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Human Rights

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:

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

Guest Post: Removing the cloak of immunity – the Director of Public Prosecutions for England and Wales accepts no immunity from criminal investigation into torture

by Oliver Windridge

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.]

Last week saw the discontinuation of alleged Bahraini torture survivor FF’s judicial review of the Director of Public Prosecutions for England and Wales (DPP) decision not to authorise a criminal investigation into the alleged involvement of Prince Nasser bin Hamad Al Khalifa, the son of the King of Bahrain, in torturing persons involved in the political protests in Bahrain in April 2011. Unfortunately, since the DPP withdrew from the case just prior to the court hearing there does not appear to be a final judgement, only this 2013 directions hearing judgement which  sets out the parties’ submissions.

As background, FF took part in Bahraini political protests in February and March 2011 which resulted in him being allegedly badly beaten by police and held without charge. In July 2012 a dossier prepared by the European Center for Constitutional and Human Rights (ECCHR) alleged that Prince Nasser was directly involved in the torture of detained prisoners linked to the same political protests FF participated in. In addition to being the son of the King of Bahrain, Prince Nasser also holds the position of Commander of the Royal Guard.

The ECCHR’s dossier was handed to the British police which in turn lead the Crown Prosecution Service for England and Wales (CPS) to indicate in August 2012 that Prince Nasser would enjoy personal immunity under Section 20 of the State of Immunity Act 1978 since Prince Nasser was a member of the Bahraini royal household and/or functional immunity pursuant to section 1 of the same act in relation to any conduct in his role as Commander of the Royal Guard.

Following a request for review of the CPS’s decision, the CPS Special Crime and Counter Terrorism division indicated in September and October 2012 that Prince Nasser did not enjoy personal immunity under Section 20 (1) (b) of the 1978 Act as his household was independent from that of his father, the King of Bahrain. It maintained however, that Prince Nasser still enjoyed functional immunity under Section 1 of the 1978 Act based on his position as Commander of the Royal Guard of Bahrain

FF sought judicial review of the CPS’s decision submitting that Section 1 of the 1978 Act does not apply to criminal proceedings. He cited in support Pinochet III and Jones v Saudi Arabia, both of which he argued supported his contention that public officials of foreign states have no functional immunity from criminal process in relation to the international crime of torture.  FF argued therefore that prosecution of Prince Nasser for torture committed in Bahrain would be possible in UK courts pursuant to the extraterritorial criminal jurisdiction under Section 134 of the Criminal Justice Act 1988. In January 2013 FF was granted judicial review permission.

As mentioned above, the matter was due to be heard in the High Court of England and Wales on 7 October 2014, roughly one year and 10 months after permission for judicial review was granted. However shortly before, the DPP appears to have accepted that Prince Nasser does not enjoy immunity from torture allegations and withdrew from the case.

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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:

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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.

Guest Post: Back to Square One after Sixty Years? The Tory Attack on the European Human Rights System

by Başak Çalı

[Başak Çalı is Associate Professor of International Law at Koç University Law School, Turkey, and a member of the Executive Board of the European Society of International Law]

We, in the ‘from Reykjavik to Vladivostok’ Europe, have grown accustomed to being proud of the European Human Rights System in the last forty or so years. We teach courses on European Human Rights Law that distill over ten thousand European Court of Human Rights judgments. We start our lectures on European Human Rights Law by pointing out that Europe, despite all its flaws, has the most effective regional system. We note that the European Court of Human Rights has been cited by the US Supreme Court.  We celebrate how the effective rights doctrine has recognised and empowered Irish catholic women trying to divorce, Cypriot gay men wishing to walk safely on the streets, Kurdish mothers looking for their disappeared sons, Bulgarian rape victims, Azeri journalists, British children wrongly placed in care and more, so many more. We underline the importance of the guidance that the European Court of Human Rights has provided to domestic judges, prosecutors, law enforcement agencies and legislators on how to take into account human rights when doing their respective jobs. We also salute the fact that the European Human Rights System has brought those us of who live between Reykjavik and Vladivostok together in a recognition of our common humanity, its frailty and our desire for a common dialogue on human rights regardless of our jurisdictional differences. That is why a judge in Diyarbakır, Turkey has given some thought to Mr. McCann and the British military operation in Gibraltar in 1988. Why a judge in Scotland has asked herself what does the case of Salduz mean for her to respect fair trial rights.  We also spend long hours in classrooms, courtrooms and parliaments discussing whether the European Court of Human Rights got the ‘margin of appreciation’ right this time.

Now all that celebration and all the hard and painstakingly incremental gains of the European Human Rights System, a system based on solidarity to reach the common purpose of the promotion of human rights of all, is under serious threat. Unlike the debates that have ensued in the last ten years, the danger is not the Court’s famed gigantic case-load (as has been captured in the cliche of the ‘victim of its own success’) or the slow implementation of its judgments by some of the worst offenders. One political group in one country is out to shake the very foundations of the European Human Rights System.
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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.

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)…

What I Did on My Summer Vacation: Russian Edition

by Jens David Ohlin

Russia has skillfully managed to devote military support to the separatists in Eastern Ukraine. Just how much support — and what kind of support — is unclear, since Russia formally denies that they are directly involved in the ongoing hostilities there. Ukrainian officials have insisted that they have specific proof that Russian troops and their equipment have not only crossed the border into Ukraine but have also engaged Ukrainian government troops. It is not unreasonable to speculate that, but-for the Russian assistance, the conflict would have concluded long ago with a Ukrainian government victory over the rebels.

In the face of mounting evidence of Russian involvement, the rebels have claimed that Russian soldiers deployed in Ukraine are there voluntarily while on vacation. This is an obvious attempt to deny Russian liability, under basic rules of state responsibility, for the actions of the troops. The question is whether this argument holds any water.

First, it is unclear whether the statement is accurate. The world community does not have access to the W2s, or the Russian equivalent, for the soldiers — so if the rebel leaders are lying, the world would have no idea. I also find it hard to believe that Russian troops, or any government troops for that matter, would voluntarily place themselves in harms way for no compensation whatsoever.  More likely they are receiving cash payments covertly.

Second, even if the claim is true, and the Russian commanders have officially placed the soldiers on vacation (or furlough), there is the additional issue that they are no doubt using Russian government equipment, as opposed to their private “home” materials. While individual soldiers might own personaI firearms, I find it hard to believe that Russian troops own their own armored personnel carriers that they keep in their backyards for “vacation” purposes.

Third, and perhaps most importantly, it is unclear what the legal consequences of these “vacation deployments” are even if they are true. The standard is whether the troops are under the control (either effective control or overall control depending on which standard applies) of the Russian government. Employment and monetary payments are just one way of exercising control, as is operational control. However, suppose Russia provides the rebels with 50,000 troops who are “volunteering” to fight with the rebels? Would this automatically entail that Russia has no control over the troops? It seems to me that control requires a richer formulation, one that is sensitive to the varying ways that states can engage in covert assistance across borders. Although states may attempt to deny responsibility for this assistance, this does not mean that international law should let them without suffering the consequences.

In Nicaragua, the ICJ concluded that the mere provision of financial or military assistance, standing on its own, is insufficient to generate state responsibility for the actions of the assisted troops (via direct imputation). This was (and is) a sensible precedent, because the basic contours of complicity requires that international law recognize the various ways that assistance can trigger responsibility. Even if Russia only organized and armed the troops, but did not directly pay them a salary, it would seem to me that this constitutes an illegal interference in Ukrainian domestic sovereignty (with regard to both political independence and territorial integrity), in violation of the UN Charter and customary international law (in much the same way as the ICJ concluded in Nicaragua).

Of course, all of this might be moot. It is possible that Russia is engaged in direct operational control over the rebels, with logistical coordination, air support, and satellite imagery, that unquestionably demonstrates their responsibility even under the effective control test. But at this point the facts are very much unknown.

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

Why Title 50 Does Not Provide the CIA with a Public Authority Justification

by Kevin Jon Heller

As I noted in my previous post, my co-blogger Deborah Pearlstein has suggested that a covert operation authorised by the President under Title 50 of the US Code could function as the CIA’s equivalent to the AUMF in terms of its authority to kill an American citizen overseas. Here is what she has argued:

Here, even if the AUMF was not meant to authorize the CIA to do anything, the CIA has broad authority under Title 50 of the U.S. Code to engage in operations overseas, provided it has relevant Presidential approval and complies with requirements of congressional notification. In other words, I can imagine a straightforward explanation for why such an exception would apply to the CIA as well. That it is not evident from the memo is, I suspect, far more a function of redaction than absence of legal authority.

With respect to Deborah, I don’t think the Title 50 argument works. There is no question that 50 USC 3093 provides the President with considerable authority to authorise “a covert action by departments, agencies, or entities of the United States Government” that he determines “is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States.” But the President’s authority is not unlimited; indeed, Title 50 contains two important restrictions that very strongly suggest the President could not legally have authorised the CIA to kill an American citizen overseas, and particularly not Anwar al-Awlaki.

The first limit is provided by 50 USC 3093(e), which defines “covert action” for purposes of Title 50 generally (emphasis mine):

As used in this subchapter, the term “covert action” means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include 

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

(2) traditional diplomatic or military activities or routine support to such activities;

(3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or

(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.

The US government has consistently argued that its drone program, both in Yemen and elsewhere, only targets combatants who are involved in a non-international armed conflict between the US and al-Qaeda. While serving as the State Department’s Legal Advisor, for example, Harold Koh claimed that “as a matter of international law, the United States is in an armed conflict with al-Qaeda and its associate forces,” and that “in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.” Indeed, the new White Paper, like the previous memorandum, emphasizes (p. 12) that “the frame of reference” for whether the CIA is entitled to the public-authority justification regarding Anwar al-Awlaki “is that the United States is currently in the midst of an armed conflict, and the public-authority justification would encompass an operation such as this one were it conduct by the military consistent with the laws of war.”

There is no question, then, that the US government views the use of lethal force against an American citizen who is “a senior leader of al-Qaida or its associated forces” — such as al-Awlaki — as a “traditional military activity.” But if that’s the case, 50 USC 3093(e)(2) specifically prohibits the President from relying on Title 50 to authorise the CIA to engage in such targeting.

Moreover, even if it could somehow be argued that targeting “a senior leader of al-Qaida or its associated forces” in the “armed conflict” between those forces and the US is not a “traditional military activity,” 50 USC 3093(a)(5) would still prohibit the President from authorising the CIA to kill any such leaders who is an American citizen. Section 3093(a)(5) provides that a Presidential finding “may not authorize any action that would violate the Constitution or any statute of the United States.” The foreign-murder statute, 18 USC 1119, is undeniably a “statute of the United States.” The President thus has no authority whatsoever to authorise the CIA to violate section 1119.

That conclusion, it is important to note, is not affected by whether 18 USC 1119 incorporates the public-authority justification — which I believe it does. In order to claim the justification as a defence to a violation of section 1119, the defendant must obviously have the requisite public authority to kill an American overseas. And 50 USC 3093(e)(2) and 50 USC 3093(a)(5) each independently deny the President the right to bestow that authority on the CIA via a covert-action finding under Title 50.

In short, and contrary to the new White Paper, neither the AUMF nor Title 50 provide the CIA with a get-out-of-jail-free card with regard to 18 USC 1119. So unless there is some other source of the CIA’s supposed public authority to kill Americans overseas — and I can’t imagine what it could be — Anwar al-Awlaki’s killing by the CIA is indeed properly described as murder.

NOTE: Marcy Wheeler offers some similar thoughts here.