Archive of posts for category
International Law in U.S. Courts

So It Turns Out US Ratification of the Convention on the Rights of the Child Would Be Pointless

by Julian Ku

Internationalists critical of U.S. “sovereigntism” almost always point out that the U.S. is one of only three states in the world that has not ratified the U.N. Convention on the Rights of the Child (CRC).  Karen Attiah is the latest to take up this old talking point in the Washington Post.

The United States is part of an elite trio of non-ratifiers, along with Somalia, a country that is virtually in anarchy and consistently appears in the lowest ranks of countries in terms of human development, and South Sudan, the world’s newest country, which dealt with a fair share of civil conflict. Back in 2008, Obama said that it was “embarrassing to find ourselves in the company of Somalia, a lawless land.”

Attiah argues that the rest of world seems to be making lots of progress in improving child welfare, presumably because of the CRC, and the U.S. is falling behind. But this argument buries the lede.  Why?

Because even if the U.S. accedes to the CRC, it is almost certainly going to do so without passing new legislation or enacting new programs to live up to the treaty’s obligations. As it has done with other human rights treaties it has ratified, the U.S. will also declare the CRC non-self-executing, which means it cannot be enforced by US courts absent subsequent legislation by Congress or the States.  It is highly unlikely that US law or policy will be affected dramatically by joining the CRC if these limitations are imposed.

Rather, the argument for joining the CRC is usually not about changing US policy, but simply about the need for the US to be a member in order to credibly promote and support CRC rights and the interest of children around the world.  As an analyst from Human Rights Watch notes in the Economist, “It is awkward when the US tries to promote child rights in other countries—they all remind us that they’ve joined the treaty and we have not.”

If the data Attiah cites is accurate, though, US non-ratification isn’t having much of an impact on whatever benefits the CRC is providing.  Of course, it may be the case that US non-ratification is limiting whatever additional benefits US promotion of the CRC as a member would provide, but this seems unlikely.

Of course, if the CRC is unlikely to change US law or policy, why should anyone oppose it? This is indeed a mystery. The best case I can come up with is that CRC opponents do not trust the Congress, the President, or the courts to honor the non-self-executing pledge that the US has imposed on all other human rights treaties.  This is not totally unreasonable since some leading scholars have questioned the non-self-execution doctrine in this case.   But US courts have not yet shown any interest in forcing human rights treaties into US law against the wishes of the president and Senate, so this fear is somewhat overstated at this stage.

In the end of the day, Attiah’s reporting answers her own headline-question.  The US hasn’t ratified the CRC because doing so would not change the status quo much, if at all.  US policies domestically will be basically the same with or without the treaty, and (as Attiah points out) the rest of the world will do just fine whether or not the US joins.  So US ratification will accomplish pretty much nothing, which is as good a reason as any for why it is not going to happen.

Bond and the Vienna Rules on Treaty Interpretation

by Roger Alford

Tomorrow I have the good fortune of participating in the Notre Dame Law Review symposium with leading foreign relations scholars. The topic of the symposium is Bond v. United States. The keynote will be given by Paul Clement, who won the case for Petitioner.

The focus of my discussion will be the relationship between Supreme Court treaty interpretation and the international approach to treaty interpretation. As readers of this blog well know, the Supreme Court has never followed the international approach to treaty interpretation. In the over forty years since the Vienna Convention on the Law of Treaties was signed, the Supreme Court has not relied on its interpretive methodology on a single occasion. This is despite the fact that the Vienna Convention’s interpretive approach (the “Vienna Rules”) reflected the common practice at the time it was adopted, and now reflects customary international law. This is despite the fact that the United States views the Vienna Convention as the authoritative guide to treaty law and practice.

This is not to suggest that the Supreme Court does not utilize the same interpretive tools as the Vienna Rules. Indeed, at one time or another the Court has used every single interpretive tool reflected in the Vienna Rules. It supports reliance on the ordinary meaning of the terms of a treaty. The Court has held that “[a]s treaties are contracts between independent nations, their words are to be taken in their ordinary meaning as understood in the public law of nations.” It recognizes that a treaty should be construed to give effect to its purposes, stating that “[a] treaty should be generally construed liberally to give effect to the purpose which animates it.” It agrees that a treaty should be read in context, reasoning that “when interpreting a treaty, we ‘begin with text of the treaty and the context in which the written words are used.’” It interprets terms in light of subsequent practice and subsequent agreements. It supports recourse to supplementary means of interpretation, such as the negotiating history. It follows general rules of interpretation such as presumptions and constructions that follow ordinary logic and reason. Thus, although the Court has never systematically followed the holistic, unitary approach of the Vienna Rules, it consistently relies on the same interpretive tools.

