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International Security

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.

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.

It’s Time to Reconsider the Al-Senussi Case. (But How?)

by Kevin Jon Heller

As readers are no doubt aware, Libya has descended into absolute chaos. As of now, there is quite literally no functioning central government:

Libya’s newly elected parliament has reappointed Abdullah al-Thinni as prime minister, asking him to form a “crisis government” within two weeks even as the authorities acknowledged they had lost control of “most” government buildings in Tripoli.

Senior officials and the parliament, known as the Council of Representatives, were forced last month to relocate from the capital to Tubruq in eastern Libya after fighting broke out between the Dawn of Libya coalition, led by brigades from the city of Misurata, and rival militias based at the city’s international airport.

Since then the airport has fallen to the Islamist-affiliated coalition and Tripoli appears to have slipped almost completely out of the government’s grip.

Mr Thinni’s administration said in a statement posted on its Facebook page late on Sunday night that it had lost control of Tripoli and that its officials had been unable to access their offices, which had been occupied by opposition militias.

“We announce that most ministries, state agencies and institutions in Tripoli are out of our control,” said the government. Some state buildings had been occupied by armed groups and staff, including ministers and undersecretaries, had been threatened and prevented from entering, it said.

“It has become difficult for them to go to their offices without facing either arrest or assassination, especially after several armed formations announced threats against them, attacked their homes and terrorised their families,” the statement added.

The collapse of the Libyan government comes less than five weeks after the ICC Appeals Chamber unanimously decided that the case against Abdullah al-Senussi was inadmissible. In its view at the time — to quote the summary of the admissibility decision — “the case against Mr Al-Senussi is being investigated by Libya and… Libya is not unwilling or unable genuinely to carry out the investigation.”

Whatever the merits of the Appeals Chamber’s decision at the time — and they’re limited — the situation on the ground in Libya has obviously rendered it obsolete. It is now impossible to argue that the Libyan government is “able” to effectively prosecute al-Senussi, no matter how willing it might be. The Court thus needs to reconsider the admissibility of his case sooner rather than later.

Fortunately, the drafters of the Rome Statute anticipated just such a situation. Art. 19(10) specifically provides that  “[i]f the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.” The OTP should submit such a request as soon as possible; whatever hesitation it once had about forcefully asserting the admissibility of the case, there is now no possible justification for not trying to take control of it.

But what about al-Senussi? Can he challenge the inadmissibility decision? It’s a very complicated issue — but I think the best answer, regrettably, is that he cannot…

Israel’s Indiscriminate Attack on Shujaiya

by Kevin Jon Heller

On the record, US officials invariably defend even the most indefensible IDF uses of force in Gaza, most often parroting the Israeli line that the IDF does everything it can to spare civilian lives and that Hamas’s use of human shields is responsible for any innocent civilians the IDF does kill.

When speaking anonymously, however, those same officials tell a very different story.

Exhibit A: an absolutely devastating new article in Al Jazeera America about Israel’s destruction of Shujaiya in Gaza, which involved 258 IDF artillery pieces firing 7,000 high-explosive shells into the neighborhood, including 4,800 shells in seven hours. I’m not sure I’ve ever read quite such damning statements about the IDF’s tactics, going far beyond John Kerry’s widely reported sarcastic comment that the attack was “a hell of a pinpoint operation.” Here is a snippet from the article:

Artillery pieces used during the operation included a mix of Soltam M71 guns and U.S.-manufactured Paladin M109s (a 155 mm howitzer), each of which fires three shells per minute. “The only possible reason for doing that is to kill a lot of people in as short a period of time as possible,” said the senior U.S. military officer who spoke with me about the report. “It’s not mowing the lawn,” he added, referring to a popular IDF term for periodic military operations against Hamas in Gaza. “It’s removing the topsoil.”

“Holy Bejesus,” exclaimed retired Lt. General Robert Gard when told the numbers of artillery pieces and rounds fired during the July 21 action. “That rate of fire over that period of time is astonishing. If the figures are even half right, Israel’s response was absolutely disproportionate.” A West Point graduate, who is veteran of two wars and now the Chairman of the Washington, D.C.-based Center for Arms Control and Non-Proliferation, Gard added that even if Israeli artillery units fired guided munitions, it would have made little difference.

[snip]

Senior U.S. officers who are familiar with the battle and Israeli artillery operations, which are modeled on U.S. doctrine, assessed that, based on the rate of artillery fire into Shujaiya overnight Sunday, IDF commanders weren’t precisely targeting Palestinian military formations, as much as laying down an indiscriminate barrage aimed at “cratering” the neighborhood. The cratering operation was designed to collapse the Hamas tunnels discovered when IDF ground units came under fire in the neighborhood. Initially, said the senior U.S. military officer who spoke with me about the military summaries of IDF operations, Israel’s artillery had used “suppressing fire to protect their forward units, but then poured in everything they had — in a kind of walking barrage. Suppressing fire is perfectly defensible — a walking barrage isn’t.”

