.

The only plausible exception (and the only one Argentina argues) (more…)

Guest Post: Argentina v. NML Capital – Does the Foreign Sovereign Immunities Act Mean More Than It Says?

by Michael Ramsey

[Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego Law School. Professor Ramsey previously prepared an analysis of this case for the Judicial Education Project, for which he was compensated.]

The Supreme Court considered on Monday whether a U.S. court can order disclosure of Argentina’s worldwide assets.  Perhaps surprisingly, the answer should be yes.

The underlying facts of Republic of Argentina v. NML Capital are straightforward.  Argentina issued bonds, which were bought by private investors including NML, and then defaulted.  In the bond contracts, Argentina waived its sovereign immunity and consented to jurisdiction in New York.  After the default, NML sued Argentina in New York, as the bond contracts contemplated.

The Foreign Sovereign Immunities Act (FSIA) says that foreign governments can be sued in the U.S. only in circumstances listed in the statute.  One of those circumstances is when the sovereign waives its immunity by contract.  So there’s no question that NML could sue Argentina.

The question, rather, is what NML could do once it won (as it did) and Argentina still refused to pay (as it did).  The FSIA also says that creditors cannot execute on (seize) foreign sovereign assets in the United States to satisfy a judgment unless the assets are being used in a commercial capacity.  NML asked the trial court to order two New York banks that handle Argentina’s finances to disclose what they knew about Argentina’s assets (commercial or otherwise).  Argentina, supported by the U.S. executive branch, claims this violates the “spirit” of the FSIA.

It doesn’t.  The FSIA (Section 1609) specifically protects non-commercial sovereign assets only against “arrest attachment and execution.”  It does not say assets are immune from disclosure.  There’s a good reason it doesn’t: to figure out which assets are used for commercial purposes, and thus subject to execution, first one needs to know what assets exist.  It obviously won’t do to have Argentina – or Argentina’s bankers – make an unreviewable judgment as to which assets are commercial and not disclose the others.  And in other respects, the FSIA (Section 1606) says, a non-immune sovereign shall (subject to exceptions not relevant here) “be liable in the same manner and to the same extent as a private individual under like circumstances.”

Thus, as a number of Justices appeared to recognize at oral argument, the key law isn’t the FSIA but Rule 69 of the Federal Rules of Civil Procedure, which govern ordinary litigation in federal court.  Rule 69 allows a federal court to order discovery in support of execution, which is what the trial judge did here.  The rule doesn’t have any limits on the type of property or the geographic limits – rather, its leaves the matter to the discretion of the court.  In private litigation, courts acting under Rule 69 routinely require disclosure of assets outside the jurisdiction or arguably not subject to execution.

At oral argument, some Justices seemed troubled that Argentina (or other sovereigns) might have to disclose the location of sensitive diplomatic or military assets.  It’s a fair concern, but no reason to make the FSIA say something it clearly does not.  First, district courts are adept at balancing all sorts of competing interests that arise in discovery disputes and in allowing only discovery appropriate under the circumstances; Rule 69 gives them plenty of discretion to do so.  Second, the only disclosures the trial court required here are of financial transactions (and the order isn’t even directed to Argentina, but rather to third-party banks); no one is asking Argentina to disclose the location of, for example, specific military assets.  And third, presumably disclosures could be made confidentially to the court as needed for particular assets.

Moreover, NML claims that Argentina has shown its willingness to abuse institutions like the Bank of International Settlements to shield its assets from creditor judgments.  That’s what NML’s attorney Ted Olson was speaking of when he said at one point during Monday’s proceeding that Argentina could slap an air-force label on a commercial airplane in order to shield that asset.  He wasn’t talking about NML attaching non-executable assets, he was simply pointing out the danger of creating loopholes in the discovery process that would allow Argentina to deny discovery on assets that creditors would be entitled to.

This goes to the heart of why NML has a need for the disclosures.  Argentina has openly refused to pay the judgment against it.  NML is entitled to execute on Argentina’s commercial assets in the United States, and may be able to execute on some non-commercial assets elsewhere (in jurisdictions that lack the U.S.’s commercial limit).  To do so, it needs to know what assets exist, and it cannot rely on Argentina’s self-reporting of which assets are commercial.