Bond v. United States marks an important moment in this history of Supreme Court treaty interpretation. Although it did not cite the Vienna Rules, it is the first time that the Supreme Court has analyzed a treaty (and it’s implementing legislation) using the same methodology as the Vienna Rules. That is, the Court interpreted the treaty “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Because the terms of the treaty were ambiguous and could lead to manifestly absurd and unreasonable results, the Court also applied supplementary means of interpretation, including the negotiating history and a federalism presumption.

The ordinary meaning of the term “chemical weapon” was central to the Court’s analysis. “[A]s a matter of natural meaning, an educated user of English would not describe Bond’s crime as involving a ‘chemical weapon.’” The natural meaning of that term accounts for both the type of chemical used and the circumstances in which they were used. No ordinary person would consider that the chemical Bond used was a deadly toxin of the type the Chemical Weapons Convention was designed to address. The ordinary meaning of a “weapon” is an “instrument of offensive or defensive combat.” Using natural parlance, Bond’s behavior was not combat. Interpreting “chemical weapon” to include Bond’s crime “would give the [implementing] statute a reach exceeding [its] ordinary meaning.” Reliance on the ordinary meaning of “chemical weapon” plays a “limiting role” on the scope of the prohibition, and avoids transforming a “statute passed to implement the International Convention on Chemical Weapons into one that also make it a federal crime to poison goldfish.”

The Court in Bond extensively discussed the object and purpose of the Convention. It began with an image of the ravages of chemical warfare during the First World War as the impetus behind the overwhelming consensus that toxic chemicals should never be used as weapons of war. It cited the bold aspirations expressed in the Convention’s Preamble—the complete elimination of all types of weapons of mass destruction used by state and non-state actors in times of war and peace. These purposes were critical to the Court’s interpretation. “[T]he Convention’s drafters intended for it to be a comprehensive ban on chemical weapons … [and] we have doubts that a treaty about chemical weapons has anything to do with Bond’s conduct.” Given the purpose of the Convention to address “war crimes and acts of terrorism,” the Court concluded that “[t]here is no reason to think the sovereign nations that ratified the Convention were interested in anything like Bond’s common law assault.” It found that Bond’s chemical of choice—an arsenic-based compound that causes minor irritation when touched—bore “little resemble to the deadly toxins that are ‘of particular danger to the objectives of the Convention.’” The “purely local crime” that Bond committed “could hardly be more unlike the uses of mustard gas on the Western Front or nerve agents in the Iran-Iraq war that form the core concerns of the treaty.” Accordingly, the United States and the community of nations have no interest in seeing Bond imprisoned for violating the ban on chemical weapons. “[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”

The Court also repeatedly cited context as an interpretive aid. It concluded that “the context from which the [implementing] statute arose demonstrates a much more limited prohibition was intended” by the ban on chemical weapons. Rather than rely solely on the statutory definition the Court concluded that the “the improbably broad reach of the key statutory definition” was rendered ambiguous by “the context from which the statute arose—a treaty about chemical warfare and terrorism.” The Court interpreted the term “chemical weapon” in light of the entire Convention, including the Preamble, other treaty provisions, and the Annex on Chemicals. These provisions illuminated the purpose and structure of the ban on chemical weapons, and the nature of the banned chemicals.

Most importantly, the Court twice cited another provision of the Convention, which provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.” It cited this provision as contextual support for a federalism presumption. The “constitutional process in our ‘compound republic’ keeps power ‘divided between two distinct governments.’” Faithful to federalism and other constitutional concerns, the Convention only required that “necessary measures” be adopted, leaving to the States how they would be adopted within their constitutional system. This context permitted the Court to interpret the treaty obligation consistent with a federalism presumption, a presumption that has a longstanding history within the Court’s jurisprudence.

