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International Law in U.S. Courts

Defending the FSA Against Russia — the Jus ad Bellum Perspective

by Kevin Jon Heller

It’s been widely reported over the past few days that Russia has been bombing the Free Syrian Army under the pretext of joining the fight against ISIS. That development spurred an interesting post at Lawfare by Bobby Chesney about whether Art. II of the Constitution — the Commander-in-Chief Clause — would permit the US to defend the FSA, which it has been equipping and training. As Bobby points out, rather skeptically I think, the USG seems to believe it would (internal block quote omitted):

[I]t is an interesting legal question, especially in light of recent testimony from Under Secretary of Defense for Policy Wormuth to the effect that Article II could be invoked to permit U.S. forces to defend DOD-trained Syrian forces in the event of an attack on them by Assad regime forces.  Wormuth’s position was repeated by an unnamed “senior administration official” a few days ago.

Given this position, is there any reason to think the answer would be different if we are talking instead about Russian forces attacking those same DOD-trained units?  I see no reason why that would be the case, though the policy stakes obviously are immensely different.  Next, is there anything different if instead we are talking about CIA-trained, rather than DOD-trained, Syrian forces.  Again, I can’t see why this would alter the analysis; under the apparent theory of the Obama administration, the government already possesses whatever legal authority would be needed to use force to prevent Russian jets from striking U.S.-sponsored Syrian units.

I have no doubt Bobby’s right — as I said on Twitter, he has forgotten more about Art. II than I ever knew. I just want to point out that invoking Art. II to defend the FSA against Russia would be more than a little perverse given the status of such an attack under international law — the jus ad bellum, in particular.

Let’s start with Russia. Although its attacks on the FSA might have violated the jus in bello — I certainly wouldn’t be surprised — they did not violate the UN Charter’s prohibition on the use of force with regard to Syria, because they were conducted with the Syrian government’s consent. Nor is there any plausible argument for viewing the Russian actions as an armed attack on the US — whatever the Art. II argument about the US’s “national interest” (see this skeptical Jack Goldsmith post), an attack on the FSA is not a use of force against the US’s “territorial integrity or political independence.”

What this means, of course, is that the US could not invoke self-defense under Art. 51 to justify using force against Russia to defend the FSA — say, by destroying a Russian bomber. Not only would such a use of force create an international armed conflict between the US and Russia, it would itself qualify as an armed attack under Art. 2(4), thereby permitting Russia to use force against the US in self-defense. Russia would simply be responding to an unlawful act of aggression by the US.

(To be sure, the same analysis would apply to any US use of force against Syria in defense of the FSA. But it would obviously be a much bigger deal for the US to commit an aggressive act against a major Western power — one that is also a permanent member of the Security Council.)

Again, I have no idea how these jus ad bellum considerations affect the Art. II analysis. Knowing the US, the fact that attacking Russia would qualify as an unlawful act of aggression might be irrelevant. The optics of using Art. II to justify such an attack would nevertheless be deeply troubling, to say the least.

That “Broad Consensus” for Unwilling/Unable Just Got Less Broad

by Kevin Jon Heller

A few days ago, I pointed out that Kate Martin’s “broad consensus that there is a right to use military force in self-defense when the host country is unable or unwilling to stop the attack” actually includes no more than four of the world’s 194 states. That consensus is not exactly broad — and it looks even shakier now that Russia has apparently rejected the “unwilling or unable” test in the context of Syria:

On Saturday, France launched a campaign of airstrikes against the Islamic State in Syria. Commenting on the effort, Russian Foreign Ministry spokeswoman Maria Zakharova pondered what kind of conception of ‘self-defense’ would drive one country to carry out an operation to bomb another without that country’s explicit permission.

Earlier, Prime Minister Manuel Valls was cited by French media as saying that Paris’s bombing campaign constitutes self-defense. “We are acting in self-defense,” Valls noted, according to Reuters.

In a post on her Facebook page, Zakharova pondered that “it would be nice to know more about this concept of self-defense, in the form of air strikes [on the territory of Syria,] a state which did not attack anyone, and without its consent, and about this concept’s compliance with international law.”

The spokeswoman referred to the fact that in its air campaign against ISIL, the Western coalition never once found the need to consult with Syria’s legitimate government, and on the contrary, has repeatedly declared that the elected government of Bashar Assad cannot be part of Syria’s future.Zakharova noted that she found it entertaining that “the referendum in Crimea is called an annexation, but air strikes conducted without the approval of the Security Council or of the receiving side is self-defense.”