Ultimately the rule of law, especially in international transactions, depends on courts holding parties to their promises and providing a way to enforce judgments.  If Argentina didn’t want to be subject to U.S. court enforcement, then it should not have waived its immunity and consented to jurisdiction (but, of course, then it would have had much more difficulty selling its bonds).  Argentina could still avoid unwanted disclosures by doing what it is supposed to do anyway: pay the entirely valid judgment against it.

The rule of law also depends on courts reading statutes to mean what they say, and not more than they say.  Argentina is asking the Court to find an immunity in the FSIA that simply isn’t there.  Argentina’s protection instead comes from Rule 69 – but it’s a protection that rests largely with the lower court, which knows the case better and is better able to balance competing equities on an on-going basis than the Supreme Court.  It may be helpful for the Court to ask district courts to use careful discretion in managing disclosure requests directed at a foreign sovereign under Rule 69. For instance, the Justices could recommend that district court judges ask the sovereign to create a privilege log (or a similar mechanism) for those assets, such as military property, that are extra-sensitive. This would balance the interests of the sovereign and the creditors. But creating a blanket protection against disclosure of assets under the FSIA is contrary to both the statute and the needs of the international rule of law.

Bradley Book Symposium: War Powers and the President’s Duty to Faithfully Execute International Law

by Michael Ramsey

[Michael D. Ramsey is Professor of Law at the University of San Diego School of Law]

I join the other symposium participants in congratulating Curtis Bradley on a thoughtful, insightful and balanced treatment of an important topic.  This post briefly addresses his discussion of international law and war powers in the U.S. legal system (principally, Chapter 10 of the book) while noting some areas of agreement and disagreement.

Bradley’s central message here is that international law plays a role in shaping U.S. war powers, but “[m]uch of the interpretation and enforcement of international law in this area occurs outside the courts, especially within the executive branch.  … [C]ourts do not typically enforce the international laws of war directly against Congress or the president.”  (p. 281).  Nonetheless, “[e]ven when courts are not involved, the U.S. government gives significant attention to the international laws of war, in part because of concerns about reciprocity with respect to the treatment of U.S. military personnel.”  (Id.)

As the book discusses, a principal exception is the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President’s Bush’s military commissions for terrorism suspects violated Common Article III of the Geneva Conventions.  (The Court also made some references to international law in deciding the scope of the President’s war powers in its earlier war-on-terror decision Hamdi v. Rumsfeld).  True, Hamdan did not, strictly speaking, apply international law directly, as the Court invoked a statute requiring commissions to comply with the laws of war.  But as Bradley notes (p. 320), the Court surprisingly disagreed with the executive branch’s interpretation of the Conventions, thus imposing an international-law-based judicial check on presidential warmaking.  In general, though, the book finds Hamdan an outlier, instead emphasizing the extent to which, even in the war on terror, the integration of international law into U.S. warmaking policy has been principally a project of the executive and legislative branches.

I agree with much of what Bradley says, so I’ll focus on a point where I don’t agree.  In my view the book underplays the constitutional and historical case that the President is bound by customary international law within the U.S. legal system, including in the exercise of war powers.

(more…)

A Response to Kevin Heller (Part 2)

by Michael Ramsey

In a prior post, I responded to some of Kevin Heller’s criticism of the professors’ amicus brief recently filed in the Nestle ATS case.  Specifically, that post addressed issues arising from the Rome Statute of the International Criminal Court.  Here I’ll take up Kevin’s criticism based on rulings of the International Criminal Tribunal for the former Yugoslavia (ICTY).

To frame the argument, it’s important to emphasize that, as Julian Ku noted earlier, the brief does not see the ICTY as a primary source of customary international law.  Customary international law arises from the practice of states.  The ICTY was created to address specific issues arising from a specific conflict.  It has done its best to apply unclear law to extraordinary facts with little precedent to guide it, and in general it should be commended.  But it was not empowered to create, and should not be understood as creating, a criminal code for the entire world, especially for circumstances far removed from those the tribunal faced.