Bond raises the possibility that the Court’s interpretive approach could more closely align with the international standard. There already are existing canons of construction that support a greater reliance on the Vienna Rules. Among them is the general rule that treaties are contracts between nations that should be interpreted according to a shared understanding. As the Court recently put it, “[a] treaty is in its nature a contract between nations, not a legislative act.” Therefore, “it is our responsibility to read the treaty in a manner consistent with the shared expectations of the contracting parties.” If the shared expectations of the contracting parties is that treaty terms should be interpreted according to the Vienna Rules, then it follows that the Court could apply that canon not only to interpret the meaning of specific treaty terms, but also to its interpretive methodology. It would not do so because the United States has ratified the Vienna Convention or that the Vienna Rules are otherwise part of United States law. Rather, the Court would rely on them because with every treaty the contracting parties have the expectation that the treaty terms will be interpreted using the Vienna Rules.

Another canon of construction is that the Court should give deference to the Executive Branch’s interpretation of treaties. If the Executive Branch recognizes that the Vienna Rules are the authoritative guide to treaty interpretation, then the Court should give great weight to that conclusion. Ordinarily this deference applies to the Executive Branch’s interpretation of specific treaty terms. But it could also support the Executive Branch’s support for the Vienna Rules as the authoritative guide to treaty interpretation. As the United States argued in one recent case, “[a]lthough the United States has not ratified the Vienna Convention on the Law of Treaties, the United States generally recognizes the Convention as an authoritative guide to treaty interpretation.” If the United States views the Vienna Rules as the authoritative guide to treaty interpretation, and the Supreme Court gives deference to Executive Branch’s interpretation of treaties, then the Court could rely on the Vienna Rules in deference to the Executive Branch.

The Supreme Court has long ignored the Vienna Rules. Bond does not change that fact, but it does give support for courts to rely on the interpretive tools that form the basis for the Vienna Rules. The Court has always accepted the tools of interpretation reflected in the Vienna Rules. It now has accepted those tools as part of a holistic, unitary approach. The Vienna Rules are hidden behind the veil of Bond’s interpretative methodology. Consistent with accepted canons of construction, the Court could rely on the Vienna Rules more explicitly.

Lawfare Podcast on al-Bahlul

by Kevin Jon Heller

While in DC last week for the ICC/Palestine event at George Mason — I’ll post a link to the video when it becomes available — I had the pleasure of sitting down with Lawfare’s Wells Bennet and Just Security’s Steve Vladeck to discuss the oral argument at the DC Circuit on the al-Bahlul remand, which the three of us attended that morning. You can listen to the podcast at Lawfare here; Steve did most of the talking, because he understands the constitutional issues in the case better than anyone, but I weighed in a few times on the international-law side. I hope you enjoy it — and my thanks to Wells for inviting me to participate.

Further Thoughts: It is Indeed Legal for a U.S. Court Hold Argentina in Contempt

by Julian Ku

I am fascinated by the ongoing Argentina debt litigation saga (and not just because it looks more and more like a train wreck), but because it is forcing U.S. courts to burrow into even fuzzier nooks and crannies of the Foreign Sovereign Immunities Act to figure out what exactly US litigants can do when suing an intransigent foreign sovereign like Argentina.  I promised I would revisit the question of whether the U.S. judge’s contempt order against Argentina on Monday was legal, and here is my further (although still somewhat brief) analysis.

1) It is legal and consistent with U.S. domestic law for a U.S. court to issue contempt sanctions against a foreign sovereign.  

The most recent authority for this proposition is the quite recent 2011 opinion from the U.S. Court of Appeals for the D.C. Circuit, F.G. Hemisphere Associates v. Congo.   In that case, the D.C. Circuit rejected the argument by Congo (and the U.S. Government) that contempt sanctions due to Congo’s refusal to comply with discovery orders would violate the FSIA.  Following the U.S. Court of Appeals for the Seventh Circuit in Autotech Techs. v. Integral Research & Dev., 499 F.3d 737, 744 (7th Cir.2007), the Court held that nothing in the text or the legislative history of the FSIA suggested that there was any limitation on the inherent judicial power to issue contempt sanctions. It also rejected contrary precedent from the U.S. Court of Appeals from the Fifth Circuit in Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006).