The spokeswoman emphasized that while “it’s clear that the Islamic State is a threat to the entire world,” first two questions must be answered: “First, who was it that created ISIL? And second, on what basis are you acting on the territory of a sovereign state, bypassing a legitimate government which not only does not support, but is selflessly fighting against ISIL?”

Zakharova concluded that “this is not international law; this is its abolition in front of a shocked international community.”

If I was being picky, I would acknowledge that Zakharova did not specifically reject “unwilling or unable.” Her emphasis on the requirement of Syria’s consent nevertheless implicitly rejects “unwilling or unable” far more clearly than the statements by various governments that supposedly — according to Ashley Deeks — support the test. So it is more than fair to count Russia in the anti-“unwilling or unable” camp.

If you’re keeping score at home, that makes it: at most four states that support “unwilling or unable”; at least one state that rejects it.

And yet scholars claim that there is a “broad consensus” in favour of the test. Thus does method die not with a bang, but a whimper.

Does President Obama Have to Send the “Cyber Arms Control” Agreement with China to the Senate?

by Julian Ku

U.S. and Chinese negotiators are apparently very close to working out an agreement to limit the use of cyberweapons against each other.  There is talk that this agreement will be concluded before Chinese President Xi Jinping’s state visit to the U.S. next week.  The agreement will be pretty narrow in scope and apparently would not address the acts of cyber-theft and espionage that China allegedly carried out earlier this year. According to the NYT:

The United States and China are negotiating what could become the first arms control accord for cyberspace, embracing a commitment by each country that it will not be the first to use cyberweapons to cripple the other’s critical infrastructure during peacetime, according to officials involved in the talks.

I am skeptical that this kind of agreement could be effective for the reasons that Jack Goldsmith and Paul Rosenzweig have laid out (see also Goldsmith at greater length here).  But putting aside its effectiveness, it is worth asking whether a “cyber arms control agreement” would be the type of an agreement that required approval by two-thirds of the Senate as a treaty.

Much depends on exactly what the agreement purports to do.  If the agreement actually contains a commitment by the U.S. to “not be the first to use cyberweapons to cripple the other’s critical infrastructure”, than it is much closer to the traditional kinds of arms control agreements that have usually been approved under the U.S. system as treaties.  Unlike the Iran Nuclear Deal (which is mostly about lifting economic sanctions), the U.S. would be committing to refraining from using certain weapons or from exercising its military forces.

On the other hand, U.S administration sources caution that this agreement would not lay out specific obligations, but it “would be a more ‘generic embrace’ of a code of conduct adopted recently by a working group at the United Nations.” But even an agreement incorporating that code of conduct might be considered an “arms control” agreement since it requires that a state “should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public;” The rest of the code of conduct also imposes fairly robust obligations on a state.

I will have to think about this some more, but on first cut, it is possible that this cyber control agreement will have to be sent to the Senate as a treaty.  I think Senate approval of such a treaty would be a non-starter given the current political climate, so perhaps the Obama Administration will announce that this will be a sole executive agreement after all.  Whether that is permitted under the Constitution remains unclear though.


Why Professors Ackerman and Golove Are Still Wrong About the Iran Deal

by Julian Ku

I thank Professors Ackerman and Golove for taking the time to respond to my earlier post on whether a future President could unilaterally withdraw from the Iran Nuclear Deal.  But I remain unconvinced by the claims they made in their original Atlantic essay that a future President’s unilateral withdrawal from the Iran Deal would be “lawless”. Here’s why I still think they are wrong:

1)  Ackerman and Golove argue that the Iran Nuclear Agreement Review Act “authorizes” President Obama to enter into binding congressional-executive agreement with Iran.  In their sur-reply, Professors Ackerman and Golove cite two pieces of statutory text from the Iran Nuclear Agreement Act which they say is congressional authorization for the President to conclude the Iran Deal (the JCPOA).  They point out that the act “specifically defines ‘agreement’ to include any accord with Iran ‘regardless of whether it is legally binding or not.’ § 2610e(h)(1).” They then point out that the Act “authorizes the President to implement sanctions relief unless Congress enacts ‘a joint resolution stating in substance that the Congress does not favor the agreement.’ 42 U.S.C. § 2610e(c)(2)(B).”