Beyond that broad contention, the brief identifies various reasons why the ICTY decisions do not, as to the mental state required for aiding and abetting, establish a universal undisputed international law rule for ATS purposes (that being the standard set by Sosa, as explained in my prior post) — let alone one that can be translated uncritically from the ICTY context to the very different context of claims that engaging in commercial transactions with human rights violators amounts to aiding and abetting the violations.  Kevin objects to a couple of these arguments, but I don’t find his objections well-founded.

Kevin first complains that the brief “blatant[ly]” misstates the ICTY’s Vasiljevic decision.  It doesn’t.  The brief only says that Vasiljevic “requires that the aider and abettor’s act be ‘specifically directed to assist … the perpetration of a specific crime.’”  That is in fact exactly what Vasiljevic said (paragraph 102(i) of the tribunal’s opinion).  Vasiljevic did not explain how this requirement for the wrongful act related to the supposed “knowledge” standard for mental state (paragraph 102(ii)).  At least, though, it seems to create some “tension” (which is what the brief said it did).  Kevin thinks the quote from Vasiljevic (which he admits is accurate) isn’t relevant because it comes in the tribunal’s discussion of the required act, not its discussion of the required mental state.  But I don’t see why that matters – the quote seems to be talking about mental state respecting the act, regardless of where it appears, and (as Judge Katzmann said in Khulumani, see 504 F.3d at 278 n.15) it’s hard to reconcile with liability for knowledge.

I frankly have no idea what the Vasiljevic opinion was trying to say with these apparently inconsistent statements.  But that’s precisely the point.  Under Sosa, ATS claims require a showing of undisputed international law.  Even if Vasiljevic is probative generally, I don’t see how to get a clear rule out of it on the question of mental state.  That’s what Judge Katzmann said in Khulumani, and it’s all the brief claims for Vasiljevic.

Kevin’s second objection is that the brief misstates the ICTY cases in general as not being about aiding and abetting.  Here I think Kevin simply misreads the brief.  The passage to which he objects is this:  “Further, it may be questioned whether the mens rea discussion in these opinions was necessary to their holdings. Liability in those cases likely could have been premised on co-participation in a joint criminal enterprise (such as a rogue paramilitary unit), which is a distinct category of criminal liability as a principal, not simply an accessory.”  Kevin then proceeds to argue that the tribunal decisions describe themselves as rejecting a co-participation theory in favor of applying aiding-and-abetting liability.  He’s right – they do.  But that’s not the brief’s point.  The brief’s point is that, given the facts (the defendants were members of rogue paramilitary groups that committed multiple abuses) and the thinness of prior precedent, the cases could have been decided under some form of joint criminal enterprise liability.  The ICTY opinions at times talk of aiding-and-abetting liability in more general terms, but it’s not clear whether the ICTY was (or should have been) thinking beyond rogue paramilitaries, and even less clear that states universally would accept general application of all of the ICTY’s paramilitary jurisprudence to other contexts.  That’s not an argument about what the ICTY said; it’s an argument (among many) for not applying the ICTY cases to very distinct factual circumstances, including ones where there’s no joint criminal enterprise.

Again, this isn’t a novel argument – it was made, among other places, very persuasively by Judge Korman in the Khulumani litigation.  And it’s fundamentally not about what the ICTY rule is, but whether one can say that it’s undisputed how the ICTY rule for rogue paramilitaries would apply to very distinct situations such as (in Nestle) attempts to hold a purchaser of a product liable for violations of rights by the product’s producer.

Thus while I appreciate Kevin’s comments, I think it is important to take a step back and consider what is actually being argued in the brief and how those arguments are shaped by the particular context of the ATS.

A Response to Kevin Heller on Doe v. Nestle

by Michael Ramsey

Thanks to Kevin Heller for his thoughts on the professors’ amicus brief in Doe v. Nestle USA, Inc., and to Opinio Juris for affording me this opportunity to respond.  I should say at the outset that I’m making this response only in my personal capacity, not on behalf of any litigant or amicus. 