The Israelis’ own defense of their action reinforced the belief among some senior U.S. officers that artillery fire into Shujaiya had been indiscriminate. That’s because the Israelis explained the civilian casualty toll on the basis that the neighborhood’s non-combatant population had been used as “human shields” because they had been “ordered to stay” in their homes by Hamas after the IDF had warned them to leave.

“Listen, we know what it’s like to kill civilians in war,” said the senior U.S. officer. “Hell, we even put it on the front pages. We call it collateral damage. We absolutely try to minimize it, because we know it turns people against you. Killing civilians is a sure prescription for defeat. But that’s not what the IDF did in Shujaiya on July 21. Human shields? C’mon, just own up to it.”

As I said, stunning stuff. And utterly damning of the IDF — the “most moral army in the world.” It’s just a shame the US government won’t be more open with what it really thinks about the IDF’s actions. Perhaps then Israel wouldn’t feel free to use force against Palestine with impunity.

NOTE: After reading the article in Al Jazeera America, make sure to read Shane Darcy’s important post at EJIL: Talk! discussing a recent decision by Israel’s Supreme Court that upholds the legality of collective punishment.

IHL’s Era of Application?

by Duncan Hollis

Today marks the 150th Anniversary of the signing of the first Geneva Convention — the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.  12 States signed it on August 22, 1864, and the treaty went on to have 57 parties before being replaced by later Geneva Conventions in 1906, 1929 and 1949.  The ICRC is using the occasion to make a call for more action on international humanitarian law and to spread knowledge about that law more generally (including a 4 minute video on the Rules of War in a Nutshell).  

It’s interesting to think about the full arc of IHL that this anniversary represents. It seems we’ve gone from decades of iteration — where States and others worked to hammer out what rules actually exist — to what is now much more an era of application.  Today’s IHL debates (many of which we’ve hosted here in recent weeks) regularly revolve around where, when and how specific rules apply to particular cases.  Or, they debate which rules exist only in treaty form versus those that have the status of customary international law.  Even in areas of new technology, the prevailing effort is to explain how existing rules govern by analogy (see, e.g., the Tallinn Manual).  These are all important and even laudatory causes.  But it does leave me with a question:  Is the corpus of IHL now largely complete, or should we expect another round of law generation akin to the Geneva Convention projects of 150 and 75 years ago?  Simply put, is there any new IHL to be made, and, if so, what should it be?   

Okay, This Time Britain Really Has Killed Terrorism (Updated)

by Kevin Jon Heller

Last November, I wrote a post entitled “Terrorism Is Dead, and Britain Has Killed It.” I chose that title because I couldn’t imagine a conception of terrorism more absurd than the one argued by the British government and accepted by a Divisional Court: namely, that David Miranda’s mere possession of documents illegally obtained by Edward Snowden qualified as terrorism under the Terrorism Act 2000.

I obviously need to expand my imagination.

Why? Because the British government’s is now arguing that merely watching the video of James Foley’s execution is terrorism. From the Telegraph:

Viewing or sharing the harrowing video of James Foley’s beheading online could be regarded as a terrorist offence, Scotland Yard has warned.

A spokesman for the Metropolitan Police said specialists from the Counter Terrorism unit were continuing to examine the footage in order to look for clues as to the identity of the suspected British jihadist but said the public should refrain from viewing the video.

In a statement a spokesman said: “We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under Terrorism legislation.”

Metropolitan Police Commissioner Sir Bernard Hogan-Howe explained that while viewing the video was technically a crime, his officers would be more focused on tracking down those who shared the footage or glorified it.

Um, no — viewing the Foley video is not “technically a crime.” Foley’s execution is a horrific act by a horrific organisation. But there is absolutely no plausible argument that merely watching a video of it qualifies as terrorism under the Terrorism Act 2000 — not even in light of the awful Miranda judgment. We can see why by quoting the UK Independent Reviewer of Terrorism Legislation‘s summary of that case:

What the Miranda judgment reveals is that the publication (or threatened publication) of words may equally constitute terrorist action. It seems that the writing of a book, an article or a blog may therefore amount to terrorism if publication is “for the purpose of advancing a political, religious, racial or ideological cause”, “designed to influence the government” and liable to endanger life or create a serious risk to health or safety.

There are two obvious problems with considering the mere act of watching the Foley video an act of terrorism. First, watching the video is not “liable to endanger life or create a serious risk of health or safety,” as required by s 1(2) of the Terrorism Act 2000 — unless, of course, we think that anyone who watches it will somehow magically be transformed into an ISIS terrorist. Second, although I don’t understand why anyone would want to watch the savage murder of an innocent person, individuals are clearly not watching the video “for the purpose of advancing a political, religious, racial or ideological cause” or because they intend “to influence the government.” So no, watching the Foley video does not qualify as a terrorist act under s 1(1).