For the purpose of this argument, it doesn’t really matter whether the agreement is legally binding or not.  The real problem is that Professors Ackerman and Golove do not (and cannot) cite statutory text “authorizing” the President to enter into an agreement with Iran.  They can’t cite this text because that language does not exist in the Act.  The Act defines an “agreement” broadly because Congress wants the President transmit everything, including supporting materials and annexes, to Congress.  The Act suspends the President’s pre-existing power to suspend or terminate sanctions on Iran while Congress “reviews” the agreement.  Congress may vote a resolution of disapproval, which would prevent the President from lifting or waiving sanctions, but it doesn’t say he can’t enter into the Agreement.  But Congress may also simply do nothing (which is what it has done), which would also allow the President to lift the sanctions after 90 days.  Nothing in the Act says the President can’t enter into the Agreement. It just says, once he does so, he has to disclose that agreement to Congress and hold off on implementation.*

Professors Ackerman and Golove somehow read this framework as an authorization of the President’s power to conclude an agreement, but a more plausible reading of the Act as a whole sees it as a suspension of the President’s pre-existing power to implement an agreement.  If you think (as I do) that the President has broad powers to conclude international agreements (especially nonbinding ones) without Congress, then this law makes a lot of sense since it requires the President to suspend implementation of the agreement for 60 or 90 days and disclose all information about the agreement.

Under the Ackerman/Golove reading of this language, Congress has authorized the President to enter into whatever agreement with Iran he wants, and the only condition it places on it is that Congress gets 90 days to review it before it automatically goes into effect. Why would  Congress bother to give the President the power to enter into an agreement without reserving for itself the power to approve it?

It is worth noting that Congress knows how to specifically authorize an executive agreement, and require its approval before going into effect.  In Section 103(b) of the Trade Promotion Authority Act (enacted about the same time as the Review Act), Congress states that:

“[w]henever the President determines that one or more existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States and that the purposes, policies, priorities, and objectives of this title will be promoted thereby, the President

(A) may enter into trade agreements with foreign countries before— (i) July 1, 2018…

[Emphasis added].

Moreover, the trade agreements require approval by a separate Act of Congress.  As the TPA bill makes clear in Section 106, no agreement “entered into under section 103(b) shall enter into force with respect to the United States if (and only if)—” among other requirements — “(F) the implementing bill is enacted into law.” [Emphasis added).  Again, Congress is making clear that it ( and not the President) is the one who has authorized the agreement and that the agreement cannot have any force until Congress acts to approve and implement it.

It bears repeating: there is no language even remotely like this in Iran Nuclear Agreement Review Act. There is no language saying the President can enter into an agreement, nor is there language explaining when that agreement has “entered into force.”  Congress knows how to authorize an international agreement, and the most natural reading of the Iran Nuclear Agreement Review Act is that it didn’t do so there.

2) Professors Ackerman and Golove also argue that a future President cannot legally (under U.S. law) terminate this agreement without either approval from Congress or without undermining U.S. credibility in trade agreements like NAFTA or the WTO.

I find this argument lacking for at least two reasons.

First, as I stated above, the Iran Nuclear Agreement Review Act doesn’t follow the pattern of trade promotion authority laws  in any way so it is highly unlikely that any trading partners will worry about a President Rubio pulling out of the WTO because he pulled out of the JCPOA. (Simon Lester makes that point here)

Moreover, the Review Act does not in any way prohibit a future President from withdrawing from the JCPOA, nor does it prohibit the President from reimposing sanctions on Iran. He is perfectly free to put them back on without violating the Review Act or any other U.S. statutory law.

The contrast with trade agreements is again instructive because Congress knows how to reserve to itself the power to terminate an agreement.  Under Section 125 of the Uruguay Agreements Implementation Act, Congress can vote every five years on whether to pull out of the WTO. This suggests that Congress has reserved for itself some power to terminate the WTO agreement. And because the laws implementing the WTO agreement change all sorts of other U.S. laws, it makes sense for Congress to supervise how and when the U.S. gets out. (It bear repeating: terminating the JCPOA does NOT violate or change any U.S. domestic law).

Second, as I noted in my original post, even if the Iran Deal was a treaty approved by the Senate, there is good reason to think the President could withdraw from the Iran deal-treaty without going back to the Senate for approval.  President Bush withdrew from the Anti-Ballistic Missile treaty without going to the Senate, President Carter withdrew from the U.S.-Taiwan defense treaty without going to the Senate, etc.  For this reason, a future President could withdraw from the JCPOA (even if the JCPOA is legally binding) without going back to Congress, especially where the Review Act does not reserve to Congress any termination rights.  Thus, even if Professors Ackerman and Golove are right that the Review Act authorizes the President to enter into an agreement, it doesn’t REQUIRE him to do so or REQUIRE him to stay in the JCPOA. (And he can withdraw via the JCPOA’s provisions if he chooses).