While I appreciate the passion Kevin brings to his analysis, I think he lets it carry him a bit beyond the context in which these arguments are being made.

To begin, it’s important to appreciate (as I’m not sure Kevin entirely does) that this debate arises in the unique context of the Alien Tort Statute (ATS).  So the question is not purely whether there is, or could be, or might be, a rule of international law.  The question is whether there is a rule of international law that meets the high standards set by the U.S. Supreme Court in Sosa v. Alvarez-Machain.  In that case the Court held that the ATS permits a cause of action only for a very limited class of well-defined and undisputed violations of international law.  So the question here is whether the international law underlying the claim against Nestle is undisputed and not (in Sosa‘s language) “new and debatable.”

That point is crucial in thinking about the role of the Rome Statute of the International Criminal Court.  It’s true, as Kevin says, that the Rome Statute doesn’t create customary international law, and the brief doesn’t argue otherwise.  But that’s not the question.  The question is whether there is undisputed customary international law on the purported “mere knowledge” mental state for aiding and abetting liability.  Thus it’s highly relevant that when the Rome Statute’s drafters addressed this exact issue, in the context of codifying customary principles, they were unable to reach agreement.  As a result, the Statute adopted a higher “purpose” mental state for aiding and abetting.  The drafters’ failure to agree on a broader liability regime is extremely suggestive that the underlying customary principles are in fact not universally accepted, as Sosa requires.  This is the core point made by the Second and Fourth Circuits in the Talisman and Aziz cases, and in Judge Katzmann’s scholarly concurrence in Khulumani.  I think Kevin’s longstanding objection to this argument may stem from simply not appreciating how it fits into the structure of Sosa and the ATS.

Kevin further objects that this argument violates Article 10 of the Rome Statute.  It doesn’t.  Article 10 says that “[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”  The brief’s argument is not that the Rome Statute cuts back on existing international law or that it prevents future development (which is the target of Article 10).  Rather, the argument is that the Rome Statute is evidence that there is no settled international law on the point in question (or, at minimum, that the relevant international law isn’t undisputed).

Finally, Kevin claims that Article 25(3)(d) of the Rome Statute could be read to impose a “mere knowledge” mental state, even though Article 25(3)(c) seems clearly to require a “purpose” mental state.  Maybe it could.  But first, as the brief points out, two comprehensive expert commentaries on the Statute, by Kai Ambos and by Albin Esser, expressly read Article 25(3)(c) to establish a “purpose” mental state for aiding and abetting.  Second, Article 25(3)(d) expressly does not apply to aiding-and-abetting claims, since aiding-and-abetting claims are covered by Article 25(3)(c), and Article 25(3)(d) applies for acts that “[i]n any other way” contribute to the crime (that is, in ways other than those described in Article 25(3)(c)).  Third, Article 25(3)(c) seems to apply only to “a group of persons acting with a common purpose,” which, whatever it means, isn’t usually the case in corporate aiding-and-abetting cases.  And finally, the most Kevin can say is that “[t]he precise relationship between Article 25(3)(c) and Article 25(3)(d) is much debated by ICL scholars.”  That hardly suggests an undisputed rule of the sort required by Sosa.

(As an aside, Kevin seems especially upset that the brief did not address the Article 25(3)(d) argument.  Kevin must realize, of course, that these briefs cover a wide range of complex issues under a very tight word limit.  It simply isn’t feasible to reject every possible counter argument, and the Article 25(3)(d) argument seems just too flimsy to make it worthwhile.  The brief made very clear that weighty commentary endorsed its view of the Statute.)

This addresses Kevin’s objections to the brief’s treatment of the Rome Statute.  In a subsequent post, I’ll address his ICTY objections.  Again, thanks to Opinio Juris for encouraging this discussion.