Nor does merely watching the Foley video violate any of the substantive offences in either the Terrorism Act 2000 or the Terrorism Act 2006. (Section 1(1) is not an offence in itself; it provides the definition of terrorism for the substantive offences.) In terms of the Terrorism Act 2000, it’s not “support” under s 12, because that section requires the defendant to have “invite[d] support for a proscribed organisation.” It’s not “use and possession” under s 16, because that section, like s 1(1), requires the specific intent to promote terrorism. It’s not “possession for terrorist purposes” under s 57, because merely having the Foley video on a computer (which streaming does not even involve) does not “give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.” And it’s not “collection of information” under s 58, because an execution video, though disgusting, is not “a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism.”

Merely watching the Foley video also does not run afoul of the Terrorism Act 2006. Section 1 criminalises “encouragement of terrorism,” but it applies only to those who “publish” a statement that encourages “the commission or preparation of acts of terrorism.” Watching a video is not publication. For similar reasons, watching a video does not qualify as “dissemination of terrorist publications” under s 2 — not even in light of s 2(2)(f), which criminalises possessing a terrorist publication “with a view to its” dissemination.

In his most recent report, the Independent Reviewer wrote that “[a] statutory definition [of terrorism] so broad that the enforcement authorities resort to their own rules of thumb in order to make sense of it is unhelpful.” I think the Metropolitan Police’s argument about the Foley video makes his point.

NOTE: I have updated the post in response to Adrian Hunt‘s excellent comment below, which deserves to be read in full.

Should the U.S. Government Change Its Approach to Zero-Day Exploits?

by Chris Borgen

Dan Geer, the chief of information security for In-Q-Tel (essentially, the venture capital fund that supports tech innovation for the CIA) gave a wide-ranging keynote speech at Black Hat, a convention of cybersecurity experts.  A video of the speech is available here.

I want to focus on one specific issue among the many he discussed: his call for the US government to publicly disclose the software loopholes and hacks that it purchases.

I have discussed in other posts (1, 2) the market for information regarding security loopholes known as “zero-day exploits.”  The U.S. is already a big player in this market,  purchasing exploits for use by its intelligence and law-enforcement agencies.

Rather than informing producers, purchasers, or users of the software of the flaws, the U.S. government (and other governments that participate in the exploits market) allegedly require non-disclosure agreements from the hackers who sell exploits so that the holes will stay open as long as possible. This has been called a strategy of offense: trying to maximize intelligence gathering capabilities. Geer  paraphrases a former senior NSA official:

If we were to score cybersecurity the way we score soccer, we would be twenty minutes into the game and the score would be 462 to 456. That is to say: all offense.

He further explains: “Offense is where is where the innovations that only states can afford is going on.”

Some have argued that the result is the widespread use of software riven with security flaws that could have been fixed.  Instead, the U.S. should use its market power to make software more secure by purchasing and then disclosing zero-day exploits.  As reported by Wired, Geer argues that by incentivizing disclosure:

the U.S. can drastically lower the impact of international cyberwarfare. [He explains:] “We don’t need intelligence on what weapons our adversaries have if we have something close to a complete inventory of the world’s vulns and have shared that with all the affected software suppliers.”

As far as I understand, proponents of a strategy of maximizing offensive capability assume that computer systems will always have many holes and the U.S. might as well use these flaws to get as much useful intelligence as possible rather than chasing what they view as the illusory promise of real defense.

I do not know enough about the ins-and-outs of computer security architecture to opine as to whether the U.S. should maintain an offensive strategy or move to securing vulnerable systems with a primarily defensive strategy of disclosure. However, I would suggest that a defensive strategy may be strengthened by international coordination.

In any case, if you are interested in issues of cyber-security then Geer’s speech is a must-listen.

[This post has been corrected to fix the misspelling of Dan Geer's name.]

 

MH17 Should Be Framed as Murder, Not as a War Crime

by Kevin Jon Heller

It has become quite common to describe the downing of MH17 as a war crime. In late July, for example, Navi Pillay, the UN High Commissioner for Human Rights, said that “[t]his violation of international law, given the prevailing circumstances, may amount to a war crime,” More recently, William Burke-White has said that, for framing purposes, “[t]he time has come for governments and international organizations to call the attack on MH17 a probable war crime.” 

[I]f whoever launched the missile did so with the intent of killing the civilian passengers aboard MH17, the act was unmistakably a war crime.