In conclusion, I am back where I started.  Professors Ackerman and Golove use the thinnest of statutory language to claim that Congress “authorized” the President to make an agreement, and further, that Congress has also prohibited the President from withdrawing from it.  That’s a lot of work for a mere definition of the word “agreement” to carry. It’s far too much, especially when one considers the way Congress goes about its business in the trade agreement context.  The next President can unilaterally withdraw from the JCPOA. And, with all due respect to Professors Ackerman and Golove, such a withdrawal will be the opposite of “lawless.”


*As a side note, the fact that the definition of an agreement includes non-binding political commitments suggests that Congress is really after review and disclosure, not authorization and approval.  Could Congress authorize the President to enter into a non-binding political commitment? And then require him and future presidents to stick to such a commitment?

President Rubio/Walker/Trump/Whomever Can Indeed Terminate the Iran Deal on “Day One”

by Julian Ku

Professors Bruce Ackerman and David Golove argue in this Atlantic essay that the next President cannot withdraw from the Iran agreement because it is a “congressionally authorized executive agreement.” They argue that Senator Marco Rubio’s pledge to terminate the Iran Deal on day one “would destroy the binding character of America’s commitments to the IMF, the World Bank, NAFTA, and the World Trade Organization….The President can no more walk away from them than he can from any other law or treaty.”

I am sorry to say that this article, which comes from two super-respected legal scholars, is deeply and badly mistaken.

This argument is based on the premise that the “legislation that Congress adopted last May, …explicitly grants the Administration authority to negotiate and implement binding legal commitments with Iran.” In their view, the Iran Deal is a simply a congressional-executive agreement exactly akin to U.S. trade agreements like NAFTA.

But this premise is wrong.  The U.S. government has repeatedly stated (see here)  that the “Joint Coordinated Plan of Action” between Iran and the P-6 powers is a “nonbinding” political commitment. And the JCPOA itself talks only of “voluntary measures.” (see Dan Joyner’s discussion of this here).   Even the United Nations Security Council Resolution that implements the JCPOA does not legally bind the U.S. to stick to the JCPOA (as John Bellinger argues here).

Nor does the Iran Nuclear Agreement Review Act explicitly (or implicitly) authorize the President to make an agreement with Iran that would go beyond the President’s existing constitutional powers to make sole-executive agreements or nonbinding political commitments. The Review Act simply sets up a disclosure and timetable regime for the President’s disclosure of his foreign affairs activities that he wouldn’t otherwise have to disclose to Congress.

It is nothing like the Trade Promotion Authority that the President has received to conclude trade agreements like NAFTA or the WTO. While the Review Act discusses agreements that were already made and sets out disclosure and timing requirements, Trade Promotion Authority laws (like the most recent one) say things like: “the President— (A) may enter into trade agreements with foreign countries before” certain dates and then cannot afterwards.”  This is explicit authority, and no similar language can be found in the Iran Nuclear Agreement Review Act.

In any event, Ackerman and Golove are also mistaken on a more mundane point. Even if the Iran Deal is a binding congressionally authorized international agreement, a future President could withdraw from such an agreement unilaterally.  This is true because: 1) the JCPOA itself has an “exit ramp” under Paragraph 36 which allows the U.S. to terminate its participation after 35 days if its concerns about Iran’s compliance are not satisfied; and 2) the President appears to have broad constitutional powers to unilaterally terminate treaties without Congress or the Senate’s approval.  Surely, the President could terminate a nonbinding voluntary “plan of action” without going back to a Congress that didn’t really authorize him to make an agreement in the first place.

Even though I am increasingly convinced that the Iran Nuclear Deal is a bad deal for the U.S. and Europe (not to mention Israel), I have publicly defended the legality of President Obama’s decision to conclude a nuclear “agreement” with Iran without going to Congress to get approval. But the decision to bypass Congress has got to have a price for the President.  And that price is that the Iran Deal does not bind his predecessor either as a matter of constitutional or international law.

The Difference Between the British and American Debates Over the Legality of Drone Strikes: The Brits Seem to Care About International Law

by Julian Ku

Earlier this week, British Prime Minister David Cameron announced that the UK had conducted a lethal drone strike against one of its own nationals (affiliated with ISIS)  in August and that the British government was confident of the strike’s legality under international law.

As an outside observer, I am fascinated at how important the drone strike’s legality under international law seems to be for UK policymakers and commentators.  The BBC’s useful analysis of “Who, What, Why: When is it legal to kill your own citizens?” is exclusively focused on the legality of the strike under international law.  So is this editorial from the UK newspaper The Independent.