International Law in the U.S. Supreme Court: Introduction

by Michael Ramsey

On behalf of myself and my co-editors David Sloss and William Dodge, thanks to Opinio Juris for hosting this book discussion.  As readers of this blog know, the twenty-first century’s first decade was an extraordinarily active one for international law in the Supreme Court.  In the debates about leading cases such as Medellin v. Texas and Sosa v. Alvarez-Machain, we noticed that each side invoked the Court’s historical practices regarding international law in support and accused the other side of radical departures.  Indeed, the rhetoric of the criticisms can hardly be overstated: to some, the Court was abandoning longstanding commitments to international law; to others, the Court was allowing international law to invade domestic law at the expense of traditional notions of national sovereignty.

We also noticed that these competing claims were sometimes difficult to assess because there was no comprehensive account of the Supreme Court’s use of international law throughout its history.  This book, International Law in the U.S. Supreme Court: Continuity and Change (Cambridge Univ. Press 2011) seeks to fill that gap.  To carry out the project, we were fortunate to assemble a distinguished group of contributors with expertise in international law, foreign affairs law and legal history, each of whom contributed one or more original essays to the book.

The book’s organization is broadly chronological, beginning in Part I with an assessment of the Court’s use of international law from the Court’s inception to 1860.  Parts II through IV cover, respectively, the years from the Civil War to the end of the nineteenth century (1861-1900); the first half of the twentieth century through World War II (1901-1945); and the post-war years to the century’s end (1946-2000).  Part V examines the leading post-2000 cases in light of historical practice.  Although the dividing lines between historical periods are concededly somewhat artificial, the book is deliberately designed to devote substantial attention to the period from the Civil War to the end of World War II, which seems somewhat under-examined by prior scholarship as compared to the Founding era and the modern period. 

Within the chronological periods, the book further subdivides the Court’s treatment of international law into substantive categories: treaties, direct application of customary international law, and the use of international law in constitutional and statutory interpretation.  For each of the periods before 2000, it also includes a chapter of historical commentary addressed to wider political, legal and social developments.  For the post-2000 period, recognizing that it is more difficult to achieve historical perspective on recent decisions, it features more opinionated and provocative essays designed to present a range of reactions to the leading cases.

A central theme of the book is “continuity and change.”  From its earliest decisions in the 1790s, the Court has used international law to help resolve some of the major controversies on its docket.  But the Court’s approach to international law has changed markedly over time.  In general, our study finds that there was substantial (though not complete) continuity through the nineteenth century, and that from the beginning of the twentieth century forward substantial changes occurred, such that few aspects of the Court’s international law doctrine remain the same in the twenty-first century as they were two hundred years ago.

While the book provides an account of what changed and when, it does not attempt a systematic account of why those changes occurred.  We hope our account of how the Court has used international law in its decisions will form the basis for broader inquiries concerning why the Court did what it did, and to what effect.

We look forward to the discussion.

Declaring War and the Security Council

by Michael Ramsey

In previous posts I’ve argued that the U.S. intervention in Libya requires congressional approval under the Constitution’s original meaning and that there’s no longstanding uncontested precedent that would warrant departure from that meaning.  Here I’ll consider the significance of UN Security Council Resolutions 1970 and 1973, calling for a cease fire by the Libyan government and authorizing nations to use force against the Libyan military.  Some commentators have taken these resolutions to somehow distinguish the Libya situation from earlier ones, such as the potential attack on Iranian nuclear facilities debated in 2007.

I can see two arguments that the Council’s actions might help the President, but I don’t find either persuasive.  First, the Resolutions are adopted pursuant to a treaty, the UN Charter, and thus have the force of law in the U.S.; perhaps the President, exercising his obligation to “take Care that the Laws be faithfully executed” (Article II, Section 3),  has constitutional power to enforce them without needing congressional approval.

It might pose a difficult question if a treaty itself declared war or obligated the U.S. to declare war.  The issue would be when and whether powers of Congress could also be exercised by treaty – a matter vigorously debated in the post-ratification period without producing a fully satisfactory conclusion.  But that is not the question here.  Resolution 1973 authorizes the use of force in Libya for certain purposes.  It does not obligate the U.S. (or any other nation) to use force against Libya.  Even if the President’s “take Care” power fully empowers (and requires) him to enforce U.S. treaty commitments, the President is under no treaty obligation to use force here.