I think the DC and Seventh Circuits are right that nothing in the text or the legislative history of the FSIA bars a judicial contempt order against a sovereign.

2. There is some authority for the proposition that judicial contempt orders against foreign sovereigns are not accepted under international law, but there is reason to question whether there is international consensus supporting this authority.

Argentina can, and did, rightly point to Article 24 of the Convention on Jurisdictional Immunities of States and their Property as authority against the legality of contempt sanctions against sovereigns.

Article 24
Privileges and immunities during court proceedings
1. Any failure or refusal by a State to comply with an order of a court of
another State enjoining it to perform or refrain from performing a specific act
or to produce any document or disclose any other information for the purposes
of a proceeding shall entail no consequences other than those which may result
from such conduct in relation to the merits of the case. In particular, no fine or
penalty shall be imposed on the State by reason of such failure or refusal.

I think that the language of this provision seems to pretty clearly cover the situation in the Argentina debt case.  But I am less sure that Argentina is correct to call Article 24 of the Convention a rule of customary international law.

U.S. briefs citing Article 24 have been careful to call this rule an “international norm or practice” rather than a rule of international law.  There are good reasons to be circumspect on this point. After all, the Convention on Jurisdictional Immunities has NOT come into force, and has NOT even been signed by either Argentina or the United States, and has only been ratified by 14 other countries.  Moreover, the particular rule in Article 24 banning all court contempt-like orders is much broader than the domestic laws of states like the U.S. (see above) and even those agreed to by European states in the European Convention on State Immunity.  Article 17 of the European Convention is focused only on contempt orders for failure to produce documents, not all contempt orders for any act by the foreign sovereign.

So in conclusion, I am very confident that U.S. domestic law does NOT preclude a contempt order of any kind against a foreign sovereign.  I am somewhat confident that there is no clear consensus under international law that all contempt orders (even those unrelated to discovery) are prohibited, although I do think Argentina has a stronger case on this front.  However, in U.S. law, a rule of customary international law cannot override a federal statute, especially when the international acceptance of that rule remains uncertain.

As a practical matter, I do wonder if this whole contempt kerfuffle is just symbolic. The contempt order adds to Argentina’s obligations to pay, but it doesn’t really make it any easier for the creditors to collect since Argentina’s non-commercial assets in the U.S. remains immune from collection. While Argentina’s government may be outraged, this contempt order doesn’t really change the overall dynamic of this case, which remains a standoff that neither side is winning.

 

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.

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)…

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.

When Treaties Supersede Statutes

by Roger Alford

Anyone familiar with foreign relations law hears the common refrain that treaties almost never supersede statutes under the last-in-time rule. Until recently, it was certainly my understanding that the ancient Supreme Court case of Cook v. United States was the only significant example in which a self-executing treaty trumped an earlier conflicting statute. But my recent research on the last-in-time rule indicates that there are several examples in which that rule has been applied to give effect to a self-executing treaty that conflicts with an earlier federal statute.

In particular, numerous mutual legal assistance treaties (MLATs) have been adopted to facilitate effective investigation and prosecution of criminal activities. These MLATs streamline the process of letters rogatory and guarantee that the United States will provide greater legal assistance with respect to discovery requests by foreign governments for use in criminal proceedings abroad. These treaties are self-executing and conflict with an earlier statute, 28 U.S.C. 1782, which grants courts significant discretion to deny discovery requests based on substantive protections relating to, inter alia, privileged evidence and foreign discoverability. In other words, pursuant to the MLATs, discovery requests are direct and automatic, not indirect and discretionary as required under Section 1782.

For example, in In re Premises Located at 840 140th Avenue NE, Bellevue Washington, the Ninth Circuit held that “a ratified self-executing treaty generally stands on the same footing as a federal statute, that is, a later in time self-executing treaty has the same effect on an existing federal statute as a later-in-time act of Congress.” Consequently, the Ninth Circuit held that, in light of the US-Russia MLAT, courts do not have the broad discretion conferred by Section 1782 to deny the Russian’s request for legal assistance in gathering evidence in the United States.