To be sure, the US debate over drone strikes also dealt seriously with international law.  But the most powerful legal arguments against drone strikes were those made on the basis of the U.S. Constitution’s Due Process Clause and U.S. statutes criminalizing murder of U.S. nationals abroad. International legality has not played a big part in this litigation, nor even in its broader public debate. Senator Rand Paul of Kentucky famously filibustered for a whole day against targeted killings but his legal complaint was wholly constitutional.

But as far as I can tell, there has been little discussion of whether the UK government’s killing of a UK national abroad violates the UK Human Rights Act (incorporating the European Convention on Human Rights) or UK statutory law more generally.  I may be missing something, but it does seem a telling difference in the nature of public and legal discourse in the two countries.


The National Security Law Journal Outdoes the Onion

by Kevin Jon Heller

The journal has published what has to be the most ridiculous article in the history of IHL scholarship. And no, I’m not being hyperbolic. Written by someone named William C. Bradford, identified — terrifyingly —  as an “Associate Professor of Law, National Security, and Strategy, National Defense University, Washington, D.C,” it’s entitled “Trahison des Professeurs: The Critical Law of Armed Conflict as an Islamist Fifth Column.” (Props to the author for knowing how to use Google: the main title translates as “treason of the professors.”)

I’m not going to waste even a few seconds of my life responding to the article, which blathers on for 180 pages and nearly 800 footnotes. (Seriously.) I will just offer two quotes, almost chosen at random. In the first, the author advocates prosecuting CLOACA scholars (the “critical law of armed conflict academy” — a scatological acronym the author no doubt finds profoundly clever) for material support for terrorism. Bonus points for actually calling for a new House Un-American Activities Committee!

In concert with federal and state law enforcement agencies, Congress can investigate linkages between CLOACA and Islamism to determine “the extent, character, and objects of un-American propaganda activities in the U.S. [that] attack the . . . form of government . . . guaranteed by our Constitution.” Because CLOACA output propagandizes for the Islamist cause, CLOACA would arguably be within the jurisdiction of a renewed version of the House Un-American Activities Committee (Committee on Internal Security) charged with investigating propaganda conducive to an Islamist victory and the alteration of the U.S. form of government this victory would necessarily entail.

“Material support” includes “expert advice or assistance” in training Islamist groups to use LOAC in support of advocacy and propaganda campaigns, even where experts providing such services lack intent to further illegal Islamist activity. CLOACA scholarship reflecting aspirations for a reconfigured LOAC regime it knows or should know will redound to Islamists’ benefit, or painting the United States as engaged in an illegal war, misrepresents LOAC and makes “false claims” and uses “propaganda” in a manner that constitutes support and training prohibited by the material support statute. Culpable CLOACA members can be tried in military courts: Article 104 of the Uniform Code of Military Justice provides that “[a]ny person who . . . aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things . . . shall suffer death or . . . other punishments as a court-martial or military commission may direct;” the Rule for Court Martial 201 creates jurisdiction over any individual for an Article 104 offense.

But that’s not my favourite quote. This one is — in which the author argues that that CLOACA scholars are unlawful combatants who can be killed in their law-school offices:

CLOACA scholarship and advocacy that attenuates U.S. arms and undermines American will are PSYOPs, which are combatant acts. Consequently, if these acts are colorable as propaganda inciting others to war crimes, such acts are prosecutable. CLOACA members are thus combatants who, like all other combatants, can be targeted at any time and place and captured and detained until termination of hostilities. As unlawful combatants for failure to wear the distinctive insignia of a party, CLOACA propagandists are subject to coercive interrogation, trial, and imprisonment. Further, the infrastructure used to create and disseminate CLOACA propaganda—law school facilities, scholars’ home offices, and media outlets where they give interviews—are also lawful targets given the causal connection between the content disseminated and Islamist crimes incited. Shocking and extreme as this option might seem, CLOACA scholars, and the law schools that employ them, are—at least in theory—targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism.

No, I’m not kidding. And no, the author apparently isn’t either.

I won’t tell readers to go read the article for themselves, because that would be cruel and unusual punishment. I will simply end by pointing out the most fundamental flaw in the article: namely, that it fails to note that I am a card-carrying member of CLOACA. Indeed, I’ve been advocating for radical Islam to defeat the West for years now, both here on the blog and in my scholarship. Surely I should be targeted, too!

UPDATE: The author of the article, William C. Bradford, resigned from Indiana University-Indianapolis’s law school in 2005 after it was revealed that he had lied about his military record — including falsely claiming to have won a Silver Star during Desert Storm. See this article in Inside Higher Education.