Resolution 1973 addresses a distinct issue: under Articles 2(4)  and 51 of the  Charter, the U.S. has a treaty obligation not to use force against other nations except in defense of itself or its allies.  Since neither situation applies to Libya, the intervention would be illegal under these provisions but for Resolution 1973 (because using force with Security Council approval is another exception to the Article 2(4) obligation).  So the Resolution says what the U.S. as a nation may do, but it doesn’t say anything about which branch of the U.S. government should make the decision to do it.  

I suppose one could argue that the President has power under Article II, Section 3 to use the military to enforce other nations’ treaty obligations.  If so, the key resolution is not 1973 but 1970, which calls on the Libyan government to end violence against its citizens (and, by this theory, the President is “tak[ing] Care” this “Law” is executed).  That’s an extraordinarily broad claim, though, that would radically undermine Congress’ declare war power in a way clearly not accepted by the founding generation.  For example, no one thought President Adams in 1798 could attack France without congressional authorization just because France had violated a treaty with the U.S. (which it had).  The founding generations’ categorical statements that the President alone could not start a war make no sense if the President can in fact start a war to enforce a treaty – a justification that would very commonly be available.

A second argument might be that the Security Council resolutions change the nature of the conflict, so that it is no longer a “war” (and so not subject to the declare war clause).  President Truman tried this argument in 1950 in the conflict in Korea, but history hasn’t been kind to it: everyone calls that conflict “the Korean War” although Truman claimed it was a “police action” to enforce the U.N. Charter.  (Similarly the 1991 Gulf War is called a war despite being approved by Security Council  resolution.)   In any event, this argument does not get around the text and original meaning of the declare war clause.  Resolution 1973 sets the objectives and limits of the intervention, but the intervention remains the “exercise of violence under sovereign command” – the 18th century definition of “war.”  And, especially because U.S. participation in the intervention is voluntary under international law, the U.S. had to manifest “by word or action” its commitment to war – which is the 18th century definition of “declare.”

Finally, even if some conflicts fought under Security Council approval are “wars,” perhaps this one is not, because it is – as State Department Legal Advisor Harold Koh said in a recent statement – “time-limited, well-defined, discrete and aimed at preventing an imminent humanitarian catastrophe.”  As Ken Anderson explores in this post, the Resolution itself is quite vague, and it’s not clear what limits it actually provides on the intervention.    But in any event, as I argued earlier, the founding generation surely understood limited wars, and still called them “wars” subject to the declare war clause.  The limits Koh describe may make the intervention just and reasonable, but they don’t make it any less a war.  According to recent news reports, among other things we are using sustained aerial attacks to destroy Libyan army tanks and ground forces, clearing the way for rebel forces to advance.  Wherever the line between war and not-war may be, this intervention seems firmly on the “war” side.  The fact that our actions are done with Security Council approval doesn’t change their nature – it only makes this a war in pursuit of objectives blessed by the Council.

Declaring War and Libya: A Comment on Past Practice

by Michael Ramsey

My previous post argued that the original meaning of the declare war clause requires the President to get Congress’ approval before beginning military conflicts (including the current conflict in Libya).   I’ll now turn to two leading counterarguments: first, that Presidents have routinely engaged in low-level conflict without Congress’ approval; and second, that the President’s action to enforce a resolution of the U.N. Security Council differs from ordinary war.

I’ll take the historical practice first.  To start, it’s important to note that my reading (and basically every reading) of the declare war clause allows the President independent power to respond with force when the U.S. is attacked.  The clause only means that the President must get Congress’ authorization to begin a war (that is, to “declare” it).  As Madison said at the Constitutional Convention, the President has power to “repel sudden attacks” (though exactly how far this power extends is subject to serious debate).

Recognizing this power accounts for essentially all material presidential uses of force in the 18th and 19th centuries.  For example, in 1819 then-General Andrew Jackson attacked the Seminole tribe in Spanish Florida, as well as several Spanish posts, on the President’s orders but without Congress’ approval.  When some members of Congress objected, citing the declare war clause, Jackson’s defenders responded that the Seminoles, with Spanish support, had attacked first.  Similarly, at the outset of the Civil War, President Lincoln ordered a naval blockade of the South without Congress’ approval.  Lincoln argued that the South’s attack on Fort Sumter justified his response.