Even if the objective was to strike a Ukrainian transport aircraft, the act likely constitutes a war crime. Fundamental to the law of war, including the law applicable in non-international armed conflicts, is the principle of distinction – the requirement that fighting parties distinguish between civilian and military targets. In the words of the International Committee of the Red Cross, that duty of care includes doing “everything feasible to verify that targets are military objectives.”

In this case, many steps could easily have been taken to differentiate MH17 from a military-transport plane, including visual identification (perhaps with binoculars), radar-signature analysis, and a check of the civilian aircraft transponder-code broadcast. If, as seems likely, these basic steps were not taken, even an accidental strike on MH17 would constitute a war crime.

If the Ukrainian separatists did indeed intend to kill civilians, Bill and Navi Pillay are absolutely right to describe the attack as a war crime — in this case, murder and/or intentionally directing attacks at civilians or civilian objects (to use the Rome Statute’s terminology). But everything we know to date about the attack indicates that the separatists honestly believed MH17 was a Ukrainian military transport, not a civilian airplane. If so, that changes the legal assessment of the attack considerably. The attack would still qualify as murder under domestic law — but it would not qualify as a war crime, under either the Rome Statute or the jurisprudence of the ICTY. (The latter likely representing the customary definition of the war crimes of murder and attacking civilians or civilian objects, which most states would apply in a prosecution based on universal jurisdiction.)

Let’s go in order. The problem with describing the attack on MH17 as a war crime under the Rome Statute is Article 32(1), which provides that “[a] mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.” The actus rei of the war crime of murder and the war crime of intentionally directing attacks at civilians or civilian objects each include a circumstance element: the individuals attacked must qualify as civilians (or as otherwise protected persons). The relevant mens rea for circumstance elements is knowledge, pursuant to Art. 30(3) of the Rome Statute: “For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists.” Black-letter criminal law provides that an honest mistake of fact negatives any mens rea that requires subjective awareness. So if the separatists honestly believed they were attacking a Ukrainian military transport, they were not aware that they were attacking civilians. In which case they could not be convicted of either the war crime of murder or the war crime of intentionally directing attacks at civilians or civilian objects.

The result is no different under the ICTY’s jurisprudence, even though the ICTY applies a lower mens rea to the war crimes of murder and attacking civilians. A complete discussion of the issue is beyond the scope of this post; suffice it to say here that an accused will be responsible for either war crime only if he was reckless toward the possibility that the objects of his attack qualified as civilian. (Dolus eventualis in civil-law terminology.) Recklessness is a subjective mental state in the ICTY’s jurisprudence; as the Trial Chamber noted in Brdjanin, specifically in the context of murder, “the threshold of dolus eventualis entails the concept of recklessness, but not that of negligence or gross negligence.”” Like the ICC, the ICTY recognizes mistakes of fact. As a result, the separatists could not be convicted of either the war crime or murder or the war crime of attacking civilians under ICTY jurisprudence if they honestly believed they were attacking a Ukrainian military transport: although that belief might have been negligent, even grossly negligent, its honesty meant that they were not subjectively aware they were attacking civilians.

The bottom line is that the accidental downing of civilian airplane based on an honest belief that the airplane was a military objective is not a war crime. Failing to take adequate precautions may violate IHL, but it is not criminal. The downing of MH17, therefore, should be framed not as a war crime but as murder.

My Podcast on Palestine and the ICC — and an Additional Thought

by Kevin Jon Heller

I had the pleasure of doing a podcast yesterday with Mark Leon Goldberg, purveyor of the essential UN Dispatch website, on the possibility of Palestine ratifying the Rome Statute or accepting the Court’s jurisdiction on an ad hoc basis. It’s about 20 minutes long, and you can find it here (or on iTunes).

I do want to mention another aspect of Palestine’s decision — one I hadn’t thought about until I read this excellent article in the Guardian by Joshua Rozenberg. (And it’s not just excellent because he quotes me.) As I discuss in the podcast, Palestine has two roads to a potential ICC investigation of Operation Protective Edge: (1) accept the Court’s jurisdiction on an ad hoc basis retroactive to 29 November 2012, the date of UNGA Res. 69/17; or (2) ratify the Rome Statute and then file an ad hoc declaration retroactive to 29 November 2012. Although both roads would give the ICC jurisdiction over the situation in Gaza, there is actually a critical procedural difference between them — assuming that the OTP wanted to investigate (which I still think is extremely unlikely). If Palestine simply accepts the Court’s jurisdiction on an ad hoc basis, the OTP’s decision to investigate would be considered proprio motu — and that decision would be subject to review by the Pre-Trial Chamber. (See, in that regard, the Cote d’Ivoire situation.) By contrast, if Palestine ratified the Rome Statute and then filed an ad hoc declaration, the OTP’s decision to investigate would be based on the referral of a State Party — and would not be subject to Pre-Trial Chamber review.

We’ll see what happens…