U.S. Prepared to Launch Possibly Illegal Airstrikes Against Assad (But That’s OK)

by Julian Ku

Yesterday, the Wall Street Journal reported that President Obama has authorized U.S. military forces to use air power to defend  U.S.-trained Syrian rebels if those rebels are attacked by the Syrian government forces.

President Barack Obama has authorized using air power to defend a new U.S.-backed fighting force in Syria if it is attacked by Syrian government forces or other groups, raising the risk of the American military coming into direct conflict with the regime of President Bashar al-Assad.

“For offensive operations, it’s ISIS only. But if attacked, we’ll defend them against anyone who’s attacking them,” said a senior military official. “We’re not looking to engage the regime, but we’ve made a commitment to help defend these people.”

I totally understand the reason for this policy. If the U.S. is going to train and support Syrian forces, and give them air support, it makes sense to provide air cover against all attacks.  But the legality of this policy under U.S. law requires reliance on the kind of pure presidentialism President Obama is supposedly against.  And its legality under international law is pretty tenuous as well.

Under U.S. law, the President is sort-of-authorized to attack ISIS under a very sketchy interpretation of the 2001 Authorization for the Use of Military Force. It is a very sketchy interpretation, but even that sketchy interpretation can’t justify air strikes on the Syrian government in Syrian territory and in defense of rebels involved in the Syrian civil war.  So the only legal theory that would support the U.S. position here is reliance on the President’s inherent powers under Article II of the Constitution without any claim of congressional authorization.  That’s all well and good, but it is another nail in the coffin for the congressionalist legal theory embraced by Candidate Obama in 2007.  Remember that? When Obama said the Constitution required the President to go to Congress unless the President needed to act against an imminent attack?  It seems so long ago.

Under international law, the Russians are already pointing out that using military force in a foreign country against that country’s recognized government is a violation of the U.N. Charter since there is no Security Council authorization here.  There isn’t even a clear “humanitarian intervention” theory here, at least not if the air strikes are only defensive.

And yet, I have little doubt that the U.S. will carry out the strikes if needed and that there will be almost no fuss in the U.S. about its constitutionality.  Article II is alive and well in the Obama era.  There may be little bit more fuss overseas about its legality under international law, since that seems a tough case to make. But it is hard to imagine that international law will act as much of constraint here either.

Podcast Special! Why the Iran Deal is Constitutional, But Could Still End Up in U.S. Court

by Julian Ku

Due to my typical mid-summer lassitude (and a family vacation among the redwoods in California), I have not participated in the excellent legal blogosphere debate over the constitutionality of the Iran Nuclear Agreement which has included contributions from Jack Goldsmith, John Yoo, Michael Ramsey, John Bellinger, David Rivkin and many others.  Luckily for me, Prof. Jeffrey Rosen and the good folks at the National Constitution Center allowed me to share my thoughts in a podcast discussion with David Rivkin, who with his co-author Lee Casey, has argued in the WSJ that the Iran Deal is unconstitutional unless submitted as a treaty under Article II of the U.S. Constitution.  The 45-minute or so podcast can be found below, and I think it is worth listening in full.
But because I may not have made myself fully clear in the podcast, I try to summarize my thoughts here on why:  1) the Iran Deal does not have to be submitted as an Article II treaty; 2) the Iran Deal may allow individual U.S. states to impose sanctions on Iran which would likely lead to U.S. litigation.  David Rivkin does a great job explaining his views on the podcast, which are worth listening to in full as well.

A) In my view, the Iran Deal (or JCPOA) does not have to be submitted as an Article II treaty for at least two reasons.

First, the terms of the agreement, which describe its obligations as “voluntary”, indicate that it is a nonbinding “political commitment”.  Even the UN Security Council Resolution which supposedly enshrined the JCPOA into international law leaves some wiggle room for the U.S. allowing it to refuse to lift sanctions on Iran without violating the SC Resolution (or at least that is how John Bellinger reads it).

To be sure, there are indications that Iran itself doesn’t think the agreement is nonbinding and it does seem odd for the U.S. administration to make all this fuss over a 10 year agreement that is not binding, but (as Duncan has explained here and elsewhere), nonbinding political commitments are not unknown in diplomatic practice.

One example that I have been studying recently is the 1972 Shanghai Communique between the U.S. and China.   This seems a classic nonbinding diplomatic agreement which nonetheless had enormous consequences for US-China and global politics.  This and two later communiques remain crucial issues with respect to U.S. “promises” about the status of Taiwan and US promises to reduce arms sales to Taiwan.  It is not exactly the same as the Iran Deal, which purports to require its parties to take certain specific actions on certain dates, but it has some of the same flavor.