The Supreme Court accepted Lincoln’s argument in The Prize Cases, upholding the blockade.  The Court first stated the general rule that the President “has no power to initiate or declare a war.”  (67 U.S. 635, 668 (1863)).  But, the Court continued, once the other side began the war, the President could fight in response (including not just defensive but also offensive measures).  This holding is consistent with the argument of Jackson’s defenders in the Seminole conflict and Hamilton’s argument, mentioned in my last post, concerning the 1801 Tripoli conflict.

Thus longstanding historical practice – not just in the 18th century but throughout the 19th  – supports my view of the declare war clause: there was broad agreement that the President could not engage in hostilities independently unless the U.S. was attacked.  It was not until the 20th century that a practice arose of Presidents using military force without approval other than in response to attacks.  This practice of course has little bearing on the Constitution’s original meaning.

Perhaps, though, modern practice acts as a sort of precedent that allows the President’s action despite the Constitution’s original meaning.  This seems to be the core of Jack Goldsmith’s important post in support of the President’s power that I mentioned earlier.   Many attempts to apply the Constitution’s original meaning to modern circumstances must wrestle with the question of precedent.  But here I think the practice isn’t sufficient to raise the question, mostly for the reasons explained by Ilya Somin in this excellent discussion.  The short of it is, first, that there have not been all that many instances of Presidents unambiguously beginning military conflicts in the last 50 years (as opposed to sort-of-plausibly claiming to be responding to attacks or making deployments not involving actual hostilities).  And second, most of those instances have been strongly contested by members of Congress and legal commentators.

Just in the last decade, some members of the George W. Bush administration initially suggested in 2003 that the President might have power to attack Iraq without Congress’ approval, but this claim was widely criticized on constitutional grounds; the administration reconsidered and (successfully) sought approval.  Later, in 2007, there were rumors that the President might bomb Iran’s nuclear facilities.  Congressional leaders again strongly objected to any unilateral presidential action, invoking the declare war power.  Though his administration tested the boundaries of presidential power in several respects, Bush did not undertake any wars without Congress’ approval.

On this record, it seems hard to say – whatever force one gives to precedent generally – that practice has established a precedent sufficient to override the Constitution’s original meaning.  Historical practice before the 20th century gives little support to the President, and the only Supreme Court case to consider the matter expressly stated that the President lacked power to “initiate” war.  Modern practice is deeply contested, and has been at least since the Vietnam War.  As recently as 2007, congressional leaders sharply asserted Congress’ power under the declare war clause to approve a possible campaign of aerial strikes.  We’re far from a Constitution-altering consensus in the President’s favor.

There remains the question, though, whether the Libya intervention is different because it is being done by authority of a resolution of the U.N. Security Council.  I’ll turn to that question next.

The Constitution and Libya

by Michael Ramsey

I appreciate the opportunity to guest blog on the Constitution and the Libya intervention.  In a post at Slate, Jack Goldsmith says that the Constitution’s original meaning in this area is “indeterminate.”  I respectfully disagree:  I think congressional approval is clearly required.  In this post I’ll set out my basic argument, and in the next one I’ll consider leading counterarguments.

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities.  Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton.  As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval.  Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries.  Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, “it belongs to Congress only, to go to war.”  (References are found in my article “Textualism and War Powers,” 69 U. Chicago L. Rev. 1543 (2002), in part I.A).

Does the Libya intervention amount to a “war” in constitutional terms?  Samuel Johnson’s influential 18th century dictionary defined “war” broadly as “the exercise of violence under sovereign command, against withstanders.”  International law writers of the time expressed similarly expansive definitions.  Although there are surely borderline cases, our use of force against Libya easily qualifies: the opponent is the Libya government, and our objective is to use “violence under sovereign command” to force that government to change course. 