Similarly, in In re Commissioner’s Subpoenas, the Eleventh Circuit interpreted the US-Canada MLAT as a self-executing treaty that need not comply with the substantive obligations of Section 1782. “A treaty, when ratified, supersedes prior domestic law to the contrary, and is equivalent to an act of Congress…. [T]he Treaty substantively stands on its own as a law and therefore such MLAT requests need not comply with the substantive restrains associated with requests made solely under 28 U.S.C. 1782.” The foreign discoverability requirements recognized by Section 1782 did not apply and the MLAT required issuance of the subpoenas.

Finally, in In re Erato, an American mother had challenged a Dutch discovery request pursuant to Section 1782’s recognition of foreign privilege laws. If Section 1782 controlled the mother would not have to testify against her son because Dutch law recognizes parent-child privilege. The Second Circuit held that “existing law under Section 1782 does not control this case…. the [US-Netherlands MLAT] Treaty is self-executing and … will amend and supplement preexisting law in several aspects. We are bound to give effect to the Treaty because it is self-executing…. To the extent that the Treaty is inconsistent with a preexisting statutory provision, the Treaty supersedes that provision.” Consequently, the court prevented application of foreign testimonial privilege and required the mother to testify against her son.

These cases do not obviate the general point that the last-in-time rule typically results in the enforcement of subsequent statutes that conflict with earlier treaties. But they should at least put to rest the canard that the last-in-time rule never results in the enforcement of self-executing treaties over earlier federal statutes.

Who Knew Al-Qassam Was the Most Moral Army in the World?

by Kevin Jon Heller

Today’s Jerusalem Post features an article discussing testimony by a former commander of British forces in Afghanistan that purports to demonstrate the IDF takes more care in avoiding civilian casualties than any other army in the world. Here is a snippet:

Israel’s ratio of civilian to military casualties in Operation Protective Edge was only one-fourth of the average in warfare around the world, former commander of British forces in Afghanistan Col. (res.) Richard Kemp told the Knesset Foreign Affairs and Defense Committee Wednesday.

Kemp pointed out that, during the operation, there was approximately one civilian casualty for ever terrorist killed by the IDF, whereas the average in the world is four civilians for every combatant, and that, when taking into consideration Hamas’s use of human shields, this shows how careful the IDF is.

“No army in the world acts with as much discretion and great care as the IDF in order to minimize damage. The US and the UK are careful, but not as much as Israel,” he told the committee.

Kemp, who has long openly admired the IDF’s military tactics and testified in Israel’s favor to the Goldstone Commission following Operation Cast Lead in 2009, visited Israel during Operation Protective Edge.

If this is the metric we should use to determine how much “care” a military takes in its operations, it’s worth noting that the IDF actually runs a distant second in the care department to Hamas’s al-Qassam Brigades. According to the UN’s Office for the Coordination of Humanitarian Affairs (OCHA), the Brigades have killed 65 IDF soldiers and four Israeli civilians during Operation Protective Edge — a staggering 16-1 combatant:civilian kill ratio. According to Col. Kemp’s logic, therefore, the al-Qassam Brigades are at least 4X more careful than the IDF regarding collateral damage to civilians — and 16X more careful than the world army average. Amazing!

NOTE: I do not actually believe that al-Qassam is the most moral army in the world. I provide the analysis to illustrate that absolutely nothing can be learned about how much care a military takes by comparing — in an utterly decontextualised way —  the combatant:civilian kill ratio in one of its operations to the combatant:civilian kill ratios in different conflicts fought by different militaries. To begin with, the jus in bello concept of proportionality is operation-specific: we determine whether an attack is proportionate by comparing anticipated military advantage to expected civilian damage. Inter-conflict comparisons are irrelevant. Moreover, the proportionality of an attack tells us very little about whether that attack was indiscriminate: an indiscriminate attack can involve low civilian casualties, or even none at all, because the concept of discrimination focuses on methods, not on outcomes. Indeed, were it otherwise, it would be difficult to condemn Palestinian rocket attacks on Israeli civilians as indiscriminate, given that more than 12,000 rockets have killed fewer than 30 Israelis in the past 13 years. Those rocket attacks are indiscriminate because they cannot distinguish between legitimate military objectives and civilians, not because they have led to high civilian casualties.