For this reason, I don’t think a promise by the President to commit the U.S. to do something beyond his term of office changes this analysis much (contra Mike Ramsey).  Presidents often promise on behalf of the U.S. to do things beyond his term, but as long as they are clear that these are political commitments, not legal ones, I don’t think a treaty is required.

Second, the JCPOA does not have to be submitted as a treaty because it doesn’t require the U.S. to change its domestic laws or even to change any domestic policy that is not already within the President’s constitutional or delegated statutory powers.  Crucially, the President has delegated authority under the various sanctions statutes to waive or lift those sanctions without getting further congressional approval.  That is by far the most important U.S. obligation under the JCPOA.  The idea of giving the president these powers to lift sanctions implies that he will seek out certain changes in behavior by the sanctioned governments and then use those promised changes (by say Iran, or in the recent past Burma) as a basis to lift the sanctions.

There is a cost for the U.S. government in going the nonbinding route.  It means that Iran should not feel itself “legally” bound to abide by the agreement, or at least those parts that are not enshrined in the UN Security Council Resolution.  For U.S. constitutional purposes, it also means that any future president can withdraw from these political commitments without any requirement of legal consultation with Congress or any concerns about violating international law.  A U.S. President is also empowered to withdraw from its UN Security Council commitments as well.  (Actually, the JCPOA itself makes it pretty easy for the U.S. president to terminate the agreement according to its own terms).  This seems only fair, however, and the administration clearly seems that this is a price worth paying to avoid the Article II treaty process.

B) State-level Sanctions on Iran Are Most Likely to End Up in Court

The individual states (e.g. New York or California) could impose certain sanctions on Iran after the deal goes into effect.  Such sanctions will probably face litigation from the U.S federal government which will claim that any state-level sanctions are preempted by the JCPOA.  But because the JCPOA is a nonbinding agreement, the preemptive effect of the JCPOA is weaker than of a full-scale treaty or executive agreement.  The outcome of such a case against state-level sanctions is far from clear and may require the federal court to consider the nature of the JCPOA more carefully. My guess is that they would find it constitutional, but might be inclined to uphold the state-level sanctions. That last finding is a close call and I would love to see that case, which could very well happen in the near future.

In short, although I don’t think the Iran Deal is a very good deal for the U.S. and I hope Congress blocks it, I don’t think the JCPOA is unconstitutional.  We will hopefully get some litigation on this point in the near future when some state rolls out its anti-Iran sanctions.  But opponents of the deal should focus on the politics (getting to 67 votes in the Senate and/or a Republican President) rather than the law.

The Gaza Report’s Treatment of Warnings: A Response to Blank

by Kevin Jon Heller

Laurie Blank published a post yesterday at Lawfare entitled “The UN Gaza Report: Heads I Win, Tails You Lose.” The post accuses the Independent Commission of Inquiry’s report on Operation Protective Edge (“Gaza Report”) of “completely undermin[ing] the foundational notion of equal application of the law” with regard to three areas of IHL: warnings, civilian vs military objects, and compliance. None of Blank’s criticisms are convincing, but in this post I want to focus solely on her first topic, warnings. Here is what she says about the Commission’s discussion of whether Israel complied with its obligation under IHL to provide civilians in Gaza with “effective advance warning” prior to attack:

First, consider the report’s treatment of warnings, one of the precautions set out in Article 57 of Additional Protocol I.  Article 57 mandates that when launching attacks, “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”  The Commission examines Israel’s warnings in great detail, including leaflets, telephone calls, texts and roof-knocks, noting that the warnings often did lead to successful evacuation and save many lives.  However, the Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.” (¶ 237).

However, LOAC contains no requirement that the civilian population be able to act on the warnings in order to find them effective.  Instead, the legally correct approach is to examine whether the warnings generally informed civilians that they were at risk and should seek shelter. In other words, the legal issue is whether they were effective in transmitting a warning, not whether the civilians actually heeded them. The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC. Yet the Commission bases its conclusions on the post-hoc question of whether civilians actually found shelter, which ultimately depends on a host of considerations outside the control of the attacking party.

Unfortunately, both paragraphs misrepresent the Gaza Report. Let’s consider Blank’s claims one-by-one.

[T]he Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.”

The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC.