The fact that our use of force is limited to air strikes should not matter.  Limited wars were well-known in the 18th century (Britain and France fought a limited war at sea and in North America during the American Revolution).  The U.S. fought two limited wars early in its history, against France beginning in 1798 and against Tripoli in 1801.  So far as I know, every person commenting on these events at the time thought that Congress had to authorize any initiation of force, even limited naval attacks.   (In 1801, Hamilton argued that authorization wasn’t needed because Tripoli, not the U.S., began the war; but he agreed that congressional authorization would otherwise be necessary even in the context of an attack on a single Tripoli warship.)

Thus the founding generation thought the Constitution reserved war-initiation power to Congress.  How could this be, though, if Congress has only the power to “declare War”, which we may think refers to making a (now-outmoded) formal announcement? Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?

The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities.  John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.”  Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way.  Vattel wrote: “When one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.”  Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks.  (References are found in my Chicago Law Review article, Part III; for a more comprehensive account, see this outstanding article by Saikrishna Prakash). Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war. 

Perhaps, though, the President also has power to declare war (after all, the Constitution expressly says only that Congress has it, not that the President doesn’t, and it could be part of the President’s power as commander-in-chief).  Returning to Hamilton, a key passage in his Federalist 32 argued that often constitutional power could be held concurrently by different entities.  But, he continued, an exclusive grant of power would arise where concurrent power would be “totally contradictory and repugnant” – that is, when one branch’s exercise of a power would wholly undermine an express grant to another branch.  Hamilton didn’t give the example of declaring war here, but it fits his model: war, once launched, cannot be undone without consequences.  If Congress’ power is to decide when war should begin, it follows that the President cannot independently launch attacks.

And the Constitution’s drafters expressly described the clause as designed to exclude presidential war-initiation power.  James Wilson told the Pennsylvania ratifying convention:  “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

 As a result, the founding generation’s views are clear and have firm basis in the Constitution’s text: the declare war clause gives Congress the exclusive power to decide when war should be “declared” – meaning begun by “word or action.”  In Libya, President Obama has “declared” a war – a limited one, to be sure, but still a war by 18th century definitions – without congressional approval.  That contravenes both the Constitution’s text and the founding era’s consensus understanding.

Political Commitments and Executive Power

by Michael Ramsey

[Michael D. Ramsey is a Professor of Law at the University of San Diego Law School and author of “The Constitution’s Text in Foreign Affairs” (Harvard Univ. Press, 2007).]

Duncan Hollis and Joshua Newcomer have written a fascinating article on an important and underappreciated topic. I agree with their basic propositions, especially that “political commitments” (as they call non-binding personal pledges by the President) are a distinct and crucial form of diplomacy, and that we need to understand how political commitments fit into the Constitution’s foreign affairs framework.

The article inspires two reactions. The first is that political commitments are a constitutional work-around. Arguably the Constitution’s framers erred in making international agreements too hard to undertake (by requiring two-thirds of the Senate to approve) and too inflexible once undertaken (by giving them automatic status as domestic law). In any event, the framers imposed a rigid international agreement process that the executive branch has found unsatisfactory. Over time, executive agreements and non-self-executing treaties emerged as ways to work around the framers’ formalistic diplomatic system to make it more flexible and more suited to executive branch desires. Political commitments similarly seem to respond to the Constitution’s inflexibility in international agreement-making. They are, in this sense, akin to executive agreements and non-self-executing treaties, with similar benefits to the executive branch.

My second reaction is that, unlike executive agreements and non-self-executing treaties, political commitments fit relatively easily into the Constitution’s text and original meaning. Duncan and Joshua don’t seem to agree, because they spend a good part of their article straining to give political commitments a constitutional defense. It’s true, of course, that the Constitution’s text doesn’t expressly mention political commitments and that the framers didn’t seem to have had them in mind. But the Constitution was designed to provide general principles that could encompass specifics not directly contemplated.

Opinio Juris Symposium: In Conclusion

by Michael Ramsey

Opinio Juris Symposium: Additional Thoughts on the President’s Military Response Power

by Michael Ramsey