These statements are misleading. The subsection of the Gaza Report that Blank criticises focuses on Israel’s controversial use of “roof knocking,” not on its use of phone calls to civilians located in or near buildings about to be attacked. (The subsection is entitled “Roof Knock Warnings.”) Indeed, the entire point of the subsection is to explain why roof-knocking does not provide civilians with effective advance notice unless it is combined with a phone call or “other specific warnings” (¶ 239). Blank does not challenge the Commission’s conclusion in that regard. She does not even acknowledge it…

Fourth Annual Junior Faculty Forum for International Law

by Kevin Jon Heller

The forum is being held this week in Florence, Italy. Here is the description:

The Annual Junior Faculty Forum for International Law was launched in the summer of 2011. It held its inaugural event at the New York University School of Law in May 2012; the second Forum was held at the University of Nottingham in May 2013 and the third (and most recent) Forum occurred at the University of Melbourne in July 2014. The Forum is designed as a regular addition to the international law calendar; its founding co-convenors are Dino Kritsiotis, Professor of Public International Law in the University of Nottingham, Anne Orford, Michael D. Kirby Professor of International Law in the University of Melbourne, and J.H.H. Weiler, President of the European University Institute in Florence. The Forum will allow international legal scholars, in the first six years of their academic career, a unique opportunity to present their research work by being paired with a senior scholar in the field of international law or related fields, who will lead a discussion of their presentation within the Forum.

The fourth Forum will convene at the European University Institute in June 2015, and selected presentations from the Forum will be published in the European Journal of International Law (Oxford University Press), a practice established from the inaugural Forum.

The young scholars invited to participate this year are: Rohini Sen (O.P. Jindal Global), Kristina Daugirdas (Michigan), Ingo Venzke (Amsterdam), Anne-Charlotte Martineau (Max Planck), Oisin Suttle (Sheffield), Nicolas M. Perrone (Universidad Externado de Colombia), Deborah Whitehall (Monash), Anna Dolidze (Western), Mieke van der Linden (Max Planck), Arman Sarvarian (Surrey), Surabhi Ranganathan (Warwick), Philippa Webb (King’s College), and Maria Varaki (Kadir Has).

It should be an excellent forum. I hope readers who are young academics will consider applying for the fifth one!

The Supreme Court Endorses the Power of the President to Defy Congress in Foreign Affairs

by Julian Ku

I generally read the U.S. Constitution to grant broad powers to the President in the conduct of foreign affairs (see here for my recent take on Presidential war powers), but I am more hesitant to read the Constitution to prohibit congressional override of executive acts.  That is why I disagree with Peter’s implication above that today’s U.S.Supreme Court decision in Zivotofsky in any way cuts back on presidential power in foreign affairs.  I also disagree with Deborah’s characterization of the opinion as “narrow.” To me, it is actually a remarkable endorsement (by justices not named Clarence Thomas) of the President’s power to act in defiance of an express congressional mandate.

Which is a roundabout way of explaining my surprise that the Supreme Court upheld the President’s decision to defy and ignore an express congressional mandate requiring him to allow individuals to list “Jerusalem, Israel” as the place of birth on their passports. I don’t doubt that the President gets to decide whether the U.S. will recognize whether Jerusalem is “in” Israel, but I am a bit surprised to see that majority endorse the power of the President to ignore an express congressional mandate, especially when the majority doesn’t even make clear that the “recognition” power is being affected by a passport listing.

To put in constitutional law-nerd terms, Justice Jackson’s classic concurring opinion in Youngstown Sheet & Tube listed three categories of presidential power: expressly authorized by Congress, not authorized by not prohibited by Congress, and expressly prohibited or mandated by Congress.  This last category, which Jackson described as where the president’s power is at his “lowest ebb,” has never been applied by the Supreme Court before today.  Indeed, many commentators in the context of the commander in chief power have suggested such exclusive powers don’t really exist (see my musings here on this point in the context of the commander in chief power).  Justice Thomas was out on his own island in Hamdi v. Rumsfeld, for instance, but he was relying on a very similar structural argument to the one the Court introduced today.

I think that the President’s recognition power is probably exclusive, but that what constitutes the “recognition” should be interpreted quite narrowly.  That is why I joined Eugene Kontorovich’s amicus brief arguing that a passport designation is not part of the recognition power.  Indeed, if it IS part of the recognition power, the government of China is going to have a pretty good complaint about laws that allow the designation of “Taiwan” on passports. So the Court may have inadvertently created new diplomatic complications in its efforts to avoid other ones.

In any event, the Court could have chosen the “judicially modest” way out. It could have interpreted the relevant statute narrowly to avoid touching on the “recognition” power.  Instead, it reached out to announce judicial endorsement of an exclusive presidential power, and invalidated a law passed by Congress and signed by the President.  I am glad to welcome Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy to the “exclusive presidential power” bandwagon.  Justice Thomas was getting lonely, so I suppose he will be glad to have